U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, S11ile 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - ELP

11541 Montana Ave , Suite 0
El Paso, TX 79936

Name: MELENDEZ-MANRIQUEZ, RODO..

A 089-599-983

Date of this notice: 11/25/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DorutL c

l1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016)

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Bustamante, Rebeca, Esquire

Law Office of Felipe DJ Millan PC - Texas
1147 Montana Avenue
El Paso, TX 79902

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A089 599 983 - El Paso, TX

Date:

NOV 2 5 2016

In re: RODOLFO MELENDEZ MANRIQUEZ

APPEAL
ON BEHALF OF RESPONDENT: Rebeca Bustamante, Esquire 1
ON BEHALF OF DHS:

Meggan G. Johnson
Assistant Chief Counsel

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)

APPLICATION: Adjustment of status

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
April 17, 2013, decision pretermitting his application for adjustment of status sought pursuant to
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i), based on an approved
Petition for Alien Relative (Form 1-130) filed on his behalf by his lawful permanent resident
wife. His appeal will be sustained, and the record will be remanded to the Immigration Judge for
further proceedings consistent with this opinion.2

We acknowledge that the request for an extension of the briefing schedule and the
respondent's appellate brief were filed by Felipe D.J. Millan, Esquire, the attorney who
represented the respondent before the Immigration Court. However, only Ms. Bustamante,
Esquire, has filed a Notice of Entry of Appearance as Attorney or Representative Before the
Board (Form EOIR-27) with this appeal. Therefore, Ms. Bustamante will be regarded as the
attorney of record. In addition, we note that both Mr. Milan and Ms. Bustamante have listed the
same business address on their correspondence with the Board, and therefore, only one copy of
this decjsion will be served on Ms. Bustamante.
2

We note that the Immigration Judge granted the respondent post-conclusion voluntary
departure pursuant to section 240B(b) of the Act, 8 U.S.C. 1229c(b), and the respondent
provided proof of his payment of the voluntary departure bond on appeal. However, in light of
our disposition of this matter, we decline to reinstate the grant of voluntary departure at this
juncture.
Cite as: Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016)

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IN REMOVAL PROCEEDINGS

.J

A089 599 983

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.1(d)(3)(ii).

Based on the foregoing, the Immigration Judge concluded that the respondent made a false
claim to United States citizenship for a "purpose or benefit under this Act ...or any other Federal
or State law" thus rendering him inadmissible under section 212(a)(6)(C)(ii)(I) of the Act,
8 U.S.C. 1182(a)(6)(C)(ii)(I) (I.J. at 7-8). Therefore, the Immigration Judge found the
respondent statutorily ineligible to adjust his status under section 245(i) of the Act (I.J. at 7-8).
On appeal, the respondent maintains that his false claim at the OMV was not made for a
"purpose or a benefit" under New Mexico law (Respondent's Brief at 4, 8). In so doing, he
maintains that the false claim was not relevant to his eligibility for a driver's license in the State
of New Mexico when he completed the application (Respondent's Brief at 8-11). In support of
his position, he relies on the version of New Mexico Statute section 66-5-9(B) in effect from
June 17, 2011, through May 17, 2016, which provides that an applicant for a driver's license
must provide a "social security number or individual tax identification number" on his
application (Respondent's Brief at 10-11).3
3

The New Mexico statute was amended in 2003, after the respondent made his false claim, to
include language allowing an applicant to use an individual taxpayer identification number in
lieu of a social security number. See, e.g., New Mexico Statute 66-5-9(B) (1999) (explaining
that an applicant must furnish a social security number when applying for a driver's license);
compare New Mexico Statute 66-5-9(8) (2003) (adding an option to provide a taxpayer
identification number in lieu of a social security number). However, a review of the New
Mexico statutes related to the issuance of driver's licenses does not reveal that, in 2001 or at any
time thereafter, until the current version of New Mexico Statute 66-5-9(B) was enacted on
May 18, 2016, the State required proof of lawful immigration status to issue a license. See, e.g.,
New Mexico Statute 66-5-9(B) (2003) (effective until May 17, 2016, and listing classes of
persons then ineligible for driver's licenses in New Mexico); New Mexico Statute 66-5-9(B)
(2001) (listing the classes of persons ineligible to receive a driver's license in 2001); New
Mexico Statute 66-5-5 (2011, 2007, 2006) (none of which list lawful immigration status as a
(continued ...)
2
Cite as: Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016)

