In the

United States Court of Appeals
              For the Seventh Circuit

Nos. 10-3203, 11-2645, 12-1594

F IDEL M UNOZ-A VILA, also known as
F IDEL M UNOZ A VILA,
                                                        Petitioner,
                               v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                       Respondent.


              On Petitions for Review of an Order of
               the Board of Immigration Appeals.
                          A078-848-496



     S UBMITTED N OVEMBER 6, 2012—D ECIDED M AY 3, 2013




   Before R OVNER and H AMILTON, Circuit Judges, and
L EFKOW, District Judge.Œ
  R OVNER, Circuit Judge. Fidel Munoz Avila came to
the attention of the Department of Homeland Security
(DHS) when he filed an application for adjustment of


Œ
  The Honorable Joan Humphrey Lefkow, District Judge for
the Northern District of Illinois, is sitting by designation.
2                           Nos. 10-3203, 11-2645, 12-1594

status based on his marriage to a United States citizen.
Avila and his wife have been married since 1999, and
have two young daughters. He has been employed
laying granite countertops since approximately 1997.
DHS concluded that Avila was ineligible for adjustment
of status based on its determination that he attempted
to enter the United States on February 19, 1997, by repre-
senting himself to be U.S. citizen, and that he had
actually entered the United States at a later date
without presenting himself for inspection.
  DHS subsequently issued a Notice to Appear
charging that Avila was removable on the following
grounds: (1) as an alien present in the United States
without inspection or admission, under 8 U.S.C.
§ 1182(a)(6)(A)(I); and (2) as an alien who falsely repre-
sented himself to be a citizen of the United States for
an immigration benefit under 8 U.S.C. § 1182(a)(6)(C)(ii).
Avila conceded that he was removable as an alien who
is present without being admitted or paroled in that he
had entered the United States without presenting
himself to a border checkpoint. He contends, however,
that he is not removable for the additional reason that
he had made a false claim of U.S. citizenship.
  That allegation stemmed from an earlier, unsuccessful
attempt made by Avila to enter the United States. At
that time, he presented himself to a checkpoint, but was
detained and then allowed to withdraw his request for
admission and return to Mexico in lieu of removal pro-
ceedings. The government contends that at that check-
point, Avila made a false representation that he was a
U.S. citizen, and Avila denies that assertion.
Nos. 10-3203, 11-2645, 12-1594                            3

  The issue is significant even though Avila has
conceded removability as an alien present without being
admitted or paroled. That provision renders him remov-
able unless he demonstrates that he qualifies for and
merits some form of relief or protections from removal.
8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d). Avila
seeks relief from removal by adjusting his status based
on his marriage to a U.S. citizen, but in order to
establish eligibility for that relief, he must demonstrate
that he is admissible. See 8 U.S.C. § 1255(a). A false
claim of United States citizenship under 8 U.S.C.
§ 1182(a)(6)(C)(ii) is a grounds of inadmissibility. It has
been characterized as the “immigrant version of the
death penalty,” because that ground of inadmissibility
cannot be waived by the Attorney General and there-
fore operates as a permanent bar. Sandoval v. Holder,

, 984-85 (8th Cir. 2011); Kirong v. Mukasey, 

, 803 (8th Cir. 2008). Accordingly, Avila will be
prohibited from relief from removal and adjustment of
status unless he carries his burden of demonstrating
that he is not inadmissible for making a false claim of
United States citizenship. See 

a hearing, the Immigration Judge (IJ) found him
removable on both grounds and denied his applications
for adjustment of status and for voluntary departure. The
Board of Immigration Appeal (BIA) affirmed on appeal,
with one of the Board members dissenting without opin-
ion. Avila then appealed to this court, but at argument
requested that we stay our ruling until his motions to
reopen and for reconsideration before the BIA were
decided. The BIA ultimately denied him the requested
4                           Nos. 10-3203, 11-2645, 12-1594

relief in those motions, and he has appealed those deter-
minations to this court. The matters are consolidated
for purposes of this appeal.
   Where, as here, the BIA adopts and supplements the
IJ’s decision, we review the IJ’s decision as sup-
plemented by that of the BIA. Barradas v. Holder, 

