     Case: 09-60536     Document: 00511221852          Page: 1    Date Filed: 09/01/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                         September 1, 2010

                                       No. 09-60536                         Lyle W. Cayce
                                                                                 Clerk

OLGA BARCENAS-BARRERA,

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                              Agency No. A093 086 418


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Olga Barcenas-Barrera, a native and citizen of Mexico, seeks review of a
BIA decision reversing the IJ and ordering her removal. In 2006, Barcenas-
Barrera pleaded guilty to making a false statement on an application for a
United States passport, in violation of 18 U.S.C. § 1542. DHS charged her with
several grounds of removability based on the passport application. The IJ
sustained one ground, but granted a waiver of inadmissibility based on
Barcenas-Barrera’s credible testimony and a finding that she was deserving of

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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the court’s discretion.     On review, the BIA sustained a second ground of
removability, to which waiver does not apply, and ordered her removed to
Mexico. Ms. Barcenas-Barrera petitioned for review. We hold the BIA’s decision
that Barcenas-Barrera was removable under 8 U.S.C. §1227(a)(1)(A) was not an
abuse of discretion. Accordingly, we DENY Barcenas-Barrera’s petition for
review of the BIA’s judgment and order of removal.
                          FACTS AND PROCEEDINGS
      Ms. Barcenas-Barrera is a native and citizen of Mexico. She entered the
United States in 1986. In 1988, she married Pedro Barrera, who became a
naturalized United States citizen in 2000. Based on this marriage, Barcenas-
Barrera adjusted her status to that of lawful permanent resident (“LPR”) in
September 2004. Before she adjusted her status, Barcenas-Barrera obtained a
work permit under a then-existing amnesty program. The work permit expired
and she purchased a fake social security card and birth certificate showing her
birthplace as in Texas from a co-worker.1 When her employer refused to accept
those documents, the co-worker then advised Barcenas-Barrera to fill out a
United States passport application using the fake documents. Because she is
illiterate in both English and Spanish, Barcenas-Barrera had a neighbor
complete the form using the information from the fake social security card and
birth certificate. Barcenas-Barrera signed the application and submitted it at a
United States Post Office. She maintains that she did not understand what she
was signing, believed it was a type of work authorization, and did not think that
she was claiming to be a United States citizen.           The Department of State
discovered that both the social security number (“SSN”) and birth certificate



      1
        There were legal means for her to continue to work, but Barcenas-Barrera submits
that she was unaware of them.

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were false and was investigating when the Department of Homeland Security
(“DHS”) adjusted Barcenas-Barrera’s status to LPR.
       In March 2006, Barcenas-Barrera pleaded guilty to making a false
statement on an application for a United States passport in violation of 18
U.S.C. § 15422 and was sentenced to three years of probation. The claimed false
statement was her representation that she was born in Texas. The DHS then
instituted removal proceedings, charging her, in relevant part, with removability
under 8 U.S.C. § 1227(a)(1)(A), based on both 8 U.S.C. § 1182(a)(6)(C)(i) and (ii).
Subsection (i) provides that “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, . . . has sought to procure or has procured a
visa, other documentation, or admission into the United States or other benefit
provided under this chapter is inadmissible.” Subsection (ii) provides that “[a]ny
alien who . . . 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.”
       The immigration judge (“IJ”) hearing her case found Barcenas-Barrera
removable under subsection (i), but not subsection (ii). He then granted a waiver
of inadmissability pursuant to 8 U.S.C. § 1227(a)(1)(H).3                 Following DHS’s
appeal, the Board of Immigration Appeals (“BIA”), found Barcenas-Barrera also




       2
        “Whoever willfully and knowingly makes any false statement in an application for
passport with intent to induce or secure the issuance of a passport under the authority of the
United States, either for his own use or the use of another, contrary to the laws regulating the
issuance of passports or the rules prescribed pursuant to such laws.”
       3
          Removability under 8 U.S.C. § 1182(a)(6)(C)(i), “whether willful or innocent,
may . . . be waived for any alien . . . who (i)(I) is the spouse, parent, son, or daughter of a
citizen of the United States or of an alien [LPR]; and (II) was in possession of an immigrant
visa or equivalent document and was otherwise admissible to the United States at the time
of such admission . . . .” Removability under subsection (ii) cannot be waived.

