On October 30, 2014 the BIA (Board of Immigration Appeals) issued a decision determining that a Form I-9 is admissible as evidence in immigration court proceedings to support charges of removability against a noncitizen and to determine his or her eligibility for relief of removal.  In Matter of Kibichii BETT, (26 I&N Dec. 437 (BIA 2014)), the BIA determined that the I-9 form was admissible in removal proceedings, upholding the Department of Homeland Security’s (DHS’) prior decision that the respondent was not eligible to adjust his status because he was inadmissible as an alien who falsely represented himself be a United States citizen.  This case establishes that misrepresentations on a Form I-9 used to gain employment can later prevent a noncitizen from gaining permanent residency.

Form I-9 requires employers to verify that every new employee hired after November 6, 1986 provide valid documentation to verify identity and work authorization in the U.S. in order to initiate employment.  Form I-9 asks the employee attest to their status and certifies that the information included is true, if the employee enters false data, that individual could be subject to removal proceedings and debarment from the U.S. for up to ten years. 

The respondent in the Matter of BETT failed to show that Form I-9 is not admissible as evidence in removal proceedings.  The evidence in this case consisted of I-9 forms, which were completed and submitted by the respondent to two separate employers several weeks apart, both containing similar handwriting and signatures and both bearing a checkmark by the box indicating that the applicant is a US Citizen.  Although the respondent acknowledged that he applied for a job at each company and that it looked like his signature appeared on both forms, he claimed that he could not recall checking the box on the forms signifying that he was a United States citizen. The Immigration Judge found that the direct and circumstantial evidence of record established that the respondent did, in fact, fill out the forms and that he selectively withheld this information at the hearing. The BIA determined that, in reaching his conclusion, the Immigration Judge properly considered the totality of the circumstances and relied on direct and circumstantial evidence, including the two I-9 forms with the respondent’s signature, the respondent’s equivocal testimony, and his demeanor. You can read the decision here. 

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.