Karen Henry v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: May 2, 2018
• Docket: 17-3025
• Status: Unpublished

Opinion

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 17-3025

KAREN SHANAIR HENRY, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

__________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No.: A205-986-944) Immigration Judge: Steven A. Morley _____________________________

Submitted under Third Circuit L.A.R. 34.1(a) on April 17, 2018

Before: GREENAWAY, JR., RENDELL, and FUENTES, Circuit Judges

(Opinion Filed: May 2, 2018)

O P I N I O N* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RENDELL, Circuit Judge:

Karen Shanair Henry 1 petitions for review of the Board of Immigration Appeals’

(“BIA”) order affirming the Immigration Judge’s (“IJ”) decision of inadmissibility and

order of removal. The IJ sustained four independent charges of inadmissibility against

Henry: (1) alien present in the U.S. without being admitted or paroled (8 U.S.C. §

1182(a)(6)(A)(1)); (2) alien who by fraud or willful misrepresentation procured or sought

to procure a visa, other documentation or admission into the U.S. or other benefit under

the Immigration and Nationality Act (“INA”) (8 U.S.C. § 1182(a)(6)(C)(i)); (3) alien who

falsely represented herself to be a U.S. citizen for any purpose or benefit under federal or

state law (8 U.S.C. § 1182(a)(6)(C)(ii)(I)); and (4) alien who has been convicted of or

who admits to committing acts which constitute a crime of moral turpitude (8 U.S.C. §

1182(a)(2)(A)(i)(I)).

Henry concedes that she was convicted of a crime of moral turpitude. Br. for

Appellant at 26. Our review is therefore limited to constitutional and legal issues; we do

not review the agency’s findings of fact. See 8 U.S.C. § 1252(a)(2)(C)-(D); Pierre v.

Att’y Gen. of U.S., 528 F.3d 180, 184 (3d Cir. 2008). Henry argues that she is not

inadmissible under 8 U.S.C. § 1182(a)(6)(A)(1), (a)(6)(C)(i), or (a)(6)(C)(ii)(I). She also

argues that her inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) should be waived.

These arguments rely in part on the IJ’s factual findings, which are outside the scope of

our review. To the extent that her arguments raise reviewable legal issues, they are

without merit. We will therefore deny Henry’s petition for review.

1 The petitioner also goes by the name Karen Ming Henry. 2 I. Background

Henry is a Jamaican citizen who entered the United States some time in or before

2012. In 2012, Henry applied for a U.S. passport, falsely claiming to be a U.S. citizen.

SA59. As a result, Henry was charged with violating 18 U.S.C. § 1542, which prohibits

knowingly making a false statement in an application for a U.S. passport. SA59, 62.

Henry pled guilty to violating 18 U.S.C. § 1542 in the United States District Court for the

District of Delaware. Henry v. United States, No. 1:12-cr-00065-RGA, 29014 WL

5307177 (D. Del. Oct. 17, 2014).

Henry was placed in removal proceedings on November 14, 2013. SA 70-72. The

Department of Homeland Security (“DHS”) charged Henry as inadmissible on four

independent grounds under 8 U.S.C. § 1182: (1) alien who is present in the U.S. without

being admitted or paroled (§ 1182(a)(6)(A)(i)); (2) alien who by fraud or willful

misrepresentation procured or sought to procure a visa, other documentation, or

admission into the U.S. or other benefit under the INA (§ 1182(a)(6)(C)(i)); (3) alien who

falsely represented herself to be a U.S. citizen for any purpose or benefit under federal or

state law (§ 1182(a)(6)(C)(ii)(I)); and (4) alien who has been convicted of or who admits

to committing acts which constitute the essential elements of a crime involving moral

turpitude (§ 1182(a)(2)(A)(i)(I)). SA72.

The IJ concluded that DHS had produced sufficient evidence of Henry’s alienage,

including a Jamaican birth certificate in Henry’s name and her own previous admission

3 that she was not a U.S. citizen. 2 A12, 38. The burden then shifted to Henry to show the

time, place, and lawful manner of her entry into the U.S. 8 U.S.C. § 1361. An alien who

fails to meet this burden is presumed to be in the U.S. in violation of the law. Id.

