               Case: 17-11551       Date Filed: 06/28/2018       Page: 1 of 18


                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                              ________________________

                                    No. 17-11551
                              ________________________

                                Agency No. A095-418-603


GLADYS TEYE,

                                                                                    Petitioner,
                                            versus

U.S. ATTORNEY GENERAL,

                                                                                  Respondent.

                              ________________________

                         Petition for Review of a Decision of the
                              Board of Immigration Appeals
                               ________________________

                                       (June 28, 2018)

Before MARTIN, JULIE CARNES, and O’SCANNLAIN, ∗ Circuit Judges.

PER CURIAM:




       ∗
          Honorable Diarmuid F. O’Scannlain, United States Circuit Judge for the Ninth Circuit,
sitting by designation.
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      Gladys Teye petitions this Court for review of the order by the Board of

Immigration Appeals (“BIA”) affirming the pretermission of her application for

adjustment of her immigration status. The government argues Teye did not qualify

for adjustment of her status, as a matter of law, because she falsely claimed to be a

U.S. citizen on her 2008 application for a Georgia driver’s license.

                                          I.

      Teye, of Ghana, entered the United States in January 1999 and overstayed

her visitor visa. She later married a U.S. citizen and in January 2003 applied for

adjustment of status based on her marriage. While her adjustment-of-status

application was pending, on January 26, 2008, Teye applied for a Georgia driver’s

license. On the application, she checked “yes” when asked if she was a U.S.

citizen. She got a license with an expiration date of March 15, 2013.

      On January 12, 2009, Teye’s adjustment-of-status application was denied

because she couldn’t prove the “bona fides” of her marriage. The Department of

Homeland Security then issued a notice charging her with removability. In early

2013, Teye acknowledged to an immigration judge (“IJ”) that she was removable

for overstaying her visa. However, the IJ gave her time to file a second application

for adjustment of status based on her daughter’s upcoming naturalization. Once

her daughter became a naturalized U.S. citizen in November, Teye filed her second

adjustment-of-status application.


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       In December 2015, the government moved to pretermit Teye’s second

application. The government argued Teye’s false claim to U.S. citizenship on her

2008 Georgia driver’s license application rendered her ineligible for adjustment of

status as a matter of law. Teye objected. She argued she didn’t need U.S.

citizenship to get a license under Georgia law, and that her then-pending

application for adjustment of status and work permit gave her lawful status

sufficient to get a license.

       The IJ granted the government’s motion to pretermit. The IJ first found

Teye failed to show “her false claim to citizenship was not made ‘knowingly.’”

The IJ next determined that even if Teye’s work permit was enough to give her

lawful status, then-binding Georgia law would have allowed her only a temporary

license until her work permit expired on February 8, 2008. That means if Teye had

relied on her work permit, she would have qualified for a license valid for only two

weeks, rather than the five-year license she received. Finally, the IJ found Teye

failed to rebut the government’s showing that she made a false claim in order to

receive a Georgia driver’s license.

       Teye appealed the IJ’s decision to the BIA. She argued the IJ erred by

failing to consider her then-pending application for adjustment of status. Teye said

her pending application for adjustment of status meant she had “lawful status” as

defined under federal law—specifically the REAL ID Act of 2005 and related


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federal regulations and state laws. She argued that so long as her application

remained pending, she was eligible for a license “in perpetuity.”

      The BIA dismissed Teye’s appeal. The BIA concluded the laws Teye relied

on were not in effect when she applied for a driver’s license, so they could not

support her claim that her pending application for adjustment of immigration status

was enough to establish lawful status. The BIA noted that any lawful status

derived from Teye’s application entitled her to no more than a temporary license

under then-binding Georgia law, while her false claim to U.S. citizenship allowed

her to get a five-year license.

      Teye then filed the petition for review we consider here.

                                          II.

      We review only the BIA’s decision unless the BIA expressly adopts the IJ’s

opinion and reasoning or agrees with the IJ’s findings, in which case we will

review the IJ’s decision as well. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48

(11th Cir. 2010); Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In

cases where a petitioner is seeking and is denied discretionary relief, including

adjustment of status, courts lack jurisdiction to review findings of fact. 8 U.S.C.

§ 1252(a)(2)(B)(i); Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1320 (11th Cir.

2007). However, this Court does have jurisdiction to review constitutional claims

or questions of law, which we review de novo. 8 U.S.C. § 1252(a)(2)(D); Jeune v.


