14‐187 Ronga v. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of December, two thousand fourteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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CARL BRIAN RONGA, Petitioner,

v. 14‐187

ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent.

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FOR PETITIONER: JAMES E. SWAINE, Law Offices of James E. Swaine, Hamden, Connecticut.

FOR RESPONDENT: CARMEL A. MORGAN, Office of Immigration Litigation, United States Department of Justice (Stuart F. Delery, Assistant Attorney General, Jennifer P. Levings, Office of Immigration Litigation, on the brief), Washington, D.C.

Petition for review of an order of the Board of Immigration Appeals of the

United States Department of Justice.

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the petition for review is DENIED.

Petitioner Carl Brian Ronga, a native and citizen of Kenya, petitions for

review of the order of the Board of Immigration Appeals (ʺBIAʺ) filed December 23,

2013, affirming the June 27, 2011 decision of the Immigration Judge (ʺIJʺ) denying his

application for adjustment of status. The agency concluded that Ronga failed to

establish that he did not falsely represent himself as a United States citizen. We assume

the partiesʹ familiarity with the underlying facts and procedural history of this case.

Under the circumstances of this case, we consider both the IJʹs and the

BIAʹs opinions ʺfor the sake of completeness.ʺ Wangchuck v. Depʹt of Homeland Security,

(2d Cir. 2006). Although we lack jurisdiction to review a discretionary

denial of adjustment of status, see

(a)(2)(B)(i); Ruiz v. Mukasey,

, 275 n.4 (2d Cir. 2009), we retain jurisdiction to review constitutional claims or

questions of law raised in a petition for review, including whether an alien is eligible for ‐ 2 ‐

adjustment of status. We review such claims de novo. See Lecaj v. Holder,

(2d Cir. 2010); Aslam v. Mukasey,

(2d Cir. 2008) (per curiam).

Additionally, we review the agencyʹs factual findings, including adverse credibility

findings, under the substantial evidence standard of

(b)(4)(B). See Mei

Chai Ye v. United States Depʹt of Justice,

, 523‐24 (2d Cir. 2007). This Court

defers ʺto an IJʹs credibility determination unless, from the totality of the circumstances,

it is plain that no reasonable fact‐finder could make such an adverse credibility ruling.ʺ

Xiu Xia Lin v. Mukasey,

(2d Cir. 2008) (per curiam).

To qualify for adjustment of status, an alien must demonstrate ʺclearly

and beyond doubt,ʺ Ibragimov v. Gonzales,

(2d Cir. 2007), that he is

ʺadmissible to the United States for permanent residence,ʺ

(a)(2). ʺAny

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 the Act] . . . is inadmissible.ʺ

(a)(6)(C)(ii)(I). ʺ[F]iling an I‐9 employment eligibility form . . . count[s] as

a ʹpurpose or benefitʹ triggering inadmissibility.ʺ Richmond v. Holder,

, 729

n.4 (2d Cir. 2013). Hence, to qualify for adjustment of status, Ronga had to demonstrate

clearly and beyond doubt that he did not falsely represent himself to be a United States

citizen when he filled out the I‐9. See Crocock v. Holder,

(2d Cir. 2012)

(per curiam).

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We conclude that the IJʹs adverse credibility finding against Ronga was

supported by substantial evidence, and that Ronga did not demonstrate clearly and

beyond doubt that he did not falsely represent himself to be a United States citizen.

Ronga testified that when he completed the Form I‐9, he intended to

represent only that he was a United States national and not that he was a United States

citizen. The IJ found that Rongaʹs explanation was not credible because he testified

inconsistently as to his understanding of the meaning of ʺnational.ʺ The IJ also noted

that the Form I‐9 provided other options, including ʺaliens.ʺ Ronga testified initially in

2008 that he did not at that time know what ʺnationalʺ meant and that he had chosen

the box on his Form I‐9 through a ʺprocess of eliminationʺ because the ʺother two

options required some form of proof which [he] did not have.ʺ (ROA 240). He testified

in 2010 that he had chosen that box on his Form I‐9 because he thought that ʺnational,ʺ

which he understood at that time to mean ʺlegally admitted to the United States,ʺ was

the ʺbest fitʺ for his situation. (ROA 331‐32). And on remand in 2011, Ronga stated that

his understanding of the term ʺnationalʺ varied over time. Although we are not

convinced that Rongaʹs testimony about his understanding of the meaning of the word

ʺnationalʺ at different points in time was inconsistent, Rongaʹs inconsistent testimony

about his reason for checking the ʺU.S. Citizen or nationalʺ box provided a substantial

basis for the IJ to conclude that Rongaʹs testimony ʺsimply d[id] not add up,ʺ (ROA 51),

and we therefore defer to the IJʹs adverse credibility determination.

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Finally, although Ronga offers a plausible explanation for his inconsistent

testimony, he fails to demonstrate that the evidence compels a conclusion contrary to

the one drawn by the IJ. See Majidi v. Gonzales,

(2d Cir. 2005) (ʺA

petitioner must do more than offer a plausible explanation for his inconsistent

statements to secure relief; he must demonstrate that a reasonable fact‐finder would be

compelled to credit his testimony.ʺ) (emphasis in original) (internal quotation marks

omitted). The IJʹs conclusion that Ronga intended to represent himself as a United

States citizen was not unreasonable.

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We have considered Rongaʹs remaining arguments and conclude they are

without merit. Accordingly, we DENY Rongaʹs petition for review.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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