Elija Kebaso Ateka v. John Ashcroft, 384 F.3d 954 (8th Cir. 2004). · Go Syfert
Elija Kebaso Ateka v. John Ashcroft, 384 F.3d 954 (8th Cir. 2004). Cases Citing This Book View Copy Cite
“if a petitioner fails to raise a particular issue when he appeals to the board and has not presented the board with the need or opportunity to address that issue, the petitioner has not exhausted administrative remedies with respect to it.”
70 citation events (70 in the last 25 years) across 8 distinct courts.
Strongest positive: Jose Luis Mendez-Gomez v. William P. Barr (ca8, 2019-06-27)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
examined Cited as authority (quoted) Jose Luis Mendez-Gomez v. William P. Barr (2×) also: Cited "see"
8th Cir. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
if a petitioner fails to raise a particular issue when he appeals to the board and has not presented the board with the need or opportunity to address that issue, the petitioner has not exhausted administrative remedies with respect to it.
discussed Cited as authority (rule) Israel Ortiz-Matias v. Merrick B. Garland
8th Cir. · 2021 · confidence medium
Upon careful consideration, we conclude that Ortiz-Matias’s challenge to the agency’s jurisdiction over his removal proceedings is not properly before this court, see Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise particular issue when he appeals to BIA, he has not exhausted administrative remedies); and in any event, it is without merit, Ali v. Barr, 924 F.3d 985 -86 (8th Cir. 2019) (jurisdiction over removal proceedings vests when Notice to Appear (NTA) is filed with immigration court; under 8 C.F.R. § 1003.18 (b), NTA must contain time, place, and da…
cited Cited as authority (rule) Abdifatah Omar v. William P. Barr
8th Cir. · 2020 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. -3- 2004).
discussed Cited as authority (rule) United States v. Rakesh Hirani
8th Cir. · 2016 · confidence medium
“A ‘petitioner has not exhausted administrative remedies -with respect to’ a particular issue if he ‘fails to raise [it] when he appeals to the Board.’ ” Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir. 2013) (alteration in original) (quoting Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. *753 2004)).
discussed Cited as authority (rule) Luis Antonio Garcia-Gonzalez v. Eric H. Holder, Jr.
8th Cir. · 2013 · confidence medium
An alien “ 'has not exhausted administrative remedies with respect to' a particular issue if he 'fails to raise [it] when he appeals to the Board.’ " Id. (quoting Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004)).
discussed Cited as authority (rule) Primitivo Alavez-Hernandez v. Eric H. Holder, Jr.
8th Cir. · 2013 · confidence medium
Under the substantial evidence standard, “[t]he Board’s findings of fact will be disturbed only if unsupported by substantial evidence.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (citing Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir.2004)).
cited Cited as authority (rule) Rajesh Yemula v. Eric Holder, Jr.
6th Cir. · 2013 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
discussed Cited as authority (rule) Juan Martinez Carcamo v. Eric H. Holder, Jr.
8th Cir. · 2013 · confidence medium
Section 1252(d)(1) precludes us from considering an issue unless the petitioner “has exhausted all administrative remedies available ... as of right.” A “petitioner has not exhausted administrative remedies with respect to” a particular issue if he “fails to raise [it] when he appeals to the Board.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
cited Cited as authority (rule) De Yun Liu v. Eric H. Holder, Jr.
8th Cir. · 2011 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004); Abebe v. Mukasey, 554 F.3d 1203, 1207-08 (9th Cir.2009) (en banc), cert. denied, - U.S. -, 130 S.Ct. 3272 , 176 L.Ed.2d 1182 (2010).
discussed Cited as authority (rule) Villanueva v. Holder
8th Cir. · 2010 · confidence medium
“We review the Board’s conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
cited Cited as authority (rule) Fesehaye v. Holder
8th Cir. · 2010 · confidence medium
Manani v. Filip, 552 F.3d 894, 901 (8th Cir.2009); Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
discussed Cited as authority (rule) Azie v. Holder
8th Cir. · 2010 · confidence medium
“We review the [BIAj’s conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
discussed Cited as authority (rule) Adrianus Marulitua v. Michael B. Mukasey (2×)
8th Cir. · 2009 · confidence medium
Marulitua now argues that the IJ erred by not considering his claim under a pattern-or-practiee-of-persecution theory, but this issue is not properly before us because Marulitua did not raise it before the BIA. 3 See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (if petitioner fails to raise issue in appeal to BIA, petitioner has not exhausted administrative remedies with respect to it).