                                           4
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U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). Whether a foreign national

meets the statutory criteria for discretionary relief, including adjustment of status,

is a legal question. See Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562

F.3d 1137, 1144–45 (11th Cir. 2009) (per curiam).

          When courts interpret a statute administrated by an agency, Chevron 1

provides a two-step process. “First, if congressional purpose is clear, then

interpreting courts and administrative agencies must give effect to the

unambiguously expressed intent of Congress.” Cadet v. Bulger, 377 F.3d 1173,

1185 (11th Cir. 2004) (quotations omitted). But when a statute is silent or

ambiguous, and the agency has interpreted it, then the court must determine

whether that interpretation is “reasonable” or “arbitrary, capricious, or manifestly

contrary to the statute.” Id. (quotations omitted). If the interpretation is

reasonable, it is controlling and the court must defer to it. Id. Precedential, three-

member decisions of the BIA interpreting language from the Immigration and

Nationality Act (“INA”) are entitled to Chevron deference. See INS v. Aguirre-

Aguirre, 526 U.S. 415, 425, 119 S. Ct. 1439, 1445–46 (1999) (holding “the BIA

should be accorded Chevron deference”); Quinchia v. U.S. Att’y Gen., 552 F.3d

1255, 1258–59 (11th Cir. 2008) (determining Chevron deference applied to



          1
              Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778
(1984).
                                                    5
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precedential, three-member BIA decisions but not to single-judge BIA decisions

that did not rely on existing BIA or federal court precedential decisions).

                                          III.

      Under the INA, a foreign national who lawfully entered the United States

may apply for her status to be adjusted to that of a permanent resident. 8 U.S.C.

§ 1255(a). In order to get the status adjustment, the foreign national must show she

is “clearly and beyond doubt” admissible to the United States for permanent

residence and not inadmissible for one of the reasons set out in 8 U.S.C. § 1182.

Id. §§ 1229a(c)(2)(A), 1255(a)(2). “Any alien who falsely represents, or has

falsely represented, himself or herself to be a citizen of the United States for any

purpose or benefit under this chapter . . . or any other Federal or State law is

inadmissible.” Id. § 1182(a)(6)(C)(ii)(I).

      The government argues Teye falsely claimed U.S. citizenship to get a benefit

under Georgia law, so that, as a matter of law, she was inadmissible under

§ 1182(a)(6)(C)(ii)(I). We have jurisdiction to review this question. See Mejia

Rodriguez, 562 F.3d at 1144–45. Since the BIA did not expressly adopt the IJ’s

findings or decision, our review is limited to the decision made by the BIA. See

Ayala, 605 F.3d at 947–48; Al Najjar, 257 F.3d at 1284.

      Section 1182(a)(6)(C)(ii)(I) requires (1) a false claim to U.S. citizenship;

(2) “for any purpose or benefit”; (3) that exists under federal or state law. Teye


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does not contest that her claim of U.S. citizenship was false. Her argument to the

BIA, and now in this appeal, is that her claim was not made “for any purpose or

benefit” under federal or state law. The BIA set out a standard for determining

whether a false claim has met the statute’s “for any purpose or benefit” clause in

Matter of Richmond, 26 I. & N. Dec. 779 (BIA 2016), which is a precedential,

three-member decision. Because both Teye and the government apply the

Richmond standard without discussing whether § 1182(a)(6)(C)(ii)(I)’s text is

ambiguous or whether the BIA’s interpretation is owed Chevron deference, we

need not decide those questions today. Instead, for purposes of this case, we

assume the statute is ambiguous and that Chevron deference applies.

       In Richmond, the BIA held a foreign national cannot be admitted to this

country under § 1182(a)(6)(C)(ii)(I) if she made (1) a false claim to U.S.

citizenship; 2 (2) “with the subjective intent of achieving a purpose or benefit under

the [INA] or any other Federal or State law”; and (3) “United States citizenship []

actually affect[s] or matter[s] to the purpose or benefit sought.” Richmond, 26 I. &

N. Dec. at 783, 786–87. The BIA said “subjective intent” was a question of fact

for an immigration judge to decide. Id. at 784. However, the presence of a

purpose or benefit—that is, whether citizenship “actually affect[s] or matter[s] to”


       2
         The BIA declined to decide whether the false claim to U.S. citizenship must be made
“knowingly.” Richmond, 26 I. & N. Dec. at 783. As Teye did not challenge the IJ’s finding on
this ground, and neither party argued this issue here, we also leave it for another day.
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a purpose or benefit under federal or state law—must be determined objectively.