, 762 (7th Cir. 2009). We will reverse only if the
evidence compels the conclusion that the BIA ruled
incorrectly. 

novo the BIA’s conclusions
of law. Gutierrez-Berdin v. Holder, 

, 651 (7th
Cir. 2010).
   At the hearing before the IJ, the government presented
no witness testimony, but relied on three documents to
establish that Avila claimed to be a U.S. citizen. Two of
the documents were government forms, Form I-213 and
the Notice of Visa Cancellation/Border Crossing Card
Voidance (“Notice of Visa Cancellation”), which were
filled out by immigration officials at the time that Avila
attempted to gain entry into the country. Form I-213
states that: “On the above date, the subject made applica-
tion for entry into the United States, from Mexico at
the San Ysidro, Port of Entry by presenting [a] Baptismal
Certificate . . . given by friends . . . .” That content is
essentially repeated in the Notice of Visa Cancellation,
which declares “On 2-18-97, the aforementioned subject
attempted to enter into the United States from Mexico,
afoot, via the San Ysidro, Port of Entry presenting an
entry document belonging to another. Subject was
allowed to withdraw in lieu of exclusion proceedings
and was returned to Mexico.” The third document intro-
Nos. 10-3203, 11-2645, 12-1594                           5

duced by the government is a baptismal certificate,
which the government argues is the baptismal certifi-
cate presented by Avila to the immigration officials.
   Avila testified at the hearing, and asserted that he
did not present the baptismal certificate to the immigra-
tion officials, but rather that it fell out of his pocket
when he approached them. He claims that he had found
the certificate on a bench in Mexico, and was bringing
it with him to the United States with the intent to
forward it to the church of the baptism so that it could
be returned to the owner. He asserted that such docu-
ments were routinely stolen by Mexican postal officials
so that he did not trust mailing it from there, and that
he knew that it was important to the owner because it
is often needed for marriage.
  The IJ did not find the testimony of Avila credible, and
therefore concluded that Avila had presented the certifi-
cate to the officials. There is no indication from either
the government or Avila of any other representation
made by Avila at the entry point other than the handing
of the certificate.
   The BIA affirmed the IJ’s determination, holding that
it could not conclude that the adverse credibility determi-
nation was erroneous. The BIA further held that the IJ
did not err in considering the documents introduced by
the government. In footnote 1, the BIA stated:
   We emphasize that the Immigration Judge’s deci-
   sion and our decision in this matter do not make a
   legal conclusion that the respondent made a false
   claim to United States citizenship. Rather, these deci-
6                            Nos. 10-3203, 11-2645, 12-1594

    sions are based on the respondent’s failure to carry
    his burden of proof with regard to his eligibility
    for adjustment of status, due to his failure to
    establish his admissibility.
BIA Order of August 24, 2010 at 2, n.1. The BIA, with
one Board member dissenting, thus did not conclude
that Avila had made a false claim of U.S. citizenship
and was subject to removal on that basis, but denied relief
on the uncontested ground of removal because it con-
cluded that Avila had failed to prove that he was not
inadmissible in that he failed to establish that he did
not file a false claim of U.S. citizenship.
  Avila filed motions to reopen and for reconsideration
to the BIA. One argument raised was that the IJ indeed
had held that Avila had made a false claim of citi-
zenship, and that the BIA erred in stating that the IJ
decision did not rest on that legal conclusion. In response,
the BIA granted the motion for reconsideration for the
purpose of merely deleting footnote 1, reasoning that
the IJ had in fact found that the government met its
burden of demonstrating that Avila was removable for
making a false claim of U.S. citizenship and that the IJ’s
conclusion was supported in the record. The BIA pro-
vided no other explanation or reasoning, and the dis-
senting member declined Avila’s request to set forth
his reason for dissenting. Avila now appeals both the
original decision and the decisions on his motions to
reopen and for reconsideration.
 Some of Avila’s claims on appeal can be dismissed
quickly. Avila contends that the IJ erred in considering
Nos. 10-3203, 11-2645, 12-1594                             7

the baptismal certificate and the government documents,
Forms I-213 and the Notice of Visa Cancellation. As we
set forth in Barradas, “[w]e have long allowed the admis-
sion of Forms I-213 to prove the truth of their con-