discussed Cited as authority (rule) Ibrahima Balde v. Alberto Gonzales
8th Cir. · 2008 · confidence medium
Diallo does not challenge the denial of asylum, and Balde's challenge to the denial of CAT relief is not properly before us as he failed to raise it in his appeal to the BIA, see Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (appeals court lacks jurisdiction to review issue not presented to BIA).
examined Cited as authority (rule) Rodriguez v. Mukasey (3×) also: Cited "see"
8th Cir. · 2008 · confidence medium
“We review the Board’s conclusions of law de novo, with substantial deference to its in-' terpretations of statutes and regulations administered by the agency.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
examined Cited as authority (rule) David Rodriguez v. Peter D. Keisler (3×) also: Cited "see"
8th Cir. · 2008 · confidence medium
“We review the Board’s conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency.” Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004).
discussed Cited as authority (rule) Kechkar v. Gonzales
10th Cir. · 2007 · confidence medium
But he offers no analysis and cites no authority for this proposition other than the concurring opinion in Ateka v. Ashcroft, 384 F.3d 954, 958 (8th Cir. 2004), which emphasized that the issue Kechkar now raises was not before the court.
discussed Cited as authority (rule) Kechkar v. Gonzales
10th Cir. · 2007 · confidence medium
But he offers no analysis and cites no authority for this proposition other than the concurring opinion in Ateka v. Ashcroft, 384 F.3d 954, 958 (8th Cir.2004), which emphasized that the issue Kechkar now raises was not before the court.
discussed Cited as authority (rule) Dominguez-Capistran v. John Ashcroft
8th Cir. · 2006 · confidence medium
As in the Ninth Circuit decision in Gao-Ay v. I.N.S., 931 F.2d 59 , 1991 WL 59606 , at *5 (9th Cir. 1991) (table), we are "particularly troubled by the fact that petitioner's application . . . will not be reviewed on the merits due to her counsel's failure to adhere to deadlines and follow procedures." Because our review is limited to the issues argued before the BIA, Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004), we refrain from passing on the question of ineffective assistance of counsel.
discussed Cited as authority (rule) Candelaria Dominguez-Capistran v. Alberto Gonzales, Attorney General of the United States (2×)
8th Cir. · 2006 · confidence medium
As in the Ninth Circuit decision in Gao-Ay v. I.N.S., 931 F.2d 59 , 1991 WL 59606 , at *5 (9th Cir.1991) (table), we are “particularly troubled by the fact that petitioner’s application ... will not be reviewed on the merits due to her counsel’s failure to adhere to deadlines and follow procedures.” Because our review is limited to the issues argued before the BIA, Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004), we refrain from passing on the question of ineffective assistance of counsel.
discussed Cited as authority (rule) K. Phokhasombath v. Alberto Gonzalez
8th Cir. · 2005 · confidence medium
The remaining arguments the Phokhasombaths raise provide no basis for granting their petition; they failed to raise to the BIA their challenges to the denial of withholding of removal and CAT relief, see Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004); and we lack jurisdiction to consider the denial of voluntary departure, see Lorenzo-Gonzales v. Gonzales, 419 F.3d 754, 756 (8th Cir.2005) (per curiam).
discussed Cited as authority (rule) Andrushkevich v. Attorney General
3rd Cir. · 2005 · confidence medium
See INS v. Elias-Zacarias, 502 U.S. 478, 481 , *124 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992) (standard of review for determinations of asylum eligibility); Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (according substantial evidence review to IJ determination that Ateka made a false claim to U.S. citizenship).
cited Cited as authority (rule) Titilayo Falaja, Adebayo Falaja v. Alberto Gonzales, Attorney General of the United States of America, 1
8th Cir. · 2005 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
cited Cited as authority (rule) Titalayo Falaja v. John Ashcroft
8th Cir. · 2005 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004). 5 Adebayo filed a supplement to his mother's application for adjustment of status.
cited Cited as authority (rule) Titilayo Falaja, Adebayo Falaja v. Alberto Gonzales, Attorney General of the United States of America, 1
8th Cir. · 2005 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
cited Cited as authority (rule) Titalayo Falaja v. John Ashcroft
8th Cir. · 2005 · confidence medium
Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004). 5 Adebayo filed a supplement to his mother's application for adjustment of status.
discussed Cited "see" Carlos Gonzalez Osorio v. Merrick B. Garland
