Xing Yang v. Eric Holder, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A070-577-145. [999464651]. [13-1682]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1682
XING YANG YANG, a/k/a Xing Yang,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
September 16, 2014
Decided:
October 29, 2014
Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition for review granted; vacated and remanded by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Senior Judge Davis joined.
ARGUED: Joshua E. Bardavid, BARDAVID LAW, New York, New York,
for Petitioner. Kerry Ann Monaco, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Eric Y.
Zheng, New York, New York, for Petitioner.
Stuart F. Delery,
Assistant Attorney General, Civil Division, Linda S. Wernery,
Assistant Director, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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KING, Circuit Judge:
Xing Yang Yang, a native of China, petitions for review of
the May 31, 2013 decision of the Board of Immigration Appeals
(the “BIA”) affirming the denial of his various applications for
relief from deportation (the “BIA Decision”). 1
We grant Yang’s
petition for review, vacate the BIA Decision, and remand for
further proceedings.
I.
As
explained
below,
we
ultimately
conclude
that
Yang’s
petition should be granted because of erroneous inadmissibility
rulings, which would preclude Yang from obtaining adjustment of
status.
The
multiple
issues
facets
of
in
this
proceeding,
immigration
law.
We
however,
touch
on
therefore
begin
by
reviewing relevant aspects of the legal landscape, which has
been largely provided by the Immigration and Nationality Act
(the “INA”) and its implementing regulations.
An
alien
who
enters
the
United
States
without
required
documentation, and who remains present here, is deportable.
See
8
its
U.S.C.
§§ 1182(a)(7)(i),
1227(a)(1)(A).
The
INA
and
regulations offer several avenues by which such an alien may
1
The BIA Decision is found at J.A. 3-7. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this matter.)
2
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seek relief from deportation and lawfully remain in the United
States.
and
Those options and alternatives include awards of asylum
withholding
of
removal,
protection
under
the
Convention
Against Torture (the “CAT”), and adjustment of status.
Asylum,
withholding
of
removal,
and
CAT
protection
are
separate forms of relief, but each prevents an alien from being
deported if certain conditions are met.
For example, asylum is
generally available to an alien who is a “refugee,” meaning that
he is “unable or unwilling” to return to his native country
because of “persecution or a well-founded fear of persecution on
account
of
particular
race,
social
§§ 1158(b)(1),
requires
the
religion,
group,
nationality,
or
political
1101(a)(42).
alien
to
show
A
a
membership
opinion.”
“withholding
“clear
8
of
probability”
in
a
U.S.C.
removal”
that,
if
removed to a particular country, his life or freedom would be
threatened due to one or more factors, such as race, religion,
or political opinion.
Negusie v. Holder, 555 U.S. 511, 541
(2009) (citing 8 U.S.C. § 1231(b)(3)(A)).
The obligations of
the United States pursuant to the CAT apply if the alien shows
that
“it
is
more
likely
than
not
that
he
or
she
would
be
tortured if removed to the proposed country of removal.”
8
C.F.R. § 1208.16(c)(2).
Adjustment of status is another distinct form of relief,
and does not focus on the effects of removal.
3
Rather, such
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relief
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permits
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the
Attorney
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General,
in
his
discretion,
to
adjust a deportable alien’s status to that of “lawful permanent
resident.”
certain
8 U.S.C. § 1255. 2
grounds
for
an
Section 1255 of Title 8 identifies
adjustment
of
status,
including
situations where an alien has a spouse or parent — i.e., a
“qualified relative” — who is lawfully present in this country;
in that circumstance, the qualified relative may petition for an
immigration
visa
on
the
alien’s
behalf.
Section 1255(i)(1)
provides that an alien who has entered the United States without
inspection is eligible for adjustment of status if a qualifying
relative petitioned for the alien to receive an immigration visa
prior to April 30, 2001.
If the alien meets those requirements
and applies for adjustment of status, the Attorney General may
adjust the alien’s status “to that of an alien lawfully admitted
for permanent residence” if the immigration visa is immediately
available and if the alien is otherwise admissible to the United
States.
Id. § 1255(i)(2). 3
2
The functions of the Attorney General with respect to
immigration issues are largely handled within the Executive
Office for Immigration Review (the “EOIR”), an agency of the
Department of Justice. See 6 U.S.C. § 521; 8 U.S.C. § 1103(g).
The EOIR encompasses the BIA and a host of immigration judges.
See 8 C.F.R. §§ 1003.1, 1003.9.
3
The INA imposes limitations on the number of immigration
visas available each year. See 8 U.S.C. § 1151. Additionally,
visas are allocated according to preference categories set forth
in 8 U.S.C. § 1153. As a result, a delay occurs between a visa
(Continued)
4
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An
alien
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may
be
deemed
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—
“inadmissible”
and
therefore
ineligible for an adjustment of status by the Attorney General —
for a variety of reasons.
Section 1182(a) of Title 8 identifies
ten situations where an alien may be inadmissible, relating to
issues such as public health, criminal background, and national
security.