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The facts in this case are not in dispute. The respondent was arrested once, in 2001, while he
was at the New Mexico Department of Motor Vehicles (OMV) (1.J. at 3; Tr. at 30). He
acknowledges that he went to the OMV with his neighbor, a United States citizen, and used the
neighbor's birth certificate and social security number to apply for a driver's license as a United
States citizen (I.J. at 3; Tr. at 30-32). The respondent further acknowledges that, in 2000, he
obtained a driver's license in his own name using a utility bill, his immigration documents, and
documents from the Mexican Consulate (I.J. at 3-4; Tr. at 32-34, 43-46). However, he said that
he wished to obtain a driver's license in 2001 as a citizen because he believed such a license
could be used to travel through various immigration checkpoints within the State of New Mexico
(I.J. at 7-8; Tr. at 32-36, 51-52, 55-56). The respondent's arrest did not result in a conviction
(1.J. at 3; Tr. at 35; Respondent's June 7, 2012, Documentary Submission at Tab G).

A089 599 983

Here, although the respondent generally maintains on appeal that he did not seek a purpose or
benefit under the Act or any Federal or State law, he conceded before the Immigration Judge that
he made the false claim at the DMV with the subjective intent to obtain a license that he believed
would look facially different than a license issued to a non-citizen (Respondent's Brief at 8-12;
I.J. at 3, 7-8; Tr. at 32-36, 51-52, 55-56). Specifically, he believed that by using his neighbor's
citizenship credentials he would receive a driver's license that would purport that he was a
United States citizen, allowing him to travel through immigration checkpoints within the United
States (l.J. at 3, 7-8; Tr. at 32-36, 51-52, 55-56). Accordingly, for purposes of this appeal, we
will assume that the record contains evidence that the respondent made a false claim on his
driver's license application with the subjective intent to achieve a purpose or benefit under New
Mexico law.
Notwithstanding the foregoing, the respondent's claim does not render him inadmissible
pursuant to section 212(a)(6)(C)(Il)(i) of the Act, when applying our holding in
Matter ofRichmond, supra. Specifically, the Immigration Judge found as a matter of fact that,
although the respondent made a false claim with the subjective intent to obtain the benefit of a
driver's license documenting United States citizenship, the claim did not actually affect or matter
to the purpose or benefit sought (I.J. at 3, 5 7-8; Tr. at 32-36, 51-52, 55-56). See id at 786-87;
see also Hassan v. Holder, 604 F.3d 915, 928-29 (6th Cir. 2010) (finding that a false claim on a
Small Business Administration (SBA) loan application did not render an alien inadmissible, and
noting that citizenship is not a prerequisite for receiving funding). In this regard, the
Immigration Judge noted that the respondent did not need to demonstrate any lawful status in the
United States to obtain a driver's license from the New Mexico DMV at the time he filed his
driver's license application (I.J. at 5, 7). Moreover, the Immigration Judge found that the record
did not contain any persuasive evidence to establish that the driving credential issued to a citizen

( ... continued)
as a prerequisite to qualifying for a driver's license in the State of New Mexico); see also List of
Acceptable Documents for Obtaining a Non-Commercial Driver's License (Department of
Homelan<l' Security March 28, 2013, Notice to the Court at Tab B); but see New Mexico Statute
66-5-9(B) (effective May 18, 2016) (explaining that, currently, in New Mexico a person
"applying for or renewing a driver's license shall provide documentation required by the federal
government of the applicant's identity, date of birth, social security number, if applicable,
address of current residence and lawful status").

3
Cite as: Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016)

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During the pendency of this appeal, we issued Matter of Richmond, 26 I&N Dec. 779
(BIA 2016), a precedent addressing the framework for evaluating when an individual triggers
inadmissibility under section 212(a)(6)(C)(ii)(l) of the Act for having made a false claim to
United States citizenship. Therein, we explained that a disqualifying false claim to United States
citizenship occurs (1) when there is direct or circumstantial evidence that a claim was made with
subjective intent to obtain a purpose or benefit under the Act or under Federal or State law and
(2) the claim actually affects or matters to the purpose or benefit sought. See id. at 786-87.

