The opinion of the court was delivered by: Calabresi, Circuit Judge:
(Argued: February 27, 2013
Before: CALABRESI, POOLER, and RAGGI, Circuit Judges.
Petition for review of a decision by the Board of Immigration Appeals, which found Petitioner inadmissible because, the Board held, he had made a false claim to United States citizenship in order to avoid being placed in removal proceedings. See Immigration and Nationality Act § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). Whether this aim counts as a "purpose or benefit under . . . Federal or State law," id.,and therefore a bar to admissibility, is a question neither we nor the Board has authoritatively answered. We remand so that the Board may do so in the first instance.
Petitioner Keon Richmond, a native and citizen of Trinidad and Tobago, remained in the United States beyond the term of the tourist visa which allowed his initial entry here in May 2001. When removal proceedings were brought against him, Richmond conceded removability but sought an adjustment of status-and thereby relief from removal-on the basis of his marriage to a United States citizen. The immigration judge and, subsequently, the Board of Immigration Appeals ("BIA") found Richmond ineligible for adjustment of status because, while incarcerated some years earlier, Richmond had lied to Department of Homeland Security officers about his citizenship status. This lie, the BIA held, was made in order to avoid being placed in removal proceedings. As such, according to the immigration judge and the BIA, it triggered the inadmissibility provision of Immigration and Nationality Act ("INA") § 212(a)(6)(C)(ii)(I), which bars "[a]ny alien who falsely represents . . . himself or herself to be a citizen of the United States for any purpose or benefit under [the Immigration and Nationality] Act . . . or any other Federal or State law." 8 U.S.C. § 1182(a)(6)(C)(ii)(I).
Neither the BIA nor this Court has previously issued a precedential opinion defining what counts as a "purpose or benefit" under federal or state law. We therefore vacate the BIA's decision in this case and remand so that the BIA may determine in the first instance the scope of conduct encompassed by § 212(a)(6)(C)(ii)(I).
Keon Richmond first entered the United States on May 3, 2001 using a non-immigrant visa, which he admits to overstaying. In September 2003, Richmond was arrested in New York and charged with second degree assault and resisting arrest. He was convicted in April 2005 and, the following month, sentenced to two years in prison. His conviction was overturned, however, by the New York State Appellate Division in January 2007.
While Richmond was imprisoned, the Ulster County Correctional Facility reported him to the Department of Homeland Security as an inmate "believed to be an alien." On May 27 and June 1, 2005, agents from Immigrations and Customs Enforcement ("ICE") visited Richmond in prison, interviewed him about his citizenship, and completed two I-215 affidavit forms on which Richmond swore that he was a United States citizen, born in Brooklyn, New York. The second agent to question Richmond later testified that he had advised Richmond to tell the truth, warning that whereas Richmond then faced, at worst, deportation, a lie about his citizenship could result in criminal prosecution.
In fact, a criminal prosecution did ensue: after authorities obtained Richmond's Trinidadian passport and birth certificate, Richmond was indicted and arraigned in December 2005 for violating 18 U.S.C. § 911 ("Whoever falsely and willfully represents himself to be a citizen of the United Sates shall be fined . . . or imprisoned not more than three years, or both."). In November 2006, the criminal charges were dropped in the "interests of justice,"and Richmond was referred to DHS for removal proceedings, which were initiated the following month.
In proceedings before the immigration judge ("IJ"), Richmond admitted that he was a native and citizen of Trinidad and Tobago and conceded removability for overstaying his visa, but sought an adjustment of status based on his marriage to a U.S. citizen. Richmond's adjustment petition ran aground, however, on the shoals of INA § 212, which makes inadmissible, inter alios,"[a]ny 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 (including section 274A) or any other Federal or State law."*fn2 INA § 212(a)(6)(C)(ii)(I), 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The IJ refused to credit Richmond's testimony that he believed, at the time he was questioned, that he had been born in the United States and was a citizen. Though Richmond claimed to have been told this by his mother, he produced no evidence from her to support his claim. Nor did Richmond explain how he could have gone through the process of obtaining a nonimmigrant visa to enter the United States at age nineteen without realizing that he was not a U.S. citizen. Having found Richmond's citizenship claims to have been knowingly false, the IJ further determined that his misrepresentations were meant to give him a "'get out of jail free card' in terms of Immigration law"-something the IJ concluded "must be considered as a type of benefit" under the INA.
The BIA agreed. In a single-member, non-precedential opinion issued March 13, 2012, the BIA found: (1) that although § 212(a)(6)(C)(ii)(I) does not require knowing falsity, someone who claims in good faith to be a U.S. citizen is not making that claim for any legal "purpose or benefit"; (2) that the IJ's determination that Richmond's claim to citizenship was not made in good faith survives clear error review; and (3) that "a false claim to United States citizenship made for the purpose of avoiding being ...