Pursuant
to
§ 1182(a)(4),
an
alien
who
seeks
an
adjustment of status is inadmissible if, at the time he applies
for the adjustment, he is likely to become a “public charge.”
In order to show that the alien will not become a public charge,
the qualified relative must submit an affidavit “demonstrat[ing]
the
means
to
maintain
the
intending
immigrant
at
an
annual
income of at least 125 percent of the Federal poverty line.”
8
C.F.R. § 213a.2(c)(2).
An alien who seeks to procure an immigration benefit by
“fraud or willfully misrepresenting a material fact” is also
inadmissible.
8
U.S.C
§ 1182(a)(6)(C)(i).
That
bar
to
admissibility may be waived, however, in the discretion of the
Attorney
General,
§ 1182(i).
pursuant
to
§ 212(i)
of
the
INA,
8
U.S.C.
Such a “§ 212(i) waiver” requires a showing by the
alien that his deportation would cause sufficient hardship to a
petition being granted and that visa becoming currently
available, as required for an adjustment of status.
See id.
§ 1255(a)(3).
5
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qualifying relative, including a spouse or a parent.
A § 212(i)
waiver is available only to those aliens who have been found
inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i) for seeking
an immigration benefit by fraud or willful misrepresentation.
With
the
foregoing
principles
in
mind,
we
turn
to
the
background of Yang’s petition for review and our analysis of the
issues presented therein.
II.
A.
Yang
entered
the
United
States
without
inspection
January 20, 1993, and he has since remained here.
on
Yang resides
in Maryland, where he has worked at a Chinese restaurant.
He
has two children who are American citizens, born in Baltimore in
2002
and
2004.
Chao
Zheng
Yang
is
the
mother
children, and she is not an American citizen.
of
Yang’s
Zheng and Yang
have never married.
In
March
withholding
of
1993,
Yang
removal.
applied
The
to
the
Immigration
INS
and
for
asylum
and
Naturalization
Service (the “INS”) initiated removal proceedings against Yang
in
1996. 4
On
July
23,
1997,
4
Yang
was
ordered
deported
in
The INS was abolished in 2002, and its enforcement
functions were transferred to the Department of Homeland
Security.
See Homeland Security Act of 2002, Pub. L. No. 107–
(Continued)
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abstentia after failing to appear at a deportation hearing.
March
15,
2001,
Yang’s
mother,
Hui
Lin,
a
lawful
On
permanent
resident in the United States and qualified relative, petitioned
for an immigration visa on Yang’s behalf (the “visa petition”).
On November 16, 2002, Yang filed an application to alter his
status from “without inspection” to that of “permanent resident”
(the “adjustment application”), relying on the visa petition his
mother had filed in 2001.
The visa petition was approved by the
INS two years later, on March 5, 2004.
filed
a
relief
motion
was
to
granted
reopen
his
and
Yang’s
In the meantime, Yang
deportation
proceedings.
deportation
proceedings
Such
were
reopened by the INS on September 9, 2002.
Yang filed yet another application for relief on December
2, 2002, which he supplemented approximately four years later,
on
July
17,
2007
(collectively,
the
“asylum
application”).
Therein, Yang sought three types of relief — asylum, withholding
of removal, and protection under the CAT.
Yang identified three
supporting grounds for the asylum application.
First, he relied
on his past political activities in China, asserting that, in
1989, “I was involved in the student[] movement and participated
296, § 441, 116 Stat. 2135, 2192.
For simplicity, we refer
herein to all the immigration enforcement authorities as the
“INS.”
7
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in the demonstration in Beijing[,] China with my classmates.”
J.A. 1663.
If he returned to China, Yang feared harm from the
Chinese government based on his earlier political participation.
Second, Yang asserted that he was associated with the Falun Gong
group,
which
Third,
Yang
had
been
raised
persecuted
concerns
by
about
the
Chinese
China’s
government.
one-child
policy,
given that he already had two children and might have more.
B.
On June 5, 2008, an immigration judge (the “IJ”) conducted
an
evidentiary
hearing
“Initial IJ Hearing”).
on
Yang’s
asylum
application
(the
Before evidence was received, the IJ
instructed Yang and his counsel to review the asylum application
for errors.
a
statement
Upon review, Yang made one correction, crossing out
that
movement in China.
he
had
been
arrested
during
the
student
Yang explained to the IJ that a “travel
service” had assisted with his immigration paperwork, because he
did not speak English.
See J.A. 1284-85.
Yang had described
his immigration claims to the travel service, and the service
had completed Yang’s asylum application forms.
Yang failed to
carefully review the paperwork before he signed it, but believed
the asylum application forms properly reported the information
he had provided to the travel service.
As Yang began to testify in the Initial IJ Hearing, the IJ
inquired about papers Yang carried to the witness stand.
8
Yang
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explained that the papers contained notes about his testimony,
and the IJ instructed that he hand them to his attorney.
then testified as follows:
Yang
He was a college student during
China’s student democracy movement in 1989.
