Santana v. Garland

92 F.4th 491

Sintia Dines Nivar SANTANA, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.

No. 22-2114

United States Court of Appeals, Fourth Circuit

Argued: December 5, 2023

Decided: February 2, 2024

On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED: Hans Christian Linnartz, LINNARTZ LAW OFFICE, P.A., Raleigh, North Carolina, for Petitioner. Gregory Michael Kelch, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Walter Bocchini, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before WILKINSON, KING, and THACKER, Circuit Judges.

Petition for review denied by published opinion. Judge King wrote the opinion, in which Judge Wilkinson and Judge Thacker joined.

KING, Circuit Judge:

Petitioner Sintia Dines Nivar Santana seeks our review of a final order of the Board of Immigration Appeals (the "BIA") that affirmed the decision of an immigration judge (an "IJ") declaring her ineligible for adjustment of status. Nivar, who was deemed inadmissible for falsely claiming to be a citizen of the United States, presents two contentions of error. First, she asserts that the IJ and BIA erroneously ruled that she was required to establish her admissibility "clearly and beyond doubt," rather than by a preponderance of the evidence. Second, she argues that her evidentiary hearing before the IJ was fundamentally unfair because of the IJ's erroneous admission of a Form I-9 (the "employment eligibility form"). As explained herein, we reject Nivar's contentions of error and deny her petition for review.

I.

A.

Nivar is a native and citizen of the Dominican Republic who was admitted into the United States in May 2000 as a nonimmigrant visitor. Her visa authorized her to remain here for only six months, but she remained well beyond that limit. Her non-citizen son, however, eventually was naturalized through honorable service in the United States Army. The young man was thereby able to submit a "Petition for Alien Relative" form to the Citizenship and Immigration Services (the "CIS") and establish his maternal relationship with Nivar. She then completed a follow-up step and filed a Form I-485 with the CIS, dated July 8, 2014, seeking to adjust her immigration status (the "status adjustment request").

In March 2016, the CIS denied Nivar's status adjustment request, ruling that she was inadmissible for falsely claiming to be a United States citizen when she executed the employment eligibility form in applying for a job in 2013 at Golden Horizons, an elder-care provider in Connecticut. That is, on the form bearing Nivar's signature, there was a checked box that provided an affirmative response that said: "I attest, under penalty of perjury, that I am . . . [a] citizen of the United States." See J.A. 184.¹ Nearly a year after her status adjustment request was denied, in January 2017, the Department of Homeland Security (the "DHS") served Nivar with a notice to appear before an IJ, charging her with removability under the applicable statutory provision, 8 U.S.C. § 1227(a)(1)(B), for overstaying her visa.

B.

1.

At a preliminary hearing before the IJ in July 2018, Nivar conceded removability on the ground that she had overstayed her visa, but renewed her status adjustment request based on the then-approved petition of her soldier son. At a subsequent IJ hearing in August 2018, Nivar's lawyer advised the IJ that Nivar was eager to testify that she did not falsely claim to be a United States citizen on the employment eligibility form, and that someone else had inappropriately made that assertion therein. The IJ calendared an evidentiary hearing concerning the issue of a false citizenship claim for October 29, 2018, and advised the parties that any evidence to be considered had to be filed with the immigration court at least 15 days before the hearing.

During the fixed 15-day window, the DHS did not submit any documentary evidence. Nivar, however, filed evidence with the immigration court, including her affidavit of September 28, 2018. By her affidavit, Nivar acknowledged that her status adjustment request had been denied on grounds that she had falsely claimed to be a citizen. She also swore that she had examined a copy of the employment eligibility form, that she did not recognize it as "something that [she had] ever read or signed," and that she had never "knowingly checked the box that says I am a citizen of the United States." See J.A. 194. Neither party submitted the employment eligibility form to the court.

On October 29, 2018, the IJ conducted an evidentiary hearing on the merits of Nivar's status adjustment request. During the hearing, the IJ advised Nivar that she was required to demonstrate "clearly and beyond doubt" that she was admissible. See J.A. 85. Nivar's lawyer interposed a different legal position, asserting that the applicable standard was proof by a preponderance of the evidence.