8th Cir. · 2022 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise particular issue when he appeals to BIA, he has not exhausted administrative remedies); cf. Mayorga-Rosa v. Sessions, 888 F.3d 379, 382-83 (8th Cir. 2018) (burden is on applicant to propose a particular social group).
discussed Cited "see" Hassam Ahmed v. Merrick B. Garland
8th Cir. · 2022 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise a particular issue when he appeals to BIA and has not presented BIA with need or opportunity to address that issue, petitioner has not exhausted administrative remedies).
discussed Cited "see" Pedro Zetino-Mejia v. Merrick B. Garland
8th Cir. · 2021 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise particular issue when he appeals to BIA, he has not exhausted administrative remedies).
discussed Cited "see" Yaroslav Rozhko v. Monty Wilkinson
8th Cir. · 2021 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004) (if petitioner fails to raise particular issue when he appeals to BIA, petitioner has not exhausted administrative remedies).
cited Cited "see" Olga Martinez-Canales v. Loretta E. Lynch
8th Cir. · 2016 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (exhaustion of administrative remedies).
discussed Cited "see" Amardeep Singh v. Loretta E. Lynch
8th Cir. · 2015 · signal: see · confidence high
See Martinez Carcamo v. Holder, 713 F.3d 916, 925 (8th Cir.2013) ("A petitioner has not exhausted administrative remedies with respect to a particular issue [as required by 8 U.S.C. § 1252 (d)(1)] if he fails to raise it when he appeals to the Board.” (quoting Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (internal marks omitted))); Mambwe v. Holder, 572 F.3d 540, 551 (8th Cir.2009) ("[T]o the extent [the petitioner]^ due process claim relates to the proceedings before the IJ, we may not consider it because [the petitioner] failed to raise the issue in her appeal to the [Board].”). …
cited Cited "see" Crocock v. Holder
2d Cir. · 2012 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 958 (8th Cir.2004).
cited Cited "see" Yu Chen v. Eric H. Holder, Jr.
8th Cir. · 2010 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
cited Cited "see" Ming Lin Zhang v. Alberto Gonzales
8th Cir. · 2008 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004) (if petitioner fails to raise issue in appeal to BIA, petitioner has not exhausted administrative remedies as required).
discussed Cited "see" Theodros v. Gonzales
5th Cir. · 2007 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 956-57 (8th Cir.2004) (same finding under 8 U.S.C. § 1182 (a)(6)(C) of the INA, which has language identical to 8 U.S.C. § 1227 (a)(3)(D)); Rana v. Gonzales, 175 Fed.Appx. 988, 996-97 (10th Cir.2006) (unpublished; same).
discussed Cited "see" Ahmad Wali Sultani Saleha Sultani Beejan Sultani Mariam Sultani Ahmad Wasim Sultani v. Alberto Gonzales, Attorney General
8th Cir. · 2006 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam) (declining to address arguments regarding alien’s recent marriage and its effect on his immigration status because he had not exhausted his administrative remedies).
discussed Cited "see" Ahmad Wali Sultani v. Alberto Gonzales
8th Cir. · 2006 · signal: see · confidence high
See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. -8- 2004); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir. 2003) (per curiam) (declining to address arguments regarding alien's recent marriage and its effect on his immigration status because he had not exhausted his administrative remedies).
discussed Cited "see, e.g." Kirong v. Mukasey (2×)
8th Cir. · 2008 · signal: see also · confidence medium
See id.; see also Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004); Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir.2007); United States v. Karaouni, 379 F.3d 1139, 1143 (9th Cir.2004).
cited Cited "see, e.g." Paul Kirong v. Michael B. Mukasey
8th Cir. · 2008 · signal: see also · confidence medium
See id.; see also Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir. 2004); Kechkar v. Gonzales, 500 F.3d 1080, 1085 (10th Cir. 2007); United States v. Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004).
cited Cited "see, e.g." Meidi Cao v. Alberto Gonzales
8th Cir. · 2007 · signal: see, e.g. · confidence medium
See, e.g., Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.2004).
Retrieving the full opinion text from the archive…
Elija Kebaso ATEKA, Petitioner,
v.
John ASHCROFT, Respondent
03-2962.
Court of Appeals for the Eighth Circuit.
Sep 24, 2004.
384 F.3d 954
Phillip Frederick Fishman, argued, Minneapolis, MN (Sonseere Henton Golden-berg, on the brief), for petitioner., Jennifer Paisner, argued, Washington, D.C. (Peter D. Keisler and David V. Ber-nal; on the brief), for respondent.
Murphy, Bright, Melloy.
Cited by 51 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 70%
Citer courts: Eighth Circuit (1)
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Petition for review from the Board of Immigration Appeals.