Yang took part in a
“demonstration parade” in Fuzhou, shouting slogans in support of
the student protests then taking place in Tiananmen Square in
Beijing.
came
to
Following those events, Chinese government officials
Yang’s
home
on
several
occasions
to
investigate
his
involvement with the democracy movement.
Yang further advised the IJ that his children lived with
If deported, he would be compelled to take the children —
him.
both American citizens — to China because no one in the United
States would care for them.
Lin watched Yang’s children while
he was at work, and Zheng was “nowhere to be found.”
J.A. 1273.
Indeed, Yang had not known her whereabouts for two years.
Finally, Yang testified that he “had contact with” Falun
Gong, but was not a member of that group.
J.A. 1296.
Yang
clarified that Falun Gong was not relied on as a basis for his
asylum claim, and that references to the group in his asylum
application had been mistakenly included.
Lin
(Yang’s
mother),
during
Yang’s
who
was
sequestered
testimony,
room
stand.
Before Lin answered questions, the IJ twice instructed
9
took
the
the
hearing
Yang not to communicate with her.
then
outside
witness
Lin then testified that she
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lived with her daughter in New York.
Immediately thereafter,
Lin said that she lived in Maryland, but had previously lived in
New
York.
More
specifically,
Lin
stated
that
she
lived
Yang’s Maryland home with Yang, his children, and Zheng.
in
In
addition to indicating that Zheng lived in Yang’s home, Lin said
that Zheng and Yang worked at the same restaurant.
if
she
had
any
idea
why
Yang
had
testified
When asked
that
Zheng
was
“nowhere to be found,” Lin replied, “Right now, she is nowhere
to be found.”
ago,”
but
J.A. 1309.
did
not
Lin said that Zheng had left “a while
otherwise
regarding Zheng’s whereabouts.
seek
to
explain
the
conflicts
Id.
A Mandarin interpreter provided English translations during
Yang’s
and
Lin’s
interpreter
testimony.
interrupted
communicating with Lin.
While
repeatedly
Lin
was
because
testifying,
of
the
difficulties
See J.A. 1305, 1307, 1312-14, 1316-21.
The interpreter explained to the IJ that he was having trouble
with Lin’s testimony because “[Lin] does not speak Mandarin.”
Id. at 1316.
Fuzhou
—
The interpreter also suggested that Lin required a
rather
than
the
Mandarin
5
—
interpreter. 5
Yang’s
Fuzhou and Mandarin are separate languages used in China.
Fuzhou is widely used in part of the Fujian province, the area
surrounding Fuzhou, the provincial capital.
See James Blatt,
Recent Trends in the Smuggling of Chinese into the United
States, 15 Williamette J. Int’l L. & Disp. Resol. 227, 235-36
(2007).
Fujian is located in southeast China, across from
(Continued)
10
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lawyer,
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however,
appropriate.
maintained
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that
a
Mandarin
interpreter
was
In light of that conflict, the IJ questioned the
interpreter
about
the
accuracy
interpreter
advised
that
testimony,
except
where
he
had
he
of
his
translations.
accurately
indicated
translated
that
it
The
Lin’s
needed
clarification. 6
C.
On September 4, 2008, the IJ disposed of the adjustment
application and the asylum application by oral decision (the
“Initial IJ Decision”). 7
The IJ first decided that Yang was not
eligible for an adjustment of status because his visa petition
was not currently available.
The IJ then rendered an adverse
credibility determination (the “credibility ruling”), explaining
that “this is a case in which [Yang] cannot rely on testimony
Taiwan. Id. at 235. Mandarin, the official language of China,
is used in most of northern China. Id. at 236 n.37.
6
Yang was represented by the same lawyer during all
proceedings before the IJ.
The record readily reveals issues
concerning whether the lawyer provided effective assistance to
Yang, including the lawyer’s apparent failure to insist on an
appropriate
interpreter.
The
BIA
has
recognized
that
“[i]neffective assistance of counsel in a deportation proceeding
is a denial of due process.” Matter of Lozada, 19 I. & N. Dec.
637, 638 (B.I.A. 1988).
Because Yang did not pursue an
effective assistance claim to the BIA, however, we lack
jurisdiction to consider any such issues.
See 8 U.S.C.
§ 1252(d)(1); Kporlor v. Holder, 597 F.3d 222, 226 (4th Cir.
2010).
7
The Initial IJ Decision is found at J.A. 1102-23.
11
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alone” to establish his eligibility for asylum, and that “[h]e
needs corroborative information to support his claim.”
IJ Decision 17.
Initial
In support of the credibility ruling, the IJ
found that Yang’s demeanor undermined his credibility, observing
that
Yang
“took
notes
with
him
to
the
witness
stand,
and
appeared to be referring to those notes during the course of his
testimony.”
Id. at 15.
The IJ further noted that Yang “twice
signaled his witness, once before she took the witness stand,
and once while she was testifying.”
Id.