. , '

A089 599 983

in New Mexico in 2001 was any different than any driving credential issued to a non-citizen,
including any individual without lawful status in this country (I.J. at 5, 7).

Accordingly, the following orders will be entered.

ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded for the Immigration Judge to conduct further
proceedings consistent with this opinion and to issue a new decision.

FOR THE BOARD

4
Cite as: Rodolfo Melendez Manriquez, A089 599 983 (BIA Nov. 25, 2016)

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Therefore, because the respondent's false claim to United States citizenship on his New
Mexico driver's license application does not trigger the ground of inadmissibility at
section.212(a)(6)(C)(Il)(i) of the Act, we conclude that, barring any other grounds of
inadmissibility that may arise in this case, the respondent remains statutorily eligible to pursue
adjustment of status under section 245(i) of the Act. Thus, we will remand the record to the
Immigration Judge in allowing the respondent to pursue this application for relief.

April 17, 2013

File: A089-599-983
In the Matter of
)
)
)
)

RODOLFO MELENDEZ-MANRIQUEZ
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6) (A)(i) of the Immigration and Nationality Act.

APPLICATIONS:

Adjustment of status pursuant to Section 245 of the Act; in the

alternative, voluntary departure pursuant to Section 240B(b) of the
Act.

ON BEHALF OF RESPONDENT: REBECCA BUSTAMANTE, Attorney

El Paso, Texas
ON BEHALF OF OHS: MEGAN JOHNSON, Assistant Chief Counsel
Department of Homeland Security
El Paso, Texas
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 38-year-old married male, native and citizen of Mexico. He
was served with a Notice to Appear on April 18, 2008, Exhibit 1, and a lodged charge
dated August 8, 2008, Exhibit 1A. The respondent, through counsel, admitted the
factual allegations in the Notices to Appear and conceded that he is removable.
Accordingly, I find that there is clear and convincing evidence to establish he is
removable as charged.
1

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS

Mexico is designated as the country of removal.

The respondent has applied for adjustment of status pursuant to Section 245 of

240B(b) of the Act. The issue before the Court today is his eligibility for these forms of
relief.
Statement of Facts
The Notice to Appear and lodged charge has been marked and admitted as
Exhibit 1 and 1A. In addition, the following documents have been marked and received
into evidence. Exhibit 2 was the original hearing notice for a Court proceeding; Exhibit 3
was a Form 1-213 related to the respondent dated April 18, 2008. It is noted that initially
there was an in absentia hearing. Subsequent to that hearing, there was a motion to
reopen wherein this case was reopened. That motion to reopen is Exhibit 4. As noted,
the respondent's primary form of relief being sought was adjustment of status pursuant
to Section 245 of the Act. DHS had concerns as to eligibility for adjustment of status
since it appears that the respondent may have made a false claim to United States
citizenship for the purpose of obtaining a New Mexico driver's license. That apparently
was the reason that the Government had denied respondent's application for
adjustment of status as noted in Exhibit 4, Tab E. Exhibit 5 is a copy of the
respondent's current New Mexico driver's license.
To further his request for adjustment of status before this Court, the respondent
did testify. His testimony is summarized as follows as it relates to eligibility for
adjustment of status since arguments had been made that respondent would be
inadmissible pursuant to Section 212(a)(6)(C)(ii) of the Act which would preclude further
consideration for adjustment of status. Respondent testified that he is age 38, married,
and has lived in Chamberino, New Mexico for approximately 19 years. He lives here
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the Act. In the alternative, he has applied for voluntary departure pursuant to Section

with his wife and two United States citizen children, wife lawful permanent resident.
Respondent described how he was arrested in 2001 in the Las Cruces, New Mexico

