Jane Downs v. Eric H. Holder, Jr.

Filing

OPINION FILED - THE COURT: William Jay Riley, James B. Loken and Kermit E. Bye AUTHORING JUDGE:Kermit E. Bye (PUBLISHED) [4174586] [13-1643]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1643
___________________________
Jane Waitherero Downs
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 12, 2014
Filed: July 14, 2014
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Before RILEY, Chief Judge, LOKEN and BYE, Circuit Judges.
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BYE, Circuit Judge.
Jane Waitherero Downs petitions for review of a decision of the Board of
Immigration Appeals (BIA), which dismissed her appeal from an Immigration
Judge’s (IJ) order. The IJ concluded Downs was removable and denied, as relief from
removal, Downs’s petition for adjustment of status. Downs asks the court to remand
for a new removal hearing, contending the IJ erred in denying her motion to suppress

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certain records, which she argues were obtained and admitted in the removal
proceeding in violation of her statutory rights. We deny the petition for review.
I
Jane Waitherero Downs, born Jane Waitherero Itota, is a national and citizen
of Kenya. She was admitted to the United States in 2002 as a non-immigrant student
to study at Wichita State University in Kansas. While pursuing her studies, Downs
became aware of available employment at a nursing home. As the position required
completion of a course of study as a nursing assistant, Downs twice applied to take
a nursing assistant course offered through Hutchison Community College (HCC). On
each application, Downs marked a box indicating she was a United States citizen.
After completing the course, Downs began working at the nursing home. On two I-9
employment eligibility verification forms she later filled out, Downs checked boxes
indicating she was a citizen or national of the United States.
In early 2006, Downs married a U.S. citizen. Shortly after marrying, Downs’s
husband filed a family-based visa petition on Downs’s behalf. Downs simultaneously
filed a petition to adjust her status to lawful permanent resident. Downs’s application
included a provision she signed giving her consent for the release of “any information
from [her] records” needed to determine her eligibility for adjustment of status.
Pet’r’s Br. 9.
In January 2008, a United States Citizenship and Immigration Services
(USCIS) officer interviewed Downs in regard to her petition to adjust status. Prior
to the interview, the USCIS officer used the document release consent provision
Downs had signed to obtain Downs’s HCC applications and other education records.
During the interview, the USCIS officer confronted Downs with her indication
on the applications that she was a United States citizen. Downs admitted she had
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indicated she was a United States citizen on the applications. As a result, USCIS
denied her application to adjust status and commenced removal proceedings against
Downs before an IJ. USCIS alleged Downs was removable for having worked in
violation of the conditions of her non-immigrant status and for having falsely claimed
United States citizenship to obtain a benefit under state or federal law. Downs
conceded she was removable for having worked in violation of the conditions of her
non-immigrant status, but contested the allegations she had falsely claimed United
States citizenship.1 Downs also applied for relief from removal by again seeking
adjustment of status.
In the proceedings before the IJ, Downs moved to suppress her HCC
applications and I-9 forms. The IJ denied the motion and, ultimately, found Downs
had falsely claimed United States citizenship, which rendered her removable and
ineligible to adjust her status. Downs appealed. The BIA denied the appeal, adopting
the IJ’s findings of fact and most of the IJ’s reasoning. Downs petitions this court for
review, challenging the IJ’s denial of her motion to suppress.
II
We review the BIA opinion, which includes the IJ’s decision to the extent
adopted by the BIA, as the final agency decision. Falaja v. Gonzales, 418 F.3d 889,
894 (8th Cir. 2005) (citing Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir. 2005)). In
removal actions, we review issues of law de novo. Garcia-Torres v. Holder, 660 F.3d
333, 335 (8th Cir. 2011).

1

Downs’s concession she is removable does not moot the case. A finding
Downs falsely claimed citizenship carries with it a permanent bar on reentry into the
United States, whereas Downs’s admission she worked in violation of the terms of
her non-immigrant status does not. See 8 U.S.C. § 1182(a)(6)(C)(ii).
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III
On review, Downs asks the court to remand the case for new removal
proceedings, arguing the IJ erred by denying her motion to suppress her I-9 forms and
her HCC applications.2 Downs contends the use of her I-9 forms in the removal
proceedings violated section 274A of the Immigration and Nationality Act (INA), and
the USCIS officer obtaining her educational records violated her rights under the
Federal Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g.
A.

INA violation.

Downs first contends exclusion of her I-9 forms was required by INA
§ 274A(b)(5), codified as 8 U.S.C. § 1324a(b)(5). She contends the plain meaning
of the text of INA § 274A(b)(5) prohibits the use of an I-9 form in a removal
proceeding. We disagree. In pertinent part, INA § 274A(b)(5) states as follows3:
A form designated or established by the Attorney General under this
subsection . . . may not be used for purposes other than for enforcement
of this Act and sections 1001, 1028, 1546, and 1621 of Title 18.

