Metropolitan News-Enterprise


Tuesday, August 22, 2017


Page 1


Ninth Circuit Declares:

Alien’s Use of False Identity, Birth Certificate, Might Be Forgivable

Says U.S. High Court Decision Requiring Casual Nexus Between a False Statement and Gaining Citizenship, For Purposes of a Penal Statute, Might Authorize Permanent Residency Status Despite Immaterial Lies


By a MetNews Staff Writer


A citizen of Mexico who used the name and birth certificate of another in gaining permanent residency status here need not necessarily be deported based on his deception, the Ninth U.S. Circuit Court of Appeals has held, invoking a Supreme Court opinion handed down June 22.

The precedent cited in Friday’s Ninth Circuit memorandum opinion is Maslenjak v. United States. There, the high court held that a person cannot be convicted of knowingly making a false statement under oath in a naturalization proceeding unless there is a nexus between the false statement and the gaining of citizenship.

Two members of the Ninth Circuit panel—Judges Stephen Reinhardt and Kim Wardlaw—signed the majority opinion, and Judge Ferdinand Fernandez provided a brief opinion concurring in the result, only. All three jurists agreed that the Board of Immigration Appeals must reconsider the application of Mario Godoy Dorado—falsely using the name of Jose Roberto Sandoval—for cancellation of removal in light of Maslenjak.

The court chose to refer to him as “Sandoval.”

The board had dismissed an appeal of an immigration judge’s determination that Sandoval, because of his ploy, was not “lawfully admitted for permanent residence” and was therefore ineligible for a cancellation of the removal order.

Reasoning Is Applicable

Reinhardt and Wardlaw acknowledged that the Supreme Court, in Maslenjak, “interpreted a different statute than the one at issue”—there, dealing with a criminal offense in obtaining citizen through a falsehood. They said, however, that the holding in that case “nevertheless bears upon our analysis.”

In a rare appellate court pronouncement as to the credibility of a witness, the judges said that “Sandoval credibly testified that he used a false birth certificate as an identification document when he applied for lawful permanent resident…status in 1990 because he had difficulty obtaining his own birth certificate from Mexico.”

The immigration judge who initially heard the matter, they noted, found no evidence that Sandoval would not have failed to qualify using his true identity.

“We agree that under the available evidence, Sandoval was likely eligible to adjust status under his own name,” the judges said.

 They remanded the case to the board “to consider in the first instance whether, in light of Maslenjak, a noncitizen is ‘lawfully admitted for permanent residence’ if that person would have qualified for permanent residency status ‘regardless of any misrepresentations’ ” that were not disqualifying, in and of themselves, or would not “predictably” have led to facts compelling denial of that status.

The judges said that if the board found the “causual nexus” requirement of Maslenjak applicable, “then it should also decide whether Sandoval’s submission of someone else’s birth certificate rendered him substantively unqualified for admission” as a permanent resident.

“The panel will retain jurisdiction over this petition,” they provided.

Fernandez said he agrees that the board should reconsider the matter in light of Maslenjak, but declared:

“[O]n this case, I see no reason to say more than that. Moreover, I see no reason to retain jurisdiction over the case.”

Oral Argument

At oral argument on July 12,  Sandoval’s lawyer, Christian De Olivas, told the panel:

“What I would like this court to consider is the request that the government prove a little something extra, beyond the fraud.”

He said:

“I think the government wants to say, ‘You know what? There is fraud in this case, the birth certificate. That should be enough.”

Wardlaw questioned whether the fraud has “to be material,” and De Olivas said he was coming to that. The judge declared:

“Oh, good. Get to that.”

She and Reinhardt, in their questioning, signaled an intent to reverse, while Fernandez said nothing.

Deputy U.S. Attorney David Kim underwent rapid-fire questioning by Reinhardt, being allowed to respond only in partial sentences before a being interrupted with another query.

“Are you sure you don’t want to go to mediation and use some common sense in this case?” Reinhardt asked.

He questioned whether the issues in the case do not go “beyond legalities,” asked whether it is not so that if Sandoval “had produced the right certificate, he would be OK,” and inquired:

“You still insist on deporting him?”

Kim declared:

“I think it’s critical that he did use a false certificate.”

The case is Sandoval v Sessions, No. 13-73009.


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