license. He went to the office with his neighbor. Respondent's neighbor provided the
respondent the neighbors' identity documents in order to obtain this driver's license.
Specifically, respondent was loaned and attempted to use a United States citizen birth
certificate and social security number both related to respondent's neighbor. Apparently
at the motor vehicle office the personnel did not believe the documents related to the
respondent and both the respondent and neighbor were arrested. The respondent
states he did, in fact, seek to obtain that New Mexico driver's license by use of these
documents from a United States citizen even though one is not required to be a U.S.
citizen to obtain a New Mexico driver's license.
The respondent further stated that he believed that a New Mexico driver's license
issued to a United States citizen was in fact different from a normal driver's license;
further, that respondent believed that you could not use a normal driver's license from
New Mexico in order to pass through border patrol checkpoints.
According to the respondent, the charges against him because of this incident
were dropped.
On cross-examination, the respondent again testified that he believed a New
Mexico driver's license issued to a United States citizen would, in fact, permit him to
cross successfully through a border patrol checkpoint. Further, respondent
acknowledged that he already had a regular New Mexico driver's license when he
11

sought to obtain a United States citizen type New Mexico driver's license.

When questioned by the Court the respondent states that he did obtain his initial
New Mexico driver's license back in 2000 in New Mexico. He states he was able to
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motor vehicle office. At that time, respondent tried to obtain a New Mexico driver's

obtain a New Mexico driver's license then by showing documents to include a utility bill,
apparently documents from the Mexican Consulate and Immigration documents.

driver's license, one he thought would be for U.S. citizens and signed that application
indicating he was in fact a U.S. citizen. Further, respondent states that if he was
successful in obtaining this new driver's license that he believes would indicate he was
a U.S. citizen he would have used it to go through a border patrol checkpoint.
At a subsequent hearing, respondent's question as to his alternative relief sought
of voluntary departure, to that end respondent states that he has been in the United
States since 1991, that he has worked in the United States with no lawful documents
but never used false documents. Further, respondent states from 2009 to the present
time he has worked in the U.S. with work authorization. In addition, respondent states
he has never been criminally convicted and has never been granted voluntary departure
before by the Government.
Statement of Law
Adjustment of Status
In order to be granted adjustment of status, an alien must be admissible to the
United States for permanent residency. Section 245(a)(2) of the Immigration and
Nationality Act. The alien bears the burden to prove that he is admissible.
Pursuant to Section 212(a)(6)(C)(ii) of the Act, an 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 or any other federal or state law is inadmissible.
There appears to be no waiver for this ground of inadmissibility pursuant to
Section 212(a)(6)(C)(ii) of the Act.

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Respondent does acknowledge that he did sign the most recent request for a

Voluntary Departure
In order to be eligible for voluntary departure at the conclusion of the hearing

present in the U.S. for at least one year prior to the service of the Notice to Appear, had
been a person of good moral character for five years preceding the application for
voluntary departure, is not removable under Section 237(a)(2)(A)(iii) or Section
237(a)(4) of the Act. A person must also establish by clear and convincing evidence
that he has the means to depart the United States and intends to do so following when
voluntary departure is granted at the conclusion of the hearing on the merits. The
statute limits a period of voluntary departure for 60 days and requires the posting of a
bond of not less than $500.
Findings of the Court
Adjustment of Status
The Court will first consider whether or not the respondent is eligible to proceed
with an adjustment of status before this Court. The Court makes the following
determinations and findings.
The Court will find that the respondent was fully aware of how to obtain New
Mexico driver's licenses since he had obtained one previously. While it appears that,
and there is no evidence to the contrary, that there is no distinction given by the state of
New Mexico for driver's licenses for individuals that have no status, lawful permanent
resident status or United States citizen status in the United States, the respondent
himself fully believed there was a distinction to be had. For that reason, the respondent
knowingly, willingly requested of his neighbor, a United States citizen apparently, for his
documents to attempt to obtain a New Mexico driver's license that somehow the
respondent believes would have documented that he was a United States citizen which
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under Section 240B(b) of the Act, the alien must establish that he has been physically

would then according to the respondent enable him to pass successfully through a
federal Border Patrol checkpoint. Apparently, the respondent has had experience and/