According to the IJ,
after Lin testified that Zheng was living in Yang’s home, Yang
had signaled to Lin.
to be found.” 8
the
asylum
Lin then claimed that Zheng was “nowhere
The IJ identified other inconsistencies between
application
and
the
evidence
at
the
Initial
IJ
Hearing, related to whether Yang went to Beijing to participate
in the Tiananmen Square protests; whether he actively practiced
Falun Gong; the whereabouts of Zheng, and, consequently, whether
8
Although the Initial IJ Decision noted that Yang twice
signaled to Lin during the Initial IJ Hearing — including once
while she was testifying about Zheng’s whereabouts — there is
nothing in the hearing transcript that reflects any such
signaling. Moreover, with respect to the IJ’s observation that
Yang appeared to refer to notes “during the course of his
testimony,” see Initial IJ Decision 15, the transcript shows
that Yang gave the papers to his lawyer very early in his
testimony, after he answered four questions about his address,
when he left China, when he arrived in the United States, and
his reason for leaving China, see J.A. 1266.
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Yang’s children would return to China with him; and where Lin
currently lived.
After announcing the credibility ruling, the IJ determined
that Yang had failed to submit sufficient corroborating evidence
to establish his asylum claim.
request
—
which
carried
a
withholding of deportation.
concluded
that
Yang
had
The IJ similarly denied Yang’s
higher
burden
of
proof
—
for
Addressing the CAT claim, the IJ
not
presented
credible
evidence
regarding his past political activities or the likelihood that
he would face torture in China.
Yang promptly appealed the Initial IJ Decision to the BIA,
contending that the IJ erred in denying his asylum application.
While that appeal was pending, the visa petition filed on Yang’s
behalf
by
Lin,
as
his
qualifying
relative,
became
current,
rendering Yang eligible for an adjustment of status as of July
2009.
Consequently, on February 1, 2010, the BIA remanded the
proceeding to the IJ with instructions that Yang be afforded the
opportunity
to
consideration
seek
of
adjustment
Yang’s
of
appeal
status.
of
BIA
deferred
Initial
the
The
IJ
Decision
insofar as it related to the denial of his asylum application.
D.
Following the BIA’s remand, a master calendar hearing was
convened by the IJ on April 19, 2010.
ruling
that
had
thwarted
Yang’s
13
Noting the credibility
asylum
application,
the
IJ
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“strongly
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encourage[d]”
Yang
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to
pursue
a
§ 212(i)
connection with his adjustment application.
also
8
U.S.C.
§ 1182(a)(6)(C)(i)
waiver
in
See J.A. 530; see
(rendering
inadmissible
an
alien who seeks to procure an immigration benefit by “fraud or
willfully
misrepresenting
a
material
fact”);
id.
§ 1182(i)
(authorizing Attorney General to grant § 212(i) waiver to alien
deemed inadmissible under § 1182(a)(6)(C)(i)).
Thereafter, on
July 14, 2010, Yang filed his application for a § 212(i) waiver
with the Attorney General (the “waiver application”).
On March 17, 2011, the IJ conducted a merits hearing on
Yang’s
adjustment
Hearing”).
and
waiver
applications
(the
“Second
Yang, the sole witness, testified as follows:
IJ
His
mother, Lin, was then sixty-six years old and unable to hold a
steady job.
Yang’s children and Lin depended entirely on Yang
financially.
occasionally.
Zheng
was
See J.A. 557.
“gone,”
although
she
visited
Zheng had visited Yang and the
children in February 2011 during the Chinese New Year.
Yang had
spoken with Zheng only once — by phone — since that visit,
concerning the children’s health and education.
They had not
discussed what would happen to their children if Yang had to
return to China.
Yang confirmed that he and Lin cared for the
children, and asserted that, if Yang were deported, Lin would be
forced to obtain government assistance.
14
The children would then
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struggle to survive because no one would be available to care
for them.
After
hearing
Yang’s
evidence,
the
deliberate before rendering her oral ruling.
IJ
recessed
to
When the Second IJ
Hearing reconvened on March 17, 2011, Yang and his counsel were
not present.
Nevertheless, the IJ proceeded to issue her oral
decision, denying Yang’s adjustment and waiver applications (the
“Second IJ Decision”). 9
The Second IJ Decision denied Yang’s adjustment application
on three bases.
application
First, the IJ ruled that Yang had abandoned the
because
he
failed
to
maintain
current
biometric
data, including fingerprinting, and, alternatively, because Yang
was
not
present
§ 1003.47.
for
the
IJ’s
oral
decision.
See
8
C.F.R.
Second, the IJ ruled that Yang was inadmissible as a
public charge because his income fell below the poverty line.
See 8 U.S.C. § 1182(a)(4).
Third, the IJ determined that Yang
was inadmissible on a separate and distinct ground; that is, he
had engaged in fraud and willful misrepresentation to procure an
immigration benefit, and was thus ineligible for adjustment of
status
pursuant
misrepresentation
to
8
U.S.C.
ruling”).
§ 1182(a)(6)(C)(i)
The
IJ
justified
(the
the
“willful
willful
misrepresentation ruling by invoking the Initial IJ Decision’s
9
The Second IJ Decision is found at J.A. 412-29.
