Amir Vana v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1595
___________
AMIR VANA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A78-492-675)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 5, 2009
Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges
(Opinion filed August 12, 2009)
___________
OPINION
___________
PER CURIAM
Amir Vana petitions for review of a final order of the Board of Immigration
Appeals (“BIA”). For the following reasons, we will deny the petition for review.

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Vana is a citizen of Israel who entered the United States on a visitor’s visa in 1993
and stayed beyond the six-month period. In June 2000, he was placed in removal
proceedings. In December 2000, the immigration judge (IJ) found Vana removable for
overstaying his visa, denied voluntary departure, and ordered him removed to Israel. In
November 2000, during the pendency of his removal proceedings, Vana pled guilty to
making false statements on a United States passport application, a violation of 18 U.S.C.
§ 1542; he was sentenced in 2001. During the pendency of his BIA appeal, Vana’s wife,
a United States citizen, filed an I-130 petition on Vana’s behalf, which was approved. In
2002, the BIA granted Vana’s motion to remand the removal proceedings for
consideration of Vana’s application for adjustment of status.
On remand, the Government charged Vana with additional grounds of
removability. After protracted proceedings that included an appeal to the Board and a
remand to Immigration Court, the IJ determined that the Government had proved Vana’s
removability by clear and convincing evidence. Specifically, the IJ found that Vana had
stayed in the United States beyond the time allowed by his visitor’s visa and that he
knowingly and willingly attempted to obtain a United States passport under a false name,
a false birth date and place of birth (in the United States), and false social security
number. The IJ pretermitted Vana’s application for adjustment of status, finding that he
was statutorily ineligible based on two separate inadmissibility provisions. First, the IJ
ruled that Vana was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii), as an alien who
falsely represented himself as a United States citizen by “willingly and knowingly”

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1 Vana conceded that § 1542 is a CIMT. A.R. 23.
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attempting to obtain a U.S. passport using false information. The IJ noted that there is no
statutory waiver excusing inadmissibility under § 1182(a)(6)(C)(ii). Second, the IJ ruled
that Vana was inadmissible under § 1182(a)(2)(A)(i)(I) based on his conviction of a crime
involving moral turpitude (“CIMT”). Vana appealed the denial of his request for
adjustment of status; the BIA adopted and affirmed the IJ’s decision. Vana filed a timely
petition for review.1
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.
§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the BIA
both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we
have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004). We lack jurisdiction over determinations that an alien does
not warrant the favorable exercise of discretion for adjustment of status. See 8 U.S.C. §
1252(a)(2)(B)(I); Pinho v. Gonzales, 432 F.3d 193, 204 (3d Cir. 2005). We exercise de
novo review, however, over constitutional claims and questions of law, and the
application of law to facts. 8 U.S.C. § 1252 (a)(2)(D). Vana challenges the IJ’s and
BIA’s determination that he was statutory ineligible for adjustment of status; hence, we
we review that argument de novo. See Pinho, 432 F.3d at 204 (concluding that a
“[d]etermination of eligibility for adjustment of status—unlike the granting of adjustment
of status itself—is purely a legal question and does not implicate agency discretion”).

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An adjustment of status is authorized if, inter alia, the alien is “admissible to the
United States.” 8 U.S.C. § 1255(a). The alien bears the burden of proving clearly and
beyond doubt that he was not inadmissible. See 8 U.S.C. § 1229a(c)(2)(A). “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 Act . . . or any other Federal or State
law is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I).
In his petition for review, Vana asserts that the IJ erred in finding that he was
inadmissible under § 1182(a)(6)(C)(ii)(I) based on his guilty plea to making false
statements on his passport application, because there was no evidence that he knowingly
represented himself to be a United States citizen when he sought a passport. Specifically,
Vana argues that “scienter” is an implied requirement of a “false claim of United States
citizenship” charge under § 1182(a)(6)(C)(ii)(I). He asserts that no evidence was
presented to the IJ that he subjectively knew that making a false statement on a passport
application was tantamount to making a false claim of citizenship. He claims, moreover,
that he did not make any such admission in the plea colloquy or in his removal
proceedings. Vana claims that he never intended to seek United States citizenship by
applying for a United States passport. He explains that he allowed someone to file a
passport application for him because he had been told that this would give him the right to
work authorization.
Vana’s argument is meritless. The IJ and the BIA properly relied on the fact of
Vana’s conviction under 18 U.S.C. § 1542 in ruling that Vana knowingly made a false

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2 Vana also argued that § 1182(a)(6)(C)(ii) should apply only in cases where the
alien is convicted under 18 U.S.C. § 911 (making a false claim of United States
citizenship), and not for a conviction under § 1542. An alien need not be convicted of
any offense, however, to be found inadmissible. See § 1182(a)(6)(C)(ii)(I).; cf.
Rodriguez v. Mukasy, 519 F.3d 773 (8th Cir. 2008) (holding that an alien who represents
that he is a “citizen or national of the United States” on Form I-9 for the purpose of
falsely representing himself as a citizen to secure employment has falsely represented
himself for a benefit or purpose under § 1182(a)(6)(C)(ii)).
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claim of United States citizenship. As one of our sister circuit courts has held, a guilty
plea to a § 1542 offense is sufficient for finding that an alien has falsely claimed United
States citizenship for § 1182(a)(6)(C)(ii)(I) purposes.2 See Rodriguez v. Gonzales, 451
F.3d 60 (2d Cir. 2006) (holding that a Dominican national’s conviction under 18 U.S.C.
§1542 amounted to a false representation of United States citizenship, rendering him
inadmissible under 8 U.S.C § 1182(a)(6)(C)(ii)). The elements of the § 1542 offense to
which Vana admitted his guilt are: (1) willfully; (2) making a false statement on a United
States passport application; (3 with the intent to induce or secure the issuance of the
passport, contrary to law. Here, among other things, Vana knowingly misrepresented that
he was born in the United States. His misrepresentation was willful in that it was
deliberately and voluntarily made with knowledge of the falsity of the representation. See
Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995). We agree with Rodriguez that by
knowingly applying for a false United States passport, Vana knowingly misrepresented
himself to be a United States citizen. Notably, and as the BIA itself observed, only a
United States citizen is entitled to receive a United States passport, and a United States

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3 See Matter of M—, 9 I. & N. Dec. 118, 119 (B.I.A. 1960) (Finding voluntary
and timely retraction where an alien corrected his misrepresentation prior to the
conclusion of his full statement and prior to any exposure of the attempted fraud).
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passport is considered to be conclusive proof of United States citizenship, unassailable in
collateral administrative proceedings, see 22 U.S.C. § 2705.
Next, relying on a nonprecedential case from another circuit, Vana asserts that he
retracted his claim of United States citizenship by opting not to pursue the passport
process after the application was filed. He never called to make inquiries about the status
of his application, and he never went back to pick up his passport. Assuming, without
deciding, that an alien may avoid inadmissibility under § 1182(a)(6)(C)(ii) by making a
timely retraction of a false statement of United States citizenship,3 we do not think that
Vana’s inaction regarding his passport application was sufficient to constitute a retraction.
See e.g., United States v. Sebaggala, 256 F.3d 59, 64 (1st Cir. 2001) (in the context of 18
U.S.C. § 1623(d), effective recantation requires “an outright retraction and repudiation”).
Vana did not correct his false statement or in any way repudiate it, nor did he withdraw
his passport application (filed in October 1999) before he was indicted in 2000.
For the forgoing reasons, we will deny the petition for review.

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