FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID ISRAEL DIAZ-JIMENEZ, No. 15-73603 Petitioner, Agency No. v. A204-294-379 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 17, 2017 San Francisco, California Filed August 30, 2018 Before: Edward Leavy, William A. Fletcher, and Richard A. Paez, Circuit Judges. Opinion by Judge W. Fletcher 2 DIAZ-JIMENEZ V. SESSIONS SUMMARY* Immigration The panel granted David Israel Diaz-Jimenez’s petition for review of a decision of the Board of Immigration Appeals upholding his order of removal, holding that Diaz was not removable under 8 U.S.C. § 1182(a)(6)(C)(ii)(I), as an alien who made a false claim of citizenship to obtain private employment, because there was no basis in the record to conclude that Diaz represented himself as a citizen on a Form I–9, and remanded. Under 8 U.S.C. § 1182(a)(6)(C)(ii)(I), 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 this chapter (including [8 U.S.C. § 1324a]) or any other Federal or State law is inadmissible.” The panel held that private employment is a “purpose or benefit” within the meaning of § 1182(a)(6)(C)(ii)(I). The panel observed that § 1182(a)(6)(C)(ii)(I) refers to 8 U.S.C. § 1324a, which makes it unlawful to hire an unauthorized alien. The panel further explained that § 1324a covers federal employment, but its principal concern is private employment. Thus, the panel concluded that by specifically referencing § 1324a in the text of § 1182(a)(6)(C)(ii)(I), Congress expressed an intent to make private employment a qualifying “purpose or benefit.” * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. DIAZ-JIMENEZ V. SESSIONS 3 Next, the panel addressed Diaz’s argument that, even if private employment qualifies as a purpose of benefit, he had not made a false representation of citizenship for the purposes of § 1324a. As a preliminary matter, the panel concluded that Diaz had satisfied the exhaustion requirement with respect to this issue, explaining that Diaz did not make the precise argument to the BIA, but he gave the BIA an adequate opportunity to pass on the issue. Addressing the merits, the panel observed that § 1324a(b)(2) requires a person seeking employment to attest to United States citizenship on “the form designated or established” for that purpose, and that the relevant designated form under § 1324a(b)(2) is Form I–9. The panel held that an alien can violate § 1182(a)(6)(C)(ii)(I) by a false representation of citizenship for the “purpose or benefit” of obtaining private employment under § 1324a only when such a representation is made under § 1324a(b)(2) on a Form I–9. In so concluding, the panel considered the language of § 1182(a)(6)(C)(ii)(I), the BIA’s decision in Matter of Bett, 26 I. & N. Dec. 437, 440 (BIA 2014) (holding that an alien who ...
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