15
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credibility ruling.
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The IJ also noted that, following the BIA’s
remand order of February 2010, Yang could have explained the
inconsistencies
that
led
to
the
credibility
ruling,
but
had
declined that opportunity.
Having
found
Yang
inadmissible
under
8
U.S.C.
§ 1182(a)(6)(C)(i), the IJ proceeded to determine that Yang did
not warrant a § 212(i) waiver of that inadmissibility ruling.
First, the IJ exercised discretion to deny the § 212(i) waiver
based
on
the
willful
misrepresentation
ruling.
The
IJ
then
alternatively concluded that Yang failed to satisfy the legal
requirements for a § 212(i) waiver, in that he had not shown
that Lin would suffer an extreme hardship.
As a result, the
Second IJ Decision ordered Yang removed to China.
E.
On April 6, 2011, Yang appealed the Second IJ Decision to
the BIA, where his appeal from the Initial IJ Decision remained
pending.
Yang also moved the BIA to remand for a new IJ hearing
on his adjustment and waiver applications.
In support of the
remand request, Yang submitted Lin’s medical records, asserting
that
her
health
problems,
as
demonstrated
by
those
records,
created a sufficient hardship to Lin to satisfy the requirements
for a § 212(i) waiver.
Alternatively, Yang contended that he
did not need any such waiver because he had not engaged in fraud
or willful misrepresentation in seeking an immigration benefit.
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Further, Yang submitted his 2011 tax returns as new evidence
that showed increased income and thus that he was no longer
inadmissible as a public charge.
Finally, Yang maintained that
he had not abandoned his adjustment application.
The BIA Decision rejected Yang’s appeals of the Initial IJ
Decision and the Second IJ Decision, and also denied his motion
to remand.
First, the BIA affirmed the Initial IJ Decision with
respect to Yang’s asylum application.
the
credibility
ruling
was
not
The BIA explained that
clearly
erroneous
because
of
Yang’s demeanor during the Initial IJ Hearing, as well as “major
inconsistencies” in his asylum application and testimony.
Decision 2.
BIA
Agreeing that Yang “failed to meet the burden of
proof for asylum,” the BIA ruled that Yang could not “satisfy
the
more
stringent
clear
withholding of removal.”
probability
Id. at 5.
standard
required
for
Further, the BIA affirmed
the Initial IJ’s Decision that Yang had failed to show that he
would more likely than not be subject to torture if returned to
China.
Turning
affirmed
the
applications.
to
the
IJ’s
The
Second
denial
BIA
IJ
of
Decision,
Yang’s
agreed
that
the
BIA
adjustment
Yang
had
and
Decision
waiver
abandoned
the
adjustment application by failing to maintain current biometric
17
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data. 10
With
Filed: 10/29/2014
respect
misrepresentation
to
ruling
Pg: 18 of 30
the
that
merits
made
of
Yang
the
IJ’s
willful
inadmissible
under
8
U.S.C. § 1182(a)(6)(C)(i), the BIA emphasized that the IJ had
previously
“rendered
a
detailed
adverse
credibility
which the BIA did not deem clearly erroneous.
finding,”
BIA Decision 2.
Although the IJ premised the willful misrepresentation ruling on
her
determination
willful
that
Yang
misrepresentation,
misrepresentation
in
had
engaged
in
the
BIA
focused
affirming
the
IJ. 11
both
only
fraud
on
Finally,
and
willful
the
BIA
affirmed the Second IJ Decision’s conclusion that Yang did not
qualify for a § 212(i) waiver of inadmissibility because he had
not shown “that his removal would result in extreme hardship to
his lawful permanent resident mother.”
Id. at 3.
The BIA Decision also denied Yang’s motion to remand to
consider
additional
applications.
The
evidence
BIA
on
his
considered
adjustment
the
evidence
and
that
waiver
Yang
submitted as new and previously unavailable, including his 2011
10
The Second IJ Decision concluded that Yang abandoned his
adjustment application on two separate grounds:
failing to
maintain current biometric data and failing to appear for the
continuation of the Second IJ Hearing. The BIA Decision did not
address the IJ’s second basis for the abandonment ruling.
11
As we explain in greater detail infra, under 8 U.S.C.
§ 1182(a)(6)(C)(i), fraud requires that an alien intended to
deceive, while willful misrepresentation requires only that the
alien deliberately and voluntarily misrepresented a material
fact.
18
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tax returns and the medical records of Lin.
The BIA deemed the
tax returns — but not Lin’s medical records — to be new and
previously
unavailable,
Nevertheless,
inadmissible
the
due
BIA
to
the
and
thus
proper
concluded
that,
willful
for
consideration.
because
Yang
misrepresentation
ruling
was
in
addition to insufficient income, the 2011 tax returns did not
warrant
a
remand.
Therefore,
the
BIA
denied
Yang’s
remand
motion.
Yang has petitioned for our review of the BIA Decision, and
we possess jurisdiction pursuant to 8 U.S.C. § 1252.