2

Downs also raises new arguments that the IJ improperly took judicial notice
that HCC is a public school, and conflated the burdens of proof. Downs did not raise
those issues before the BIA and has failed to administratively exhaust them.
Accordingly, we do not have jurisdiction to consider those issues. Sultani v.
Gonzales, 455 F.3d 878, 884 (8th Cir. 2006).
3

There is a discrepancy in the published versions of the text of this provision.
Some versions indicate INA § 274A(b)(5) sets forth that an I-9 “may not be used for
purposes other than for enforcement of this chapter[.]” (Emphasis added). The
original text of the Immigration Reform and Control Act of 1986 (IRCA), which
added this provision to the INA, uses the term “Act.” This discrepancy does not
affect our analysis.
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The parties agree INA § 274A(b)(5) refers to the I-9 employment eligibility
verification form. The issue in this case is whether “enforcement of this Act” refers
to enforcement of the INA or, as Downs contends, enforcement of the Immigration
Reform and Control Act of 1986 (IRCA), which amended the INA to include
§ 274A(b)(5). As § 274A(b)(5) is a section of the INA, the plain and unambiguous
meaning of the reference to “this Act” is to the INA. We find nothing in the INA or
the IRCA to support Downs’s contention that the reference to “this Act” in INA
§ 274A(b)(5) is to the IRCA.
Downs argues our interpretation of “this Act” in INA § 274A(b)(5) as a
reference to the INA is contradicted by the legislative history of the IRCA. Although
the legislative history of the IRCA is informative, it does not override the plain
meaning of the unambiguous text of the INA. “Congress’s authoritative statement is
the statutory text, not the legislative history.” Chamber of Commerce of U.S. v.
Whiting, 131 S. Ct. 1968, 1980 (2011) (internal quotation marks and citation
omitted).
Downs next argues the development of Supreme Court precedent has confined
the use of I-9 forms to criminal proceedings. Downs relies on portions of two
Supreme Court cases, Arizona v. United States, 132 S. Ct. 2492, 2504 (2012),4 and
Whiting, 131 S. Ct. at 1974,5 which refer to limits on the use I-9 forms. However,

4

“Congress has made clear, however, that any information employees submit
to indicate their work status ‘may not be used’ for purposes other than prosecution
under specified federal criminal statutes for fraud, perjury, and related conduct. See
8 U.S.C. §§ 1324a(b)(5), (d)(2)(F)-(G).”
Arizona, 132 S. Ct. at 2504.
5

“The form I-9 itself ‘and any information contained in or appended to [it] . . .
may not be used for purposes other than for enforcement of’ IRCA and other
specified provisions of federal law. § 1324a(b)(5).”
Whiting, 131 S. Ct. at 1974.
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Arizona and Whiting were cases concerning federal preemption of state statutes and
the use of an I-9 form in a removal proceeding was not an issue raised in either case.
As such, the decisions do not constitute binding precedent on this issue which would
overrule the plain meaning of the text of INA § 274A(b)(5). See Webster v. Fall, 266
U.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having been so
decided as to constitute precedents.”).
The remaining question is whether a removal proceeding regarding a false
claim to United States citizenship is a proceeding to enforce the INA. It is clear this
is the case. Removal proceedings and the provision prohibiting falsely claiming
United States citizenship are both contained in the INA. See INA §§ 237(a)(3)(D)
(false claims of citizenship), 240 (removal proceedings). Accordingly, INA
§ 274A(b)(5) allows the admission of I-9 forms into evidence in removal proceedings.
B. FERPA violation.
Downs next contends the use of her HCC applications violated her rights under
the FERPA. The government argues the FERPA does not confer private rights
against the disclosure of educational records and, as such, Downs has no right to
assert. We need not address whether the FERPA confers such rights here. There is
a threshold issue which disposes of Down’s FERPA-based argument, namely whether
a violation of a statute such as the FERPA would warrant application of the
judicially-created exclusionary rule in removal proceedings.
In criminal cases, “[t]he primary justification for the exclusionary rule . . . is
the deterrence of police conduct that violates Fourth Amendment rights.” Stone v.
Powell, 428 U.S. 465, 486 (1976). Indeed, the Supreme Court noted it has primarily
applied the exclusionary rule to deter constitutional violations and only suppressed
evidence arising from a statutory violation when the violation implicated Fourth or
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Fifth Amendment interests. Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006).
We have cautioned courts in criminal cases to be wary of extending the exclusionary
rule to violations not of constitutional magnitude. See United States v. Hornbeck,
118 F.3d 615, 618 (8th Cir. 1997).
Courts should be even more wary of extending the exclusionary rule to mere
statutory violations in the civil removal context. The Supreme Court has held the
exclusionary rule to generally be unavailable in removal proceedings, reasoning “the
likely costs of excluding probative evidence outweigh the likely social benefits.”
Puc-Ruiz v. Holder, 629 F.3d 771, 777 (8th Cir. 2010) (citing INS v. LopezMendoza, 468 U.S. 1032, 1039-42 (1984)). Indeed, we have opined that “[i]f . . .
exclusion is ever appropriate in the civil context of a removal proceeding, it should
be granted only because of an egregious or widespread Fourth Amendment
violation.” Martinez Carcamo v. Holder, 713 F.3d 916, 922 (8th Cir. 2013) (internal
quotation marks and citations omitted); see also Lopez-Mendoza, 468 U.S. at 1050-51
(limiting the general unavailability of the exclusionary rule in removal proceedings
to cases not involving “egregious violations of the Fourth Amendment or other
liberties transgressing the fundamental fairness of the removal proceedings or
affecting the probative value of the evidence obtained.”).
Mindful of these principles, we conclude that, absent an egregious violation of
the Fourth Amendment or other liberty which transgresses the fundamental fairness
of the removal proceedings or affects the probative value of the evidence obtained,
the exclusionary rule is not available in the removal context to remedy a mere
statutory violation of the FERPA. Downs has not asserted a violation of any
constitutional right which would affect the fairness of the removal proceedings or the
probative value of her HCC applications. Accordingly, assuming for the sake of
argument Downs had statutory rights which were violated under the FERPA, the
exclusionary rule would not be available in the proceedings below to remedy the
alleged violation.
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IV
The petition for review is denied.
______________________________

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