. We held that absent any indica-
tion that the forms contain information that is mani-
festly incorrect or obtained by duress, the forms should
be considered inherently trustworthy and admissible
as evidence. Id.; 

. Avila
has given us no reason to reconsider that determina-
tion, nor has he sought to distinguish the Notice of
Visa Cancellation, which contains the same essential
information as found on Form I-213. He does not argue
that the forms contain incorrect information or informa-
tion that was obtained by duress. Moreover, although
he challenges the admission of the baptismal certificate,
he does not contest that it was the certificate in his pos-
session at the entry point. The IJ did not err in con-
sidering those documents.
  Avila also asserts that the IJ erred in determining that
his testimony was not credible. As credibility determina-
tions are questions of fact, we examine the IJ’s findings
deferentially and uphold them if they are supported
by substantial evidence. Abraham v. Holder, 

,
632 (7th Cir. 2011); Nigussie v. Ashcroft, 

, 534-
35 (7th Cir. 2004). The IJ’s credibility determination is
well within that standard. The sequence of events de-
scribed by Avila is implausible at best, and the IJ did
not err in refusing to credit it.
 Therefore, accepting the IJ’s credibility determination,
we assume that the government forms are correct in
8                            Nos. 10-3203, 11-2645, 12-1594

documenting that Avila presented the baptismal
certificate at the inspection point. The question then
becomes whether that constitutes a representation that
he is a U.S. citizen. There is no evidence from any
source indicating that Avila made any oral statements
at all, and in fact there is no indication that he even
used the name of the person on the baptismal certificate.
Even if the handing of the certificate constitutes an
implicit representation that he is the person on the certifi-
cate, there is nothing in that certificate that constitutes
a representation that he is a U.S. citizen. The baptismal
certificate is a form that contains lines with the word
“city” under them, seeking the place of birth and, at a
later part of the form, requesting the location of the
baptism. The certificate presented by the government
states that Edgar Gabriel Martinez was born on March 15,
1978, and for the designation of the “city” of birth it
lists “Harbor City.” No state or country is set forth as to
the place of birth. The certificate further declares that
he was baptized nearly four months later, on July 2,
1978, and the “city” of baptism is “Wilmington, Califor-
nia.” In contrast to the place of birth, then, the location
of the baptism does indicate a state (and therefore a
country.) The locale of a person’s baptism, however,
does not indicate citizenship, and therefore the
Wilmington, California, reference does not constitute
a representation of U.S. citizenship.
  The caselaw is mixed as to whether a statement as to
a person’s place of birth can constitute a claim of citizen-
ship. Our court and others have held in the criminal
context that a statement that a person was born in
Nos. 10-3203, 11-2645, 12-1594                           9

the United States is insufficient to establish that he
falsely represented himself to be a U.S. citizen, because a
person may be born in the United States and not be
a citizen. See United States v. Weber, 

(7th
Cir. 1950), Smiley v. United States, 

, 506 (9th
Cir. 1950). That result may well reflect the strict burden
of proof in a criminal case, with the government
obligated to prove the matter beyond a reasonable
doubt. Here, the burden is on Avila to demonstrate that
he did not represent himself to be a U.S. citizen, and
therefore a representation that he was born in the
United States might make that burden insurmountable.
But we do not even have that much. There is no representa-
tion in the baptismal certificate that he was born in
the United States. 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 a state are tran-
scribed. Nor is the city name an easily identified place
such as Chicago or New York. The city name is “Harbor
City,” a rather generic city name that can be found in
some form in multiple states of the United States as well
as in other countries. 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. There is nothing inherent in “Harbor
City” that indicates the birthplace was in the United
10                           Nos. 10-3203, 11-2645, 12-1594