III.
Where, as here, the BIA has adopted an IJ decision and
issued its own decision, we review both rulings.
See Jian Tao
Lin v. Holder, 611 F.3d 228, 235 (4th Cir. 2010).
The BIA’s
determination that “an alien is not eligible for admission to
the United States is conclusive unless manifestly contrary to
law.”
novo.
8 U.S.C. § 1252(b)(4)(C).
We review legal issues de
See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011).
We review an IJ’s findings of fact for substantial evidence,
accepting
such
findings
adjudicator
would
have
conclusion.
as
been
conclusive
compelled
See id.
19
unless
to
reach
a
reasonable
a
different
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IV.
In challenging the BIA Decision by his petition for review,
Yang
focuses
adjustment
on
and
the
Second
waiver
IJ
Decision’s
applications.
denial
of
Specifically,
his
Yang
maintains that he should not have been found inadmissible under
8
U.S.C.
§ 1182(a)(6)(C)(i),
misrepresentation
ruling
was
because
legally
and
the
IJ’s
factually
willful
improper.
Yang alternatively contends that Lin’s medical records are new
evidence
that
application.
should
be
considered
in
support
of
his
waiver
Finally, Yang argues that, because the INS failed
to provide notice of its requirement for updated biometric data,
he did not abandon his adjustment application by flouting that
requirement.
For those reasons, Yang urges that this matter be
remanded.
A.
We begin with Yang’s contention that the BIA Decision erred
in affirming the Second IJ Decision’s determination that he is
inadmissible
under
misrepresentations
§ 1182(a)(6)(C)(i)
to
procure
an
for
having
immigration
made
willful
benefit.
That
willful misrepresentation ruling was predicated on the Initial
IJ Decision’s credibility ruling.
As explained below, the IJ
thereby utilized an erroneous legal standard in rendering the
willful
misrepresentation
ruling.
Furthermore,
applying
the
proper legal principles, the willful misrepresentation ruling is
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not supported by substantial evidence.
We now turn to those
points in further detail.
1.
An adverse credibility ruling impacts the evidence an alien
must produce in order to meet his burden in proving eligibility
for asylum.
2011).
See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.
The INA provides that an alien may establish an asylum
claim through testimony alone — without corroborating evidence
—
if
the
trier
of
fact
credible and persuasive.
trier
of
fact
may
finds
the
alien’s
testimony
to
See 8 U.S.C. § 1158(b)(1)(B)(ii).
predicate
a
credibility
be
The
determination
on
factors such as “the demeanor, candor, or responsiveness” of the
alien and his witnesses, the consistency between oral testimony
and
written
evidence.
statements,
Id.
and
the
internal
§ 1158(b)(1)(B)(iii).
consistency
Under
of
applicable
the
law,
“[m]inor omissions, inconsistencies, and contradictions that do
not
go
to
necessarily
the
heart
support
of
an
Djadjou, 662 F.3d at 274.
the
applicant’s
adverse
claims . . . do
credibility
not
determination.”
As a result, “if discrepancies cannot
be viewed as attempts by the applicant to enhance his claims of
persecution, they have no bearing on credibility.”
21
Ceraj v.
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Mukasey, 511 F.3d 583, 591 (6th Cir. 2007) (internal quotation
marks omitted). 12
Meanwhile,
a
willful
misrepresentation
ruling
impacts
whether an alien is admissible to the United States.
The INA
provides that an alien is inadmissible — and thus ineligible for
adjustment
of
misrepresenting
immigration
status
a
—
if
material
benefit.
8
he
fact,
U.S.C.
“by
fraud
seeks
or
to
willfully
procure”
§ 1182(a)(6)(C)(i).
an
The
government bears the burden of showing, by clear and convincing
evidence,
that
the
alien
fraudulently
or
willfully
misrepresented or concealed some material fact, and that such
fraud
or
misrepresentation
was
used
documentation, or entry into this country.
to
seek
a
visa,
See Ortiz-Bouchet v.
U.S. Attorney General, 714 F.3d 1353, 1356 (11th Cir. 2013);
Atunnise v. Mukasey, 523 F.3d 830, 835 (7th Cir. 2008); Monter
v. Gonzalez, 430 F.3d 546, 553-55 (2d Cir. 2005); Mwongera v.
INS, 187 F.3d 323, 330 (3d Cir. 1999); Forbes v. INS, 48 F.3d
439, 441-43 (9th Cir. 1995).
Courts interpret fraud and willful
12
The legal standard applicable in these proceedings was
modified by the REAL ID Act of 2005, which now authorizes an IJ
to base credibility determinations on any inconsistency “without
regard to whether [it] goes to the heart of the applicant’s
claim.”
8 U.S.C. § 1158(b)(1)(B)(iii).
The REAL ID Act does
not apply here, however, because Yang’s asylum application was
filed prior to the effective date thereof.
See Marynenka v.
Holder, 592 F.3d 594, 600 n.* (4th Cir. 2010).
22
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misrepresentation
as
inadmissibility.