According to Henry, she entered the U.S. in 1998 and was legally admitted at that

time. SA6-7. However, DHS presented evidence showing that Henry had applied for a

U.S. non-immigrant visa (“NIV”) at the U.S. consulate in Kingston, Jamaica, in 2005. 3

A68. The application included a picture of Henry and a set of fingerprints matching

Henry’s. Id. Henry denied having been in Jamaica in 2005, but the IJ did not find her

testimony credible. A14. The IJ therefore concluded that, regardless of whether Henry

had been admitted to the U.S. in 1998, Henry had been in Jamaica in 2005 and had

subsequently re-entered the U.S. at some point. Since Henry failed to present any

evidence of a legal re-entry into the U.S. in or after 2005, the IJ concluded that Henry

was inadmissible as an alien present in the United States without being admitted or

paroled under 8 U.S.C. § 1182(a)(6)(A)(i). A10.

The IJ sustained the remaining three charges of inadmissibility as well. When

Henry pled guilty to violating 18 U.S.C. § 1542, she admitted in her plea colloquy that

she had knowingly misrepresented herself as a U.S. citizen to secure a U.S. passport.

A58-59. This rendered Henry inadmissible as an alien who attempted to procure a visa or

other documentation through willful misrepresentation under 8 U.S.C. § 1182(a)(6)(C)(i)

and as an alien who falsely represented herself to be a U.S. citizen under 8 U.S.C. §

2 Henry does not challenge the IJ’s finding of alienage on appeal. 3 The NIV application was refused in 2005. A68. 4 1182(a)(6)(C)(ii)(I). Henry testified before the IJ that, at the time she applied for the

passport, she believed she was a U.S. citizen. However, the IJ did not credit this self-

serving testimony because it was “belied by the clear and unequivocal statements” she

had made before the District Court and because Henry was not an overall credible

witness. A14-15, A17. Finally, the IJ sustained the charge of inadmissibility under 8

U.S.C. § 1182(a)(2)(A)(i)(I) because making a false statement to secure a government

benefit is a crime involving moral turpitude. Rodriguez v. Gonzalez, 451 F.3d 60, 61 (2d

Cir. 2006); Matter of Pinzon, 26 I&N Dec. 189 (BIA 2013);. A15. The IJ ordered Henry

removed to Jamaica. A3.

Henry filed a timely Notice of Appeal with the BIA. The BIA affirmed the IJ’s

decision without opinion. A1-2. Henry filed a timely Petition for Review of the BIA’s

decision on September 18, 2017. A18.

II. Standard of Review

We review an IJ’s decision as the final agency decision in cases where the BIA

affirms the decision of an IJ without opinion. Borrome v. Att’y Gen. of U.S., 687 F.3d

150, 154 (3d Cir. 2012).

Henry concedes that she was convicted of a crime involving moral turpitude. Br.

for Appellant at 26. Therefore, our review is limited to constitutional claims and legal

questions, which we review de novo. See 8 U.S.C. §§ 1252(a)(2)(C)-(D); Yusupov v. Att’y

Gen. of U.S., 650 F.3d 968, 977 (3d Cir. 2011). The IJ’s factual and discretionary

determinations are outside the scope of our review. Pierre, 528 F.3d at 184.

III. Analysis 5 Henry does not raise any meritorious legal questions or constitutional claims for

our review. Henry makes four arguments: (1) she was admitted to the U.S. after an

inspection and is therefore not inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i); (2) she

did not willfully provide false information on her passport application and is therefore not

inadmissible under 8 U.S.C. §§ 1182(a)(6)(C)(i); (3) she did not willfully misrepresent

herself as a U.S. citizen and is therefore not inadmissible under 8 U.S.C. §

(a)(6)(C)(ii)(I); and (4) although she committed a crime of moral turpitude, she is eligible

for a waiver of inadmissibility. These arguments rest in part on the IJ’s factual findings,

which are outside the scope of our review. To the extent that her arguments raise legal

questions, they are without merit.

a. Inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i)

First, Henry argues that she is not inadmissible as an alien present in the U.S.

without being admitted or paroled because she was legally admitted to the U.S. in 1998

after an inspection. See Matter of Quilantan, 25 I&N Dec. 285, 310 (BIA 2010) (finding

that an admission after inspection can constitute a legal entry).

However, based on the 2005 NIV application, the IJ concluded that, regardless of

whether Henry was admitted to the U.S. in 1998, she was in Jamaica in 2005 and

therefore re-entered the United States in or after 2005. This finding of fact is outside the

scope of our review.

