Phony Baptism Record Can’t Spawn Deportation

CHICAGO (CN) - A Mexican man did not misrepresent himself as a U.S. citizen when he tried to cross the border with someone else's baptismal certificate, the 7th Circuit ruled.

Fidel Munoz-Avila first attempted to enter the United States in February 1997 by walking across the San Ysidro border. Immigration officials at the border checkpoint detained him, but they let Avila withdraw his request for admission and return to Mexico in lieu of removal proceedings.

Avila later entered the country without inspection, found work laying granite countertops, married a U.S. citizen in 1999, and fathered two daughters.

When Avila petitioned for an adjustment of status based on his marriage, the Department of Homeland Security initiated removal proceedings against him on two grounds. It said Avila was removable because he entered the country without inspection and misrepresented himself as a U.S. citizen when he attempted entry in 1997 by handing officers a certificate that stated that he was baptized in California.

The certificate bore the name "Edgar Gabriel Martinez." It listed "Harbor City" as the city of birth, but did not specify a state or country. The certificate listed "Wilmington, California," as the city of baptism.

Avila conceded removability based on his uninspected entry but argued that he never claimed to be a citizen during the failed attempt.

Although entering the United States without inspection subjects Avila to removal proceedings, he can seek relief from removal based on marriage if he is admissible.

"A false claim of United State citizenship [however] ... is a grounds of inadmissibility," the 7th Circuit's ruling states. "It has been characterized as the 'immigrant version of the death penalty,' because it cannot be waived by the Attorney General and therefore operates as a permanent bar."

At his hearing, Avila testified that he never presented the baptismal certificate to border officers, but that it instead fell out of his pocket. Avila also claimed that he found the certificate and kept it while crossing the border so that he could arrange for it to be forwarded to the proper owner by mailing it to the church where the baptism occurred.

The government offered no witnesses in opposition, but instead argued that Avila had failed to meet his burden of proof.

After determining that Avila's testimony was not credible, an immigration judge found him removable on both grounds. A divided three-member Board of Immigration Appeals affirmed.

But Avila's arguments resonated with the 7th Circuit, which vacated the removability order Friday.

"Even if the handing of the certificate constitutes an implicit representation that he is the person on the certificate, there is nothing in that certificate that constitutes a representation that he is a U.S. citizen," Judge Ilana Rovner wrote for a three-member panel.

"There is no representation in the baptismal certificate that he was born in the United States," she added. "Only the city, not the state or country is provided in the space for indicating the place of birth, in stark contrast to the place for recording the location of the baptism in which both a city and state are transcribed."

Rovner noted that "Harbor City" is a "rather generic name" and that there are many cities around the world with variations of the name.

"To name just a few, there is a Harbor City that is a neighborhood of the city of Los Angeles, a Harbor, Oregon, an Egg Harbor in Wisconsin and New Jersey, Harbour Islands in Canada and the Bahamas, a Harbour View that is a community in Jamaica, and even a Harbor City in Hong Kong that is a large mall area which appears to include hotels as well as stores," the opinion states. "There is nothing inherent in 'Harbor City' that indicates the birthplace was in the United States."

Although the certificate may have provided immigration officials with reason to inquire further about Avila's status, which could have prompted him to represent himself as a citizen, there is no evidence in the record that this occurred.

"To hold otherwise would be to impose a permanent bar to admissibility based on speculation rather than any concrete representation," Rovner wrote. "Given the drastic impact of the lifetime bar that follows from such a representation, we are loath to read it in so sweeping a manner as to include weak implications rather than the representations that the statue requires."

The court also considered it significant that neither of the two forms completed by immigration officials during Avila's detention mentioned that he had claimed to be a U.S. citizen.

"The Notice of Visa Cancellation ... provides that Avila 'attempted to enter into the United States from Mexico, afoot, via the San Ysidro Port of Entry presenting an entry document belonging to another," Rovner wrote. "Subject was allowed to withdraw in lieu of exclusion proceedings and was returned to Mexico.'"

"The language of those forms is more reflective of § 1182(a)(6)(C)(i) which denies admissibility to any person who, by fraud or willfully misrepresenting a material fact, seeks to procure admission into the United States, rather than the § 1182(a)(6)(C)(ii) ground of inadmissibility for any person who falsely represents himself to be a citizen of the United States," she added. "The former ground can be waived, but the false representation of citizenship cannot be waived."

The ruling will let Avila request cancellation of removal based on his marriage, but does not guarantee that he will be allowed to stay in the United States.

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