Fraud
Pg: 23 of 30
constituting
requires
willful
two
that
separate
the
alien
for
intended
while
intent.
See Parlak v. Holder, 578 F.3d 457, 463 (6th Cir.
2009).
Rather,
misrepresentation
deliberate and voluntary.
451
n.3
(B.I.A.
is
requires
willful
no
to
deceive,
a
misrepresentation
bases
if
it
such
was
See In re D-R-, 25 I. & N. Dec. 445,
2011).
Knowledge
of
the
falsity
representation generally satisfies that standard.
of
the
See Mwongera,
187 F.3d at 330.
Adverse credibility and willful misrepresentation also are
distinct legal concepts, requiring separate analyses.
See Singh
v. Gonzales, 413 F.3d 156, 161 (1st Cir. 2005) (“[A] negative
credibility finding alone is not the equivalent of a finding of
willful misrepresentation and the one does not necessarily lead
to
the
other.”).
properly
be
An
rendered
misrepresentation,
but
adverse
credibility
without
a
any
determination
deliberate
determination
that
and
an
can
voluntary
alien
made
a
willful misrepresentation requires that those specific elements
be
shown.
Thus,
the
courts
of
appeals
have
consistently
recognized that “inconsistencies between a petitioner’s asylum
application
and
inconsistencies
hearing
hearing
between
testimony,
misrepresentations.”
a
testimony,
petitioner’s
may
not
as
well
asylum
equate
as
internal
application
to
and
willful
Falaja v. Gonzales, 418 F.3d 889, 898 (8th
23
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Cir. 2005); see also Oforji v. Ashcroft, 354 F.3d 609, 612 (7th
Cir. 2003).
Here, however, the Second IJ Decision based the willful
misrepresentation
applying
an
ruling
erroneous
solely
legal
on
the
credibility
standard.
The
IJ
ruling,
failed
to
articulate any of the requirements that must be shown by clear
and
convincing
evidence
in
order
to
apply
8
U.S.C.
§ 1182(a)(6)(C)(i), including the intent to deceive required for
fraud,
or
willful
the
deliberateness
misrepresentation.
and
voluntariness
Rather,
after
necessary
recounting
for
the
inconsistencies on which the credibility ruling was based, the
IJ simply stated:
[T]he Court perceives that these unexplained material
inconsistencies are a reflection of [Yang’s] efforts
at fraud, and that they are reflections of willful
misrepresentations of fact that were offered up in an
effort to gain the benefits of asylum and withholding.
Second
IJ
Decision
credibility
with
4-5.
fraud
and
In
sum,
willful
the
IJ
conflated
adverse
misrepresentation,
thereby
committing legal error.
The BIA Decision did acknowledge relevant law, recognizing
— without discussing fraud — that a willful misrepresentation
can
be
shown
“by
a
finding
deliberate and voluntary.”
marks omitted).
standard
for
that
the
misrepresentation
was
BIA Decision 3 (internal quotation
But while the BIA recounted the correct legal
willful
misrepresentation,
24
it
did
not
actually
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apply
Filed: 10/29/2014
that
standard
misrepresentation
in
ruling.
Pg: 25 of 30
affirming
The
BIA
the
reasoned
IJ’s
willful
that
the
IJ
determined that Yang’s “unexplained inconsistencies constituted
willful misrepresentations to gain the immigration benefits of
asylum and withholding or removal, and we discern no clear error
in
this
finding.”
misrepresentation
adverse
ruling
credibility
repeated
the
Id.
IJ’s
Given
was
with
that
rendered
by
willful
legal
error
the
IJ’s
willful
erroneously
equating
misrepresentation,
in
affirming
the
the
Second
BIA
IJ
Decision.
2.
The BIA Decision further erred in affirming the Second IJ
Decision because, under the proper legal standard, the record
lacks
substantial
evidence
misrepresentation ruling.
to
support
the
willful
In making that ruling, the IJ simply
relied on her earlier credibility ruling, pronouncing that the
inconsistencies
coupled
fraud
fact.”
with
and
in
his
. . .
Yang’s
asylum
demeanor,
were
reflections
of
Second IJ Decision 4-5.
evidence established
the
application
“a
reflection
willful
and
of
evidence,
efforts
at
misrepresentations
of
The IJ failed to specify what
“fraudulent”
or
“willful”
nature
of
Yang’s inconsistencies.
To be sure, a comparison of Yang’s asylum application and
his Initial IJ Hearing testimony shows contradictory statements
25
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about whether Yang actually went to Tiananmen Square and whether
he was relying on Falun Gong in seeking relief from removal.
The record does not reveal evidence, however, that Yang made
knowing and deliberate misrepresentations to gain an immigration
benefit.
Yang’s testimony was not only internally consistent,
but to the extent it contradicted his asylum application, the
testimony weakened his position.