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removable under subsection (ii) and ordered her removed to Mexico. Barcenas-
Barrera petitioned this court for review.
                           STANDARD OF REVIEW
      We review the BIA’s findings of fact for substantial evidence and its legal
determinations de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). We
do not review any part of the IJ’s decision that the BIA did not expressly adopt.
Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). The substantial evidence
standard requires us to determine, “not only that the evidence supports a
contrary conclusion, but also that the evidence compels it.” Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006) (quotation marks and citation omitted)
(emphasis in original). The petitioner bears the burden of showing that “the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion.” Id. In addition, although the BIA’s legal findings are reviewed de
novo, the court must accord Chevron deference to the agency’s interpretation of
ambiguous immigration statutes. Smalley v. Ashcroft, 354 F.3d 332, 335S36 (5th
Cir. 2003) (referring to Chevron USA, Inc. v. Natural Res. Defense Counsel, 467
U.S. 837, 844 (1984)). Chevron requires us to defer to an agency’s interpretation
if it is based on a permissible construction of the statute and if Congress has not
evidenced a clear and unambiguous intent concerning the question before the
court. White v. INS, 75 F.3d 213, 215 (5th Cir. 1996) (citing Chevron, 467 U.S.
at 842S43).
                                 DISCUSSION
      Barcenas-Barrera argues that the BIA erred by (1) conducting de novo
review of the IJ’s findings of fact and by engaging in its own fact finding, and (2)
concluding that Barcenas-Barrera made a false representation of United States
citizenship within the meaning of 8 U.S.C. § 1182(a)(6)(C)(ii). To evaluate these



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claims, we first analyze whether Barcenas-Barrera properly exhausted her two
claims. Then, because we conclude that she did not exhaust the first, but did
exhaust the second, we proceed to the merits of the second issue only.
I.      Administrative Exhaustion
        The Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”) affords this court jurisdiction over Barcenas-Barrera’s request for
review only if she has “exhausted all administrative remedies available to [her]
as of right” on these issues. 8 U.S.C. § 1252 (d)(1). “A remedy is available as of
right if (1) the petitioner could have argued the claim before the BIA, and (2) the
BIA has adequate mechanisms to address and remedy such a claim.” Omari v.
Holder, 562 F.3d 314, 318S19 (5th Cir. 2009). In this circuit, an alien meets the
exhaustion requirement only if she has “explicitly” raised the issue before the
BIA on direct appeal, a motion to reopen, or a motion for reconsideration. Id. at
320S21 (discussing a motion for reconsideration); see also Toledo-Hernandez v.
Mukasey, 521 F.3d 332, 334 (5th Cir. 2008) (addressing direct appeal or motion
to reopen); Heaven v. Gonzales, 473 F.3d 167, 177 (5th Cir. 2006) (same). That
“the BIA had sufficient notice of¯and opportunities to address¯the issues”
presented is not sufficient to give this court jurisdiction. Omari, 562 F.3d at 321.
This rule “provid[es] the BIA with adequate notice of those issues it should
address” and affords “the agency with the expertise in immigration matters[]
with the opportunity” to address all arguments, “including those of its own
alleged legal error.” Id.
        Accordingly, we are without jurisdiction to address whether the BIA erred
by conducting de novo review of the IJ’s findings of fact and by engaging its own
fact finding. See 8 U.S.C. § 1252(d)(1). Barcenas-Barrera argues that the BIA
made legal errors in its decision; these arguments could have been presented to



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the BIA on a motion to reopen or for reconsideration. See Omari, 562 F.3d at
319S21. The BIA has mechanisms adequate to address and remedy these types
of errors.   Id. (citing 8 C.F.R. § 10003.2).   Rather than giving the BIA an
opportunity to address these questions, however, Barcenas-Barrera resorted
directly to this court, depriving us of authority to consider them. See id. at
319S20 (finding no jurisdiction to review whether BIA erred “by making its own
factual findings instead of properly deferring to those of the IJ” because alien did
not first present question to BIA in motion to reopen or for reconsideration).
      We do, however, possess jurisdiction to review the BIA’s conclusion that
Barcenas-Barrera made a false representation of United States citizenship
under 8 U.S.C. § 1182(a)(6)(C)(ii). The DHS directly presented this question to
the BIA, which reversed the IJ’s conclusion that Barcenas-Barrera was not
removable under this section. In re Barcenas-Barrera, 25 I&N Dec. 40, 42 (BIA
2009) (finding that subsection (ii) “is broadly defined and encompasses the
respondent’s representation on her passport application that she was born in
Texas”). This is sufficient to satisfy § 1252(d)(1). Omari, 526 F.3d at 320. We
also have jurisdiction to consider Barcenas-Barrera’s more specific argument
that the BIA erred in concluding that she satisfied subsection (ii)’s intent
requirement. In her brief to the BIA, Barcenas-Barrera argued that subsection
(ii) contains an intent requirement. She thus met her obligation to “‘raise,’
‘present,’ or ‘mention’ [the] issue to the BIA to satisfy exhaustion,” Omari, 526
F.3d at 321 (collecting cases). Because this question was presented to the BIA
on direct appeal, she was not required to move for reconsideration or to reopen
in order to exhaust it. Omari, 526 F.3d at 320. We therefore proceed to the
merits of this issue.