States. Nor does the state of the baptism, California,
add anything as that occurred nearly four months after
the date of birth and is set forth on the certificate at a
later part of the certificate from the listing of the birth-
place. In fact, the inclusion of the state in the latter
section and not the former is just as likely a means
of distinguishing it. There is no evidence that any repre-
sentation was made to the officials other than the pre-
sentation of the baptismal certificate, and therefore,
the question is whether the listing of “Harbor City,”
without more, is a representation by Avila that he was
a U.S. citizen. That is insufficient as a matter of law to
constitute such a representation. It may have provided
a reason to conduct a further inquiry, which could have
led to a verbal representation by Avila that he was a
United States citizen, but it does not in itself constitute
such a representation. To hold otherwise would be
to impose a permanent bar to admissibility based on
speculation rather than any concrete representation.
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 statute re-
quires. The bare representation that he was born in Harbor
City is not a representation of U.S. citizenship.
  In fact, the Form I-213 and Notice of Visa Cancellation
in this case support the conclusion that he did not repre-
sent himself to be a U.S. citizen because there is a notice-
able absence of any reference to such a representation
in those forms. That contrasts with the same forms dis-
cussed in myriad cases in which the forms explicitly
Nos. 10-3203, 11-2645, 12-1594                           11

detail that representations of U.S. citizenship were
made. For instance, in Shmyhelskyy v. Gonzales, 

, 479 (7th Cir. 2007), we quoted Form I-213 as stating
that Shmyhelskyy “ ‘applied for admission into the
United States from Mexico by claiming to be a United States
citizen.’ ” [emphasis added] Similarly, in Zarate v. Holder,

, 1136 (9th Cir. 2012), the court noted
that “[t]he Form I-213 states that ‘[a]t [the] time of
applying for admission to the United States, [Gomez]
presented a “Notification of Birth Registration” document
from the state of New Mexico and claimed to be a citizen
of the United States.’ ” [emphasis added] See also Barradas
v. Holder, 

, 758-59 (7th Cir. 2009) (noting
that Form I-831 and Form I-213 reflected that Barradas
gave U.S. certificates to the children he was transporting
and coached them to say that they were U.S. citizens).
In contrast, the Form I-213 and Notice of Visa Cancella-
tion here contain no such allegations of any representa-
tion to U.S. citizenship, nor do they relate any state-
ments from Avila to that effect. In fact, there is nothing
at all in those forms that indicated the officials perceived
the baptismal certificate as a claim of U.S. citizenship.
Form I-213 simply states that Avila made application
for entry into the United States by presenting a baptismal
certificate given by friends. The Notice of Visa Cancella-
tion similarly provides that Avila “attempted to enter
into the United States from Mexico, afoot, via the San
Ysidro Port of Entry presenting an entry document be-
longing to another. Subject was allowed to withdraw
in lieu of exclusion proceedings and was returned to
Mexico.” The language of those forms is more reflective
12                           Nos. 10-3203, 11-2645, 12-1594

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. The former
ground can be waived, but the false representation
of citizenship cannot be waived. See 8 U.S.C.
§§ 1182(a)(6)(C)(iii), 1182(i). There is absolutely nothing
in the forms indicating that the officials considered
Avila’s conduct to constitute a false representation of
citizenship.
  Because the baptismal certificate is not sufficient to
constitute a representation of U.S. citizenship, and the
government forms include no evidence that any such
representation was made or perceived, it cannot be the
basis for either removal or a finding of inadmissibility.
Accordingly, Avila has met his burden of demonstrating
that he is not inadmissible for falsely representing
himself to be a U.S. citizen, and therefore the matter
must be remanded for consideration of whether he
should be granted the discretionary relief from removal
in the form of adjustment of status.
  In light of that holding, there is no need to address
Avila’s other challenges, with the exception of the denial
of his motion to reopen. In his motion to reopen, Avila
sought to reopen removal proceedings so he could
submit a new application for relief in the form of with-
holding of removal and the United Nations Convention
Against Torture, and Other Cruel, Inhuman, or Degrading
Nos. 10-3203, 11-2645, 12-1594                            13