That is, Yang testified that
he did not travel to Tiananmen Square and that he was not basing
his
application
contradicted
on
Falun
statements
made
Gong.
in
While
the
asylum
that
testimony
application,
the
testimony would seem to completely undermine the notion that
Yang
attempted
to
immigration
benefit.
difficulty
use
completing
misrepresentations
Moreover,
and
Yang
reviewing
because of the language barrier.
to
explained
the
procure
that
he
application
an
had
forms
Accordingly, the record does
not contain clear and convincing evidence that Yang attempted to
procure an immigration benefit by deliberately and voluntarily
making
false
statements
regarding
Tiananmen
Square
and
Falun
Gong.
As for the two other inconsistencies upon which the willful
misrepresentation ruling relied — the current residence of Lin
and the whereabouts of Zheng
ruling.
— those also fail to support the
Even assuming that Yang deliberately and voluntarily
made misrepresentations about those points, it is not clear that
26
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either misrepresentation was material to the claims raised in
the asylum application.
The IJ made the conclusory remark that
those inconsistencies were “material” and “were offered up in an
effort to gain the benefit of asylum and withholding.”
IJ Decision 4-5.
Second
To be material, however, a misrepresentation
must be of the sort that would affect the ultimate immigration
decision.
2013).
may
See Bazzi v. Holder, 746 F.3d 640, 645-46 (6th Cir.
Although the residence of Lin and whereabouts of Zheng
have
been
relevant
to
the
question
of
whether
Yang’s
children would accompany him to China, that was not a question
on
which
Yang’s
asylum
and
withholding
claims
pivoted.
To
prevail on those claims, Yang needed to show that the children’s
presence in China would subject him to enforcement of the onechild policy.
much, denying
Indeed, the Initial IJ Decision recognized as
the
asylum
claim
because
“the
evidence
in
the
record does not demonstrate that the Chinese government would
require
forced
sterilization
of
[Yang]
as
a
penalty
returning with two children born in the United States.”
for
Initial
IJ Decision 19 (relying on BIA’s precedent of In re J-W-S-, 24
I. & N. Dec. 185 (B.I.A. 2007), as being “on all four squares”).
Accordingly, there is not clear and convincing evidence that the
inconsistencies
about
were
to
material
Lin’s
Yang’s
residence
asylum
and
Zheng’s
application,
as
whereabouts
would
necessary to justify the willful misrepresentation ruling.
27
be
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The
lack
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of
Pg: 28 of 30
substantial
ruling
misrepresentation
evidence
this
in
supporting
matter
is
the
willful
highlighted
by
reference to other proceedings where substantial evidence was
present that the petitioners deliberately and voluntarily made
false representations material to their claims.
the
Sixth
Circuit
affirmed
a
determination
misrepresentation where the alien:
For example,
of
willful
failed to disclose a prior
arrest and conviction in Turkey; provided a falsely translated
newspaper article that omitted information that the alien had
been tried for killing two soldiers; and reported that he had
been
sentenced
to
death,
while
failing
to
reveal
that
the
sentence had been reduced and his conviction was being appealed.
See Parlak, 578 F.3d at 465.
The Second Circuit concluded that
an alien who used a false surname and offered false information
so as to misrepresent her eligibility for a non-immigrant visa
had made willful misrepresentations.
F.3d 110, 117-18 (2d Cir. 2008).
that
an
alien
made
willful
See Emokah v. Mukasey, 523
And the First Circuit ruled
misrepresentations
when
he
represented that he had never been married and had no children,
both
of
which
were
patently
false
statements.
See
Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010).
Toribio-
The evidence
in our record offers considerably less support that Yang made
deliberate
and
voluntary
misrepresentations
immigration benefit.
28
to
procure
an
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We emphasize that a willful misrepresentation must be shown
by clear and convincing evidence in order to render an alien
inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
lacks
substantial
determination.
evidence
that
would
The record here
support
such
a
Accordingly, the Second IJ Decision erred in
determining that Yang is inadmissible under § 1182(a)(6)(C)(i),
and the BIA erred in affirming in that respect.
3.
Given
that
Yang
§ 1182(a)(6)(C)(i),
Yang’s
he
contention
consideration
is
has
that
of
new
not
inadmissible
no
the
need
BIA
evidence
for
should
in
a
under
§ 212(i)
have
support
8
U.S.C.
waiver.
remanded
of
his
for
waiver
application is therefore moot.
B.
Finally, we cannot agree with the IJ’s conclusion, which
the BIA affirmed, that Yang abandoned his adjustment application
by failing to submit updated biometric data, as required by 8
C.F.R. § 1003.47.
Indeed, the Attorney General conceded at oral
argument in this appeal that the record contained no evidence
that the INS complied with its legal obligation to “notify the
respondent
of
the
need
to
provide
biometrics
and
other
biographical information and [to] provide a biometrics notice
and instructions to the respondent for such procedures.”
29
See 8
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C.F.R. § 1003.47(d).
Pg: 30 of 30
We readily accept the Attorney General’s
candid concession in that respect.
V.
Pursuant to the foregoing, we grant Yang’s petition for
review and vacate the BIA Decision.
We remand to the BIA for
such further proceedings as may be appropriate.
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
30
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