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II.      False Representation of United States Citizenship Under 8 U.S.C.
         § 1182(a)(6)(C)(ii)
         Before we analyze this question, we first note the parties’ arguments
regarding the applicable standard of review. The DHS submits that Barcenas-
Barrera presents a question of law, while she alternately argues that it is a legal
question and a factual question. Her arguments that it is a question of fact are
incorrect.    They merely assume the answer to a legal question¯whether
subsection (ii) contains an implied intent requirement¯in her favor, and proceed
to argue that the facts do not show that she possessed the required intent. As
this court recently noted, “an IJ’s finding about what happened to [an] individual
constitutes a factual finding” but its finding “that those facts rise to the level
[necessary to meet the statutory requirements] constitutes a legal question.”
Ramirez v. Holder, No. 08-60350, 2010 WL 1287069, at *1 (5th Cir. April 5,
2010). Barcenas-Barrera alleges that the BIA erred in deciding that the facts of
her case satisfy subsection (ii): a legal question regarding the BIA’s
interpretation of a statute it is responsible for administering.4
         When we review the BIA’s construction of such statutes, we are obligated
to defer to its interpretations, unless Congress has shown an unambiguous
intent concerning the question or the agency’s interpretation is not based on a
permissible construction of the statute. White, 75 F.3d at 215 (citing Chevron,
467 U.S. at 842S43). We may reject an interpretation that is “arbitrary,
capricious, or manifestly contrary to the statute,” but may not substitute our




        4
        The IIRIRA provides that “[t]he Secretary of Homeland Security shall be charged with
the administration and enforcement” of the statute and that the “determination and ruling by
the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.
§ 1103(a)(1).

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judgment for that of the BIA. Chevron, 467 U.S. at 844. With this in mind, we
review the substance of the BIA’s decision on this issue.
       The BIA, presented with the question of whether Barcenas-Barrera was
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii) at the time she converted to LPR,
concluded that the “falsely represented, himself or herself to be a citizen of the
United States” language of subsection (ii) “is broadly defined and encompasses
the respondent’s representation on her [signed] passport application that she
was born in Texas.” In re Barcenas-Barrera, 25 I&N Dec. 40, 42 (BIA 2009). It
did not explicitly answer Barcenas-Barrera’s argument that subsection (ii) only
applies to those aliens who “willfully and knowingly” misrepresented themselves
as citizens.    Portions of its decision indicate that it may have interpreted
subsection (ii) not to require a willful and knowing false misrepresentation.5
Other portions, however, support a conclusion that the BIA interprets subsection
(ii) to require some evidence of the alien’s intent to misrepresent herself, but
that it found the evidence against Barcenas-Barrera was sufficient to satisfy the
intent requirement.6
       We have not previously addressed the presence of an intent requirement
in subsection (ii) or this section’s application to an alien who has made a
misrepresentation in a passport application. Four of our sister circuits, however,
have upheld BIA decisions finding inadmissible under subsection (ii) aliens who



       5
        It expressly distinguished this from criminal statutes containing an express intent
requirement, because conviction under those statutes requires the government to satisfy a
higher burden of proof.
       6
         It noted that, by pleading guilty to a § 1542 violation, Barcenas-Barrera had admitted
to willfully and knowingly providing false information regarding her birth place with the
intent to secure a passport contrary to law. In re Barcenas-Barrera, 25 I&N Dec. 40, 43 (BIA
2009). It also found that a passport would “have allowed the respondent to maintain
employment in this country, which is the reason she applied for it.” Id. at 44.