Id. at 787. When citizenship is a “prerequisite” to a purpose or benefit, citizenship

actually affects the purpose or benefit. See id. at 786–87 (comparing two cases

“involv[ing] aliens misrepresenting their citizenship and seeking benefits under

Federal law” and concluding “only in [one case] was citizenship a prerequisite to

the loan’s approval—in other words, citizenship status actually affected the [] loan

application”).

       Teye did not challenge the IJ’s finding as to her subjective intent. 3 The sole

question she presented to the BIA and in her petition for review in this court is

whether her citizenship status actually affected her eligibility for a Georgia driver’s

license. The BIA applied Richmond and determined Teye’s false claim to U.S.

citizenship allowed her to get a five-year driver’s license, as opposed to a

temporary one. Because this is a ruling on a question of law, we have jurisdiction

and review it de novo. See 8 U.S.C. § 1252(a)(2)(D); Jeune, 810 F.3d at 799.

       In 2008 Georgia allowed non-citizens to get a temporary driver’s license if

they met certain requirements, but issued five- or ten-year licenses only to U.S.

citizens. Specifically, Georgia law at the time allowed “an applicant who presents

in person valid documentary evidence of . . . lawful presence in the United States

under federal immigration law” to get a “temporary license.” O.C.G.A. § 40-5-

       3
        Thus, if subjective intent were all that § 1182(a)(6)(C)(ii)(I) required, Teye would be
inadmissible.
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21.1(a) (2006). The temporary license was “valid only during the period of time of

the applicant’s authorized stay in the United States.” Id. Thus a temporary license

expired on the same date as the expiration of the documentation allowing a foreign

national’s lawful presence. Ga. Comp. R. & Regs. 375-3-2-.01(1)(b) (2008).

Beyond that, “[i]f the person’s immigration documentation d[id] not bear an

expiration date,” she got a temporary license “valid for one (1) year.” Id. In

contrast, licenses issued to “citizens of the United States expire[d] on the person’s

birthday in the fifth (5th) or tenth (10th) year after issuance.” Id.

375-3-2-.01(1)(a).

      U.S. citizenship was a prerequisite to getting the five-year driver’s license

Teye got on January 26, 2008. Her false claim of citizenship therefore actually

affected her eligibility for a benefit under Georgia law, making her inadmissible

under § 1182(a)(6)(C)(ii)(I). See Richmond, 26 I. & N. Dec. at 786–87. Teye’s

petition for review is therefore

      DENIED.




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O’SCANNLAIN, Circuit Judge, specially concurring:

      While I join the court’s opinion, I write separately to address the

applicability of the Board of Immigration Appeals’ (BIA) interpretation of 8

U.S.C. § 1182(a)(6)(C)(ii)(I), as expressed in its Matter of Richmond decision. See

26 I. & N. Dec. 779 (B.I.A. 2016). As the court holds today, we need not—and

therefore do not—decide in this case whether to adopt such interpretation of the

statute. Neither party has argued the underlying question, and our answer to it

would not affect the outcome of Teye’s petition for review. Nonetheless, I have

some concern about the reasonableness of the BIA’s interpretation offered in

Richmond, which the parties in this case seem to accept as the controlling law.

                                            I

       Section 1182(a)(6)(C)(ii)(I) renders inadmissible any alien who “has falsely

represented . . . herself to be a citizen of the United States for any purpose or

benefit under . . . Federal or State law.” To interpret such provision, a court must

thus consider (at least) two separate questions: (1) what sorts of purposes and

benefits are covered by the statute and (2) what it means for a person to have

falsely represented her citizenship “for” such a purpose or benefit.

      In a case like this, the answer to the first question is easy. There is no real

dispute that a positive legal benefit like a state-issued driver’s license is indeed a


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“benefit under” state law. The question then becomes what must be shown to

establish that an alien’s false representation of citizenship was made “for” such a

benefit. Is it sufficient that she subjectively intended her false statement to help

her get the benefit (i.e., she lied with the goal of influencing the licensing

decision)? Must her lie also have objectively mattered to her receipt of the benefit

(i.e., her claim of citizenship was in fact material to the issuance of the license)?

Or perhaps either—subjective purpose or objective materiality—alone will suffice.

      Both parties assume that the answers to these questions are supplied by the

standard set forth by the BIA in Richmond. There, the BIA determined that the

statute requires both that the alien falsely claimed citizenship “with the subjective

intent of achieving a purpose or obtaining a benefit under” state or federal law and

that such claim of citizenship “must actually affect or matter to the purpose or

benefit sought.” 26 I. & N. Dec. at 786–87. Under standard principles of Chevron

deference, we would defer to the BIA’s interpretation if we determined it to be a

reasonable construction of an otherwise ambiguous statute. See Quinchia v. U.S.