When Nivar was on the witness stand, her lawyer sought to show her the employment eligibility form and ask if she recognized it. The IJ, however, advised that he had not been provided with the employment eligibility form by either party. The DHS lawyer believed that the employment eligibility form was already in the record, and when the IJ was unable to find it, the DHS lawyer provided it to the IJ and Nivar's lawyer. When Nivar's lawyer objected on authenticity, the DHS lawyer replied that the employment eligibility form had "been litigated" and was "kept in the regular course." See J.A. 100. The IJ then accepted the employment eligibility form into evidence, over the objection of Nivar's lawyer.

Immediately after the employment eligibility form was accepted into evidence, Nivar's lawyer asked Nivar if she recognized it, and she responded, "Yes, I think I fill[ed] it out." See J.A. 103-04. She then clarified that she had filled out only "the top part" and recognized her handwriting thereon. Id. at 104-05. Nivar also testified, however, that she did not remember checking the box indicating that she was "[a] citizen of the United States." Id. at 105, 184.

A woman named Kathy DeVeau — an administrator for Golden Horizons elder care when Nivar applied for work — also testified. DeVeau agreed that the employment eligibility form related to Nivar's hiring. She recognized her own handwriting on the portion of the employment eligibility form for driver's license information and recognized the handwriting of a coworker — Jan Hamilton, an Assistant President of Golden Horizons — on the social security portion thereof. When asked if Nivar had checked the box indicating that she was a United States citizen, DeVeau did not know. She went on to testify that Nivar could have checked the box, but believed that Hamilton "probably" placed the checkmark on the employment eligibility form. See J.A. 161. DeVeau believed this because she had seen Hamilton "do [that to] other documents." Id. at 166. According to DeVeau, Nivar never claimed to be an American citizen and had disclosed to DeVeau that she was not.

Another exhibit submitted to the IJ was a letter from Hamilton, who said that she did not place the checkmark on the employment eligibility form and instead asserted that it might have been DeVeau that checked the box. Hamilton said that she "would be surprised if Ms. Nivar knowingly checked the box claiming to be a [United States] citizen." See J.A. 189. Hamilton did not believe Nivar would have knowingly checked the box because (1) Nivar had never claimed to be a citizen, (2) they had talked about Nivar's family in the Dominican Republic, and (3) Nivar was a "completely honest individual." Id.

2.

By written decision of November 2018, the IJ denied Nivar's status adjustment request and ordered her removed. In denying Nivar's request, the IJ ruled that Nivar was "in the position of an alien applying for admission to the United States." See J.A. 58. As such, Nivar bore the burden of establishing "clearly and beyond doubt [she was] entitled to be admitted and is not inadmissible." Id. From there, the IJ reasoned that Nivar was inadmissible for falsely claiming to be a citizen on the employment eligibility form because the record evidence was "inconclusive." Id. at 59. With no one confirming who had checked the box on the employment eligibility form, the IJ ruled that Nivar had not proved "clearly and beyond doubt" that she had not checked the box claiming citizenship. Id. at 58.

C.

In December 2018, Nivar filed a timely notice of appeal with the BIA. On appeal, Nivar maintained that she only needed to demonstrate her admissibility by a preponderance of the evidence, and not by evidence that was clear and beyond doubt. She also challenged the IJ's admission of the employment eligibility form, along with the IJ's weighing of the evidence.

After an unexplained delay of nearly four years, in October 2022, the BIA affirmed the IJ's decision and dismissed Nivar's appeal. The BIA reasoned that precedents of the BIA and relevant court of appeals make clear that Nivar's burden is to satisfy the "clearly and beyond doubt" standard. See J.A. 5. The BIA reiterated that an applicant for adjustment of status must satisfy the higher burden because that type of applicant is in a similar position to a noncitizen seeking entry. The BIA also ruled that the IJ had not erred in admitting the employment eligibility form into evidence because Nivar had not shown that its admission was fundamentally unfair. The BIA emphasized that Nivar conceded that her handwriting was on the employment eligibility form and she had recognized it as a document that she had "fill[ed] out." See J.A. 6.

Finally, the BIA upheld the IJ's weighing of the evidence and was satisfied that the IJ had not erred. The BIA ruled that, although Nivar acknowledged that she did not check the box on the employment...