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falsely represented their circumstances of birth in passport applications in ways
that implied United States citizenship. See Vana v. Attorney General, 341 F.
App’x 836, 839 (3d Cir. 2009); Jackson-Omier v. Gonzales, 246 F. App’x 1, 1 (1st
Cir. 2007); Rodriguez v. Gonzales, 451 F.3d 60, 65 (2d Cir. 2006); Sowah v.
Gonzales, 196 F. App’x 576, 577 (9th Cir. 2006). Only one of these cases involved
an intent argument like Barcenas-Barrera’s. Vana, 341 F. App’x at 838. In the
other three, the aliens did not dispute that they had intended to misrepresent
themselves. In Vana, the Third Circuit rejected Vana’s argument “that ‘scienter’
is an implied requirement of a ‘false claim of United States citizenship.’” 341 F.
App’x at 838 (addressing alien’s assertion that he had not intended to represent
himself as a United States citizen, but merely “allowed someone to file a
passport application for him because he had been told [it] would give him the
right to work”).    The court in Vana did not conduct a full analysis of the
argument, relying instead on a Second Circuit decision that did not need to
explore the intent issue because the alien admitted intent. Id. (citing Rodriguez,
451 F.3d at 65 (relying on alien’s admission of falsely representing himself as a
citizen). There is no clear ruling by any of the circuits addressing whether
subsection (ii), when applied to an alien who falsely represented his or her
circumstances of birth in a passport application in a manner that implied United
States citizenship, requires evidence of an alien’s intent to misrepresent himself
as a United States citizen.
      This court, however, need not decide this issue. The BIA has not provided
clear guidance regarding its intended interpretation of this statute, which it is
responsible   for   administering,   and       about   which    it¯rather   than   this
court¯possesses expertise. It is also apparent from the BIA’s decision that the




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agency had before it more than sufficient evidence from which to determine that
Barcenas-Barrera possessed any intent that subsection (ii) may require.
        The BIA did not err in concluding that Barcenas-Barrera made a false
representation of United States citizenship within the meaning of subsection (ii).
The BIA concluded that subsection (ii) had a “broad” application and that
Barcenas-Barrera’s conduct amounted to a false representation of citizenship
under that statute. The BIA did not err if it found it necessary to conclude that
Barcenas-Barrera willfully and knowingly made a false representation of United
States citizenship.
        This court owes Chevron deference to the BIA’s interpretation of the
statute. Because Congress has not evidenced an unambiguous intent on the
issue of whether subsection (ii) requires a willful and knowing misrepresentation
of citizenship, we owe Chevron deference to the agency’s interpretation and may
only reject it if we determine that it is “arbitrary, capricious, or manifestly
contrary to the statute.” White, 75 F.3d at 215 (quoting Chevron, 467 U.S. at
844).       The BIA noted that, by pleading guilty to a § 1542 violation,
Barcenas-Barrera had admitted that she (1) willfully (2) made a false statement
on a United States passport application, (3) with the intent to induce or secure
the issuance of a passport, contrary to law. See 18 U.S.C. § 1542. It also
recognized that she made assertions on a passport application that, if true,
would have entitled her to United States citizenship, barring unusual exceptions
that she never argued apply.              She then signed a certification 7 that, by
implication, affirmed that she was a citizen or national of the United States.



        7
         “I have not, since acquiring United States citizenship, performed any of the acts listed
under “Acts or Conditions” on the reverse of this application (unless explanatory statement
is attached). I solemnly swear (or affirm) that the statements made on this application are
true and the photograph attached is a true likeness of me.”

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The record clearly shows more evidence of Barcenas-Barrera’s intent than the
mere “checking of a box.” See United States v. Mulumba, 162 F. App’x 274, 275
(5th Cir. 2005) (holding alien’s checking of a box certifying that he was “[a]
citizen or national of the United States” on an I-9 Employment Eligibility
Verification Form insufficient evidence of intent to misrepresent himself as a
citizen to satisfy a “beyond a reasonable doubt” standard).
      In the absence of more specific guidance from the BIA, we do not decide
specifically whether § 1182(a)(6)(C)(ii) requires evidence of the alien’s intent to
falsely claim United States citizenship and, if so, how much evidence it requires.
While we have recognized that remand to the BIA for clarification of its decisions
is possible and proper, see Ismail v. Gonzales, 245 F. App’x 366, 369 (5th Cir.
2007) (citing INS v. Ventura, 537 U.S. 12, 16 (2002)), we need not pursue that
course here because of the volume of evidence specifically noted in the BIA’s
decision. Barcenas-Barrera’s conduct is more than sufficient to establish that,
if evidence of an alien’s intent is required to make her inadmissible under
subsection (ii), the BIA’s determination that she possessed that intent was
reasonable.
                                    CONCLUSION
      For the reasons set forth above, we DENY Barcenas-Barrera’s petition for
review of the BIA’s judgment and order of removal.




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