Phillip Frederick Fishman, argued, Minneapolis, MN (Sonseere Henton Goldenberg, on the brief), for petitioner.

Jennifer Paisner, argued, Washington, D.C. (Peter D. Keisler and David V. Bernal, on the brief), for respondent.

Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.

MURPHY, Circuit Judge.

Lead Opinion

MURPHY, Circuit Judge.

Elija Kebaso Ateka, a native and citizen of Kenya, petitions for review from a final order of the Board of Immigration Appeals affirming an immigration judge’s ruling that he was ineligible for lawful permanent resident status because he had made a false claim of citizenship on an 1-9 employment eligibility form. We deny the petition.

Ateka entered the United States in August 1996 on a nonimmigrant student visa. Instead of attending school in North Carolina as authorized, he moved to Minnesota and got a job as a nurse’s aide at the Southview Walker nursing home in May 1997. In order to get the job Ateka had to fill out a Form 1-9 in March 1997 relating to his employment eligibility, and he checked the first box on the form to indicate that he was “a citizen or national of the United States.” In July 1997 Ateka married a United States citizen, and his wife subsequently filed a visa petition on his behalf concurrent with his application for adjustment of status.

The Immigration and Naturalization Service (INS) interviewed Ateka in January 1998 about his eligibility for adjustment of status. When the INS officer asked whether he had made a false claim to United States citizenship on his Form 1-9, he answered three times that he had. He said he had done so because “[he] needed to survive, [he] had no money, [he] had no other options.” On May 13, 1998, the INS denied Ateka’s adjustment of status application and charged him with re-movability for overstaying his student visa and for falsely claiming United States citizenship to obtain a benefit under the Immigration and Nationality Act or other federal or state law. At a hearing on September 22, 1998, Ateka conceded re-movability for remaining longer than permitted, but he denied having falsely claimed United States citizenship. He requested relief from removal and adjustment of status to that of permanent resident under 8 U.S.C. § 1255.

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted on September 30, 1996, some time before Ateka filled out his Form 1-9. IIRIRA provides in part that:

Any 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 this chapter (including section 1324a of this title) or any other Federal or State law is inadmissible.

8 U.S.C. § 1182(a)(6)(C)(ii)(I)- Section 1324a of the statute makes it unlawful knowingly to hire or employ any alien who is not authorized to work in the United States. See 8 U.S.C. § 1324a. The immigration judge concluded that under IIRI-RA an alien who has falsely represented himself to be a United States citizen in order to procure employment is inadmissible to the United States. He found Ateka inadmissible because he had made such a false representation and concluded that he was therefore ineligible for adjustment of status under 8 U.S.C. § 1255(a).[1] Ateka appealed, and a member of the Board of Immigration Appeals affirmed the immigration judge’s decision without opinion, pursuant to 8 C.F.R. 1003.1(a)(7). Ateka timely petitioned for review.

Ateka argues that the Board erred in finding that he had made a false representation of citizenship, that it misapplied the law on the legal consequences of such[*957] a misrepresentation, and it should not have affirmed without opinion. We treat the immigration judge’s opinion as that of the Board when it has affirmed without a written opinion. See 8 C.F.R. § 1003.1(a)(7); Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir.2003). The Board’s findings of fact will be disturbed only if unsupported by substantial evidence. Negele v. Ashcroft, 368 F.3d 981, 982 (8th Cir.2004). We review the Board’s conclusions of law de novo, with substantial deference to its interpretations of statutes and regulations administered by the agency. Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002).

Ateka contends that when he checked the box on the Form 1-9 indicating that he was a “citizen or national of the United States,” he was making- what he thought might be the truthful representation that he was a “national of the United States.” The immigration judge found this claim not credible in light of Ateka’s multiple admissions to .an INS officer that he had made a false representation of United States citizenship on his Form 1-9 in order to procure employment. At his interview Ateka initially did not remember which box he had checked on the form, and he never suggested to the INS officer that he thought he was truthfully representing that he was a national of the United States. Moreover, in his testimony before the immigration judge he admitted that he did not know what a “national” was and that he had knowingly misrepresented his employment eligibility when he completed the Form 1-9. Given his prior statements and his testimony, there was substantial evidence to support the immigration judge’s finding that Ateka had intentionally made a false representation of United States citizenship in order to procure employment.