Att’y Gen., 552 F.3d 1255, 1258–59 (11th Cir. 2008). Even if the statute were

determined to be ambiguous, however, I am not persuaded that the BIA’s analysis

in Richmond is indeed reasonable.




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                                               A

      For our purposes, the key holding from Richmond is that

§ 1182(a)(6)(C)(ii)(I) renders an alien inadmissible only if her false representation

of U.S. citizenship was in fact material to the purpose or benefit she sought to

obtain by telling the lie. Such holding clearly pertains to the second question in the

required analysis: what it means for an alien to lie “for” a purpose or benefit under

state or federal law. Unfortunately, the BIA arrived at its conclusion in a very

different way, by conflating it with the antecedent question of what qualifies as a

“purpose or benefit” under the law in the first place. I harbor doubts over whether

such analysis is logically sound.

                                               1

      In Richmond, the BIA framed its materiality analysis around the meaning of

a “purpose or benefit under” state or federal law. See id. at 784–87; accord

Richmond v. Holder, 714 F.3d 725, 729–31 (2d Cir. 2013). The BIA echoed the

Second Circuit’s observation that the statute’s “‘purpose or benefit’ requirement

‘cannot be read so broadly that it fails to exclude anything. There must be some

situation in which an alien falsely represents himself to be a citizen for some

purpose that does not fall under federal or state law.’” Matter of Richmond, 26 I.

& N. Dec. at 784 (quoting Richmond, 714 F.3d at 729). The BIA reasoned that, to

ensure such language is not mere surplusage, “the presence of a purpose or benefit
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must be determined objectively—that is, the United States citizenship must

actually affect or matter to the purpose or benefit sought.” Id. at 786–87.1

       The BIA’s conclusion does not seem to follow from the statutory language it

purports to interpret. Certainly, the statutory phrase “purpose or benefit under . . .

Federal or State law” should not be read as mere surplusage. 8 U.S.C.

§ 1182(a)(6)(C)(ii)(I). That language must exclude some purposes or benefits, and

it does: those which do not arise under state or federal law. The statute therefore

applies only to false representations made to obtain benefits or purposes that exist

by operation of the law (e.g., state licenses, welfare benefits, etc.). So the object of

the alien’s misrepresentation must be some public, legally created benefit or

purpose as opposed to anything that might be considered generally “beneficial.”

See, e.g., Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (minimizing risk

that arresting officers would report unlawful immigration status is not a relevant

benefit under the statute because it is not “a benefit created by law and

administered by the police”). But it is beside the point whether such legal benefit

is also contingent upon a showing of citizenship. Even a state-law created benefit




       1
         Rather unhelpfully, the whole of the BIA’s analysis was to recite the details of a
handful of Court of Appeals cases in which the question presented was not actually answered.
26 I. & N. Dec. at 785–87. Then, with little explanation for how it arrived there, the BIA simply
announced its conclusion. See id. at 786–87.


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that does not require the recipient to be a U.S. citizen is still a benefit “under state

law.”

        The BIA’s reasoning might make sense if “purpose or benefit” meant

specifically a “purpose or benefit of United States citizenship.” If the statute

applied only to benefits “of citizenship,” then the government likely would need to

show that citizenship was material to the benefit in question. Yet, the statute does

not speak of benefits “of citizenship” but instead applies to false claims of

citizenship made “for any purpose or benefit” that comes under federal or state

law. 8 U.S.C. § 1182(a)(6)(C)(ii)(I) (emphasis added). That category of benefits

can easily be defined without reference to the materiality of the beneficiary’s

immigration status.

                                                2

        The requirement that an alien’s false claim of citizenship be material to the

benefit sought therefore does not come (as the BIA says in Richmond) from the

statutory language pertaining to purposes benefits “under” the law. Rather, such

an element must come, if anywhere, from the statute’s requirement that the false

claim of citizenship was made “for” such a benefit. Unfortunately, the BIA did not

focus on the meaning of such language. Moreover, I don’t believe one can answer

this question without careful consideration of a Supreme Court opinion largely

disregarded by the BIA, Kungys v. United States, 485 U.S. 759 (1988). There, the

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Supreme Court held that substantially similar language in another immigration

statute plainly does not impose a materiality requirement. Id. at 779–80.