Treatment or Punishment, 23 I.L.M. 1027 (1984) (CAT).
We review the BIA’s denial of the motion to reopen
for abuse of discretion. Xiao Jun Liang v. Holder, 

, 988 (7th Cir. 2010). Avila argues that the BIA
did not address his claim to reopen based on CAT or for
withholding of removal, but instead denied reopening
based on its conclusion that he failed to present a meritori-
ous claim of asylum even though he never pursued
such a claim in the motion to reopen.
   We will uphold the BIA’s denial of a motion to reopen
“ ‘unless it was made without a rational explanation,
inexplicably departed from established policies, or
rested on an impermissible basis such as invidious dis-
crimination against a particular race or group.’ ” 

INS, 

, 907 (7th Cir. 2000).
The BIA—mistakenly, according to Avila—believed
that Avila also presented a claim for asylum, and ad-
dressed the three claims (CAT, asylum, and withholding
of removal) together in language directed to the
asylum claim rather than articulating the legal reasoning
as to those claims separately. That approach is prob-
lematic, and if we were unable to determine the BIA’s
reasoning for its decision as to each claim we would
need to remand it. That is not necessary in this case,
however, because the BIA made clear in the motion to
reconsider its denial of reopening that its reasoning
applied to the CAT and withholding of removal claims
as well, and Avila has failed to demonstrate any error
of law in the BIA’s decision.
  Avila argued that he was entitled to seek withholding
of removal on the basis that his life or freedom would
14                          Nos. 10-3203, 11-2645, 12-1594

be threatened on account of a protected ground, or that
he was entitled to protection under the CAT. The BIA
denied the request to reopen because Avila had not
presented sufficient evidence to establish his member-
ship in a particular group, and because his evidence
described a general atmosphere of violence in Mexico
but did not mention Avila or describe any indi-
vidualized risk that he may face upon return. As the
BIA emphasized on reconsideration of the denial of
reopening, the requirement that the violence be directed
at him based on his race, religion, nationality, member-
ship in a particular social group, or political opinion, is
the same for withholding of removal as for asylum. See
Mustafa v. Holder, 

, 750-51 (7th Cir. 2013)
(recognizing that membership in a particular group is
required for both and noting that qualification for with-
holding of removal requires an applicant to meet a higher
standard than for asylum). Accordingly, the failure to
properly identify the nature of the claim does not
require reversal because on appeal, Avila has failed to
even argue that the BIA’s conclusion was wrong, and
has failed to identify a membership in any particular
group. The BIA therefore addressed the withholding
of removal claim and properly held that it lacked merit.
  The BIA also denied the motion to reopen to assert a
CAT claim, holding that Avila had asserted only gen-
eralized violence in Mexico but had not even alleged
any individualized danger. On appeal, Avila once again
has failed to demonstrate any individualized risk of
harm, choosing instead to argue that generalized evi-
dence of danger is sufficient. We have repeatedly recog-
Nos. 10-3203, 11-2645, 12-1594                           15

nized that the level of overall danger in a country is not
a sufficient basis to find persecution, and that the peti-
tioner must demonstrate that he or she is likely to be
singled out. Toure v. Holder, 

, 428-29 (7th Cir.
2010); Raghunathan v. Holder, 

, 377-78 (7th
Cir. 2010). The CAT standard is a higher threshold than
that of asylum, and therefore the failure to meet the
asylum standard forecloses relief under CAT as well.
Pathmakanthan v. Holder, 

, 625 (7th Cir. 2010);
Restrepo v. Holder, 

, 965 (7th Cir. 2010). Avila
has failed to provide any evidence that he will be
singled out, and therefore the BIA did not err in refusing
to grant reopening to allow Avila to proceed with the
CAT claim.
  Avila raises no other meritorious issues. For the
reasons stated above, we reverse the determination of
the BIA that Avila failed to demonstrate that he is not
inadmissible because he represented himself to be a U.S.
citizen. Accordingly, we G RANT the petition for review,
V ACATE the BIA’s dismissal and R EMAND Avila’s case for
proper consideration of his request for relief from
removal and application for adjustment of status on
the merits. Costs are awarded to the petitioner.




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