Ateka also now argues that making a false representation of citizenship in order to procure employment does not necessarily make an alien inadmissible because employment is not a “purpose or benefit under [the Immigration and Nationality Act] or any other Federal or State law.” Ateka failed to raise this argument before the immigration judge or in his appeal to the Board. He in fact explicitly stated in his filings before the Board that his appeal raised “the sole question of whether the mere checking of the first box on a Form 1-9 ... can be interpreted as constituting an unequivocal false claim to U.S. citizenship.”[2] The Attorney General contends that we cannot consider Ateka’s “purpose or benefit” argument since it was not raised before the Board.

The Immigration and Naturalization Act provides that a,court may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). If a petitioner fails to raise a particular issue when he appeals to the Board and has not presented the Board with the need or opportunity to address that issue, the petitioner has not exhausted administrative remedies with respect to it. The IIRIRA provision at issue in his immigration proceeding is short, and he focused his appeal argument to the Board on whether he had made a false representation. He raised no argument then about the next few words in the statute. We accordingly decline to address' Ateka’s unexhausted argument regarding whether employment is a “purpose or benefit” within the meaning of § 1182(a)(6)(C)(ii)(I). That issue is not properly before us. Cf. Halabi v. Ash[*958] croft, 316 F.3d 807, 808 (8th Cir.2003) (per curiam) (declining to address arguments regarding petitioner’s recent marriage and its effect on his immigration status because he had not exhausted his administrative remedies concerning his motion to reopen).

Finally, Ateka argues that the Board misapplied its streamlining regulations when it summarily affirmed the immigration judge’s decision without a written opinion, and he asks that we therefore remand his case for reconsideration. We generally lack jurisdiction to review the Board’s decision to use its streamlined procedure. Ngure v. Ashcroft, 367 F.3d 975, 988 (8th Cir.2004). Ateka contends he fits within an exception to the jurisdiction rule left open in Ngure-where there have been new legal developments which cast doubt on the immigration judge’s decision. See id. There we referenced Haoud v. Ashcroft, 350 F.3d 201 (1st Cir.2003), an immigration case remanded by the First Circuit after it was unable to determine whether the Board had “found a legitimate means” to distinguish another Board decision which had almost identical facts with a different outcome and which had been cited by the petitioner on his appeal to the Board.

Ateka’s situation is very different, and the developments he cites are unlike the intervening precedent in Haoud. Ateka reports that the Texas Service Center may not penalize aliens who have checked the first box on Form 1-9 if there is no other specific evidence of a false claim to United States citizenship, citing a meeting discussion in April 2001.[3] Not only does this citation not have the precedential value of a Board opinion, but in Ateka’s case there ls other evidence of a false claim to citizenship. Ateka also cites two Board decisions in support of his new argument that employment is not a “purpose or benefit” for purposes of § 1182(a)(6)(C)(ii)(I).[4] Not only were these cases based on a pre-IIRIRA statutory provision, but Ateka failed to bring them to the attention of the Board even though they had been issued before he made his final submissions. In these circumstances, we lack jurisdiction to review the Board’s decision to use its streamlined procedure.

For these reasons the petition is denied.

1

Section 1255(a) provides that an alien seeking adjustment of status from nonimmigrant must be "admissible to the United States for permanent residence "

2

The quoted language comes from his motion to expedite in October 2002; his supplemental submission to the Board in October 2001 refers to that question as the only issue on appeal, and his original brief in June 1999 states the issue similarly.

3

Cited at AILA InfoNet at Doc. No. 01041902.

4

Matter of Tachiwana, 25 Immig. Rptr. B1-165 (B.I.A. May 2, 2002) (unpublished); Mai-ter of [Unknown Ghanan National ] (B.I.A. June 5, 2000) (unpublished), available at http://www.ilw.com/lawyers/immigdaily/cases/ 2000,1011-scanl.shtm.

Concurrence

BRIGHT, Circuit Judge,

concurring separately.

I concur with the majority that substantial evidence in the record supports the immigration judge’s conclusion that Ateka had intentionally made a false representation of United States citizenship in completing Form 1-9 to seek employment from an employer. I write separately to underscore that this opinion is not to be applied as a per se bar to an immigrant’s residence status in other cases where an immigrant may have made a false statement of United States citizenship to obtain private employment.

Whether such misstatement in an application and, thereafter, obtaining of private employment amounts to a “benefit under this chapter,” as that phrase is used in section 1182(a)(6)(C)(ii)(I), is an important question which was not raised nor decided in this case. Such a determination remains for another case on another day.