      The statute at issue in Kungys stated that a person is deemed not to be of

“good moral character” (and is thus ineligible for naturalization), if she “has given

false testimony for the purpose of obtaining any benefits under [immigration law].”

8 U.S.C. § 1101(f)(6) (emphasis added). The Supreme Court rejected the

argument that the statute applied only where the false testimony was actually

material to the benefit sought. See Kungys, 485 U.S. at 779–80. The Court

explained that the statute “[o]n its face . . . does not distinguish between material

and immaterial misrepresentations.” Id. at 779. “Literally read, it [applies to a

person] if he has told even the most immaterial of lies with the subjective intent of

obtaining immigration or naturalization benefits. We think it means precisely what

it says.” Id. at 779–80. The Court observed that the lack of a materiality

requirement might change little in practice as “it will be relatively rare that the

Government will be able to prove that a misrepresentation that does not have the

natural tendency to influence the decision regarding . . . benefits was nonetheless

made with the subjective intent of obtaining those benefits.” Id. at 780–81. Still,




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the Court saw “no reason for straining to avoid [the] natural meaning” of the

statute, which contained no materiality requirement. Id. at 781. 2

       Nearly the same textual analysis applies to the statute at issue here. Just like

the statute in Kungys, § 1182(a)(6)(C)(ii)(I) applies to anyone who makes a certain

false statement “for any purpose or benefit under” federal or state law, without any

mention of the materiality of such a statement. Moreover, while

§ 1182(a)(6)(C)(ii)(I) is silent as to materiality, the statute’s immediately preceding

subsection explicitly requires materiality in different circumstances. That

subsection renders inadmissible any alien “who, by fraud or willfully

misrepresenting a material fact, seeks to procure” certain immigration benefits. Id.

§ 1182(a)(6)(C)(i) (emphasis added). The stark contrast between these

neighboring subsections’ treatment of materiality only further underscores the

Supreme Court’s point in Kungys that the lack of an express materiality

requirement controls.3




       2
          In Richmond, the BIA cited and followed Kungys, but only for its holding that the alien
must harbor the subjective intent to obtain a purpose or benefit. 26 I. & N. Dec. at 784. The
BIA said nothing about the critical point in Kungys that such subjective intent alone is enough,
and there is no need for the alien’s misrepresentation to have been objectively material to the
benefit sought.

       3
          An obvious inference after comparing the two sections is that the materiality element
was included to limit the scope of § 1182(a)(6)(C)(i), which applies broadly to lying about any
fact to procure certain benefits, whereas the provision in this case applies only to lying about
being a citizen. Congress might have determined that falsely claiming citizenship in an effort to
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       Here, we leave for another day the question whether, in light of the statutory

text and the Supreme Court’s guidance in cases like Kungys, § 1182(a)(6)(C)(ii)(I)

is ambiguous as to the question of materiality. There might remain reasonable

ways to distinguish Kungys and to conclude that the statute implicitly contains a

materiality requirement. But even if the statutory language could be determined to

be ambiguous on this question, I hesitate to conclude that the BIA’s analysis in

Richmond is sound. That is, even if the result the BIA reached might be

permissible under the statute, the reasoning that led to such result does not appear

to have been a rational interpretation of the law.

                                                II

       Other courts have deferred, implicitly or explicitly, to the BIA’s

interpretation in Richmond. See Richmond v. Sessions, 697 F. App’x 106, 107 (2d

Cir. 2017); Vega v. Lynch, 664 F. App’x 554, 558–59 (6th Cir. 2016). But we are

reminded that Chevron is not an invitation to “reflexive[ly] defer[]” to a BIA

interpretation which “finds little support in the statute’s text.” Pereira v. Sessions,

No. 17-459, 2018 WL 3058276, at *14 (U.S. June 21, 2018) (Kennedy, J.,

concurring). In light of what I view to be the serious analytical flaws of the BIA’s

decision in Richmond, I question whether the parties are correct to assume that

Richmond’s view of the law should control. Indeed, I question whether

receive public benefits is always significant and relevant to the sound administration of
immigration law, whereas lying about any number of other, trivial facts is not.
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§ 1182(a)(6)(C)(ii)(I) requires a showing of materiality at all. Because neither of

the parties has briefed such issue, and because its answer will not affect the

outcome of this case, it is not well presented for our review. A future case,

however, may require us to consider closely whether the BIA’s interpretation in

Richmond merits the sort of deference the parties wish it be given it here.




                                          18