checkpoints do ask questions in regards to individuals' Immigration status and

citizenship. Therefore, the Court does believe respondent when he believes that if he
obtained a New Mexico driver's license that would identify him as a United States
citizen that that document could very well have been shown to Immigration officers with
a result of making a false claim to citizenship with the result of being permitted to pass
through a checkpoint.
The Court is not aware of any specific Board or Circuit decisions specifically on
point. However, the Court has considered the following case law in making its
determination. It was found in Matter of Barcenas-Barrera, 25 l&N Dec. 40 (BIA 2009),
that false claims to U.S. citizenship, an application for a U.S. passport would render an
alien inadmissible as making a false claim to U.S. citizenship. Further, the Fifth Circuit
Court has held that private employment was a benefit under federal law since only
individuals with U.S. citizenship, lawful permanent residency or a work visa are
permitted to work in the United States and that an alien making false claim to be a
United States citizen in order to obtain private sector employment would be inadmissible
therefore not eligible for adjustment of status. See Theodros v. Gonzales, 490 F.3d 396
(5th Cir. 2007).
The Court is aware of other Circuit Courts that have not always found
respondents' inadmissible based on a false claim to U.S. citizenship. These include
Castro v. Attorney General, 671 F.3d 356 (3d Cir. 2012), where the Third Circuit found
that the fact that an alien made a false claim of U.S. citizenship to a police officer did not
render the alien inadmissible pursuant to Section 212(a)(6)(C)(ii). Further, in Hassan v.
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or knowledge of Border Patrol checkpoints and understands that officers manning those

Holder, 604 F.3d 915 (2010), the Sixth Circuit found that an alien's false claim of U.S.
citizenship in a Small Business Administration loan application also did not render that

Immigration status was irrelevant to the loan application.

In reviewing the case law, the Court believes that these Courts when determining
whether an alien was inadmissible that the false citizenship claim was made for purpose
or benefit both to see whether the U.S. citizenship was a prerequisite to obtain the
benefit and the alien's intent in making the claim. The Court will acknowledge that one
does not have to be a U.S. citizen to obtain a New Mexico driver's license as previously
noted. In fact it appears that New Mexico permits almost anyone to obtain a driver's
license as long as some documents are shown on behalf of the applicant. However, the
Court believes that the respondent's intent in his request for a driver's license with a
United States citizenship annotation is critical. Once again, respondent already had a
New Mexico driver's license. The sole purpose of this driver's license was if obtained to
permit the respondent to present to Immigration officers at checkpoints in order to be
permitted to pass through those checkpoints.
Respondent fully, in this Court's opinion, intended to fraudulently obtain a benefit
by the attempted purpose of obtaining such driver's license again to present at a
checkpoint. Therefore, the Court finds that the facts before it are more analogous to
Matter or Barcenas and the Fifth Circuit case of Theodros. Therefore, since the Court
has determined that the respondent did falsely represent himself to be a United States
citizen by trying to obtain a second New Mexico driver's license as a United States
citizen by false representations is in fact inadmissible pursuant to Section
212(a)(6)(C)(ii) of the Act. Since the respondent has been found inadmissible pursuant
to that section and since respondent has the burden to establish he is admissible to
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alien inadmissible under Section 21 2(a)(6)(C)(ii) of the Act since the applicant's

proceed with adjustment of status, the Court finds that the respondent has not met his
burden that he is in fact admissible. Therefore, the Court will find the respondent

form of relief.
Voluntary Departure
Turning to respondent's request for voluntary departure, the Court notes that
while the respondent may have been arrested for this incident he was not convicted.
Further, respondent has been in the United States for a number of years and does have
family lawfully in the United States. Further, respondent has never been granted
voluntary departure before. Therefore, the Court finds the respondent is eligible and in
this Court's discretion will grant voluntary departure in the alternative.
ORDERS OF THE COURT
Accordingly, the following orders are hereby entered.
ORDER: The respondent's application for adjustment of status under Section
245 of the Act is denied.
IT IS FURTHER ORDERED that respondent's application for voluntary
departure under Section 240B(b) of the Act is granted. The respondent must depart the
United States on or before June 14, 2013. The respondent must post a bond of $500
within five days. If the respondent fails to post the required bond or fails to depart by
that date or by any extension granted by the Department of Homeland Security or
appellate body, the privilege of voluntary departure shall be withdrawn immediately
without further notice or proceeding and the respondent shall be removed to Mexico.

signature

A089-599-983

Please see the next page for electronic

ROBERT S. HOUGH
8

April 17, 2013

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ineligible for adjustment of status pursuant to Section 245 of the Act and will deny that

Immigration Judge

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April 17, 201 3

A089-599-983

/Isl/
Immigration Judge ROBERT S . HOUGH

A089-599-983

10

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