“It is a general principle of immigration law that an alien who leaves the country

and makes a new entry on his or her return is then subject to all current exclusionary

laws.” Dabone v. Karn, 763 F.2d 593, 595 (3d Cir. 1985). “The new entry stands the

6 alien on the same footing as if it were the initial entry.” Id. Therefore, Henry bore the

burden of proving the time, place, and lawful manner of her re-entry to the U.S. in or

after 2005. 8 U.S.C. § 1361; Ah Chiu Pang v. INS, 368 F.2d 637, 639 (3d Cir. 1966)

(holding that once the government proves alienage, “the burden shift[s] to the [alien] to

justify his presence in the United States”) (citing 8 U.S.C. § 1361). An alien who fails to

meet this burden is presumed to be in the U.S. in violation of the law. Id. Henry presented

absolutely no evidence related to her re-entry, let alone any evidence suggesting that her

re-entry was lawful. Therefore, she is presumed inadmissible under 8 U.S.C. §

1182(a)(6)(A)(i) as an alien present in the U.S. without being admitted or paroled.

b. Inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i)

Next, Henry argues that she is not inadmissible as an alien who by fraud or willful

misrepresentation procured or sought to procure a visa, other documentation, or

admission to the U.S. or other benefit under the INA. To the extent that it raises a legal

issue, this argument lacks merit. Henry pled guilty and admitted to knowingly providing

false information on a passport application in violation of 18 U.S.C. § 1542. A58-59. In

so doing, she admitted that she sought to procure a passport by willfully misrepresenting

herself as a U.S. citizen, which renders her removable under 8 U.S.C. § 1182(a)(6)(C)(i).

Henry argues, as she did in her testimony before the IJ, that her misrepresentation

was not “willful” because she believed she was a U.S. citizen when she applied for the

passport. However, the IJ concluded that Henry was not an overall credible witness, that

her testimony was a “self-serving . . . attempt to escape the consequences of her

actions[,]” and that it was “belied by the clear and unequivocal statements” she had made

7 under oath before the District Court. A14-15, 17. We lack the authority to review this

credibility determination, see Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (noting

that an IJ’s credibility determination is a finding of fact), and therefore disregard Henry’s

self-serving testimony as well.

Henry also argues that 8 U.S.C. § 1182(a)(6)(C)(i) does not apply to false

statements made to obtain a passport. This argument is also without merit, as a passport

certainly qualifies as “other documentation” under the statute. See Cervantes-Gonzalez v.

INS, 244 F.3d 1001, 1004 (9th Cir. 2001) (“Using fraudulent documents to obtain a

passport is conduct that is clearly covered” under the statute). Henry is inadmissible

under 8 U.S.C. § 1182(a)(6)(C)(i).

c. Inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(ii)(I)

Henry also argues that she is not inadmissible under § 1182(a)(6)(C)(ii)(I) as an

alien who falsely represented herself as a U.S. citizen for any purpose or benefit under

federal or state law. This argument suffers from the same flaws as her § 1182(a)(6)(C)(i)

argument. Before the District Court, Henry pled guilty to violating 18 U.S.C. § 1542. In

so doing, she admitted that she knowingly misrepresented herself as a U.S. citizen for the

purpose of obtaining a passport. This renders Henry inadmissible under §

1182(a)(6)(C)(ii)(I). See Rodriguez v. Gonzalez, 451 F.3d 60, 65 (2d Cir. 2006) (holding

that a guilty plea to an offense under 18 U.S.C. § 1542 renders an alien inadmissible

under 8 U.S.C. § 1182(a)(6)(C)(ii)(I)). Again, Henry argues that she thought she was a

U.S. citizen at the time she applied for a passport, but we decline to credit this testimony

given the IJ’s credibility determination.

8 d. Waiver under 8 U.S.C. § 1182(h)(1)(B)

Finally, Henry argues that she is eligible for a waiver of inadmissibility pursuant

to 8 U.S.C. § 1182(h)(1)(B). This statute applies to aliens who are inadmissible under 8

U.S.C. § 1182(a)(6)(C)(i) (committing a crime of moral turpitude), and allows for waiver

of inadmissibility if denying admission would result in extreme hardship to the alien’s

U.S. citizen or lawful permanent resident spouse. 8 U.S.C. § 1181(h)(1)(B). However,

Henry is inadmissible based on three additional independent grounds. Thus, even if

Henry’s inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i) was waived, she would still be

inadmissible and removable under 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(6)(C)(i), and

(a)(6)(C)(ii)(I).

IV. Conclusion

For the foregoing reasons, we deny Henry’s petition for review.