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
Amended: November 5, 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.
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 issues in this proceeding, however, touch on
multiple facets of immigration law. We 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 U.S.C. §§ 1182(a)(7)(A)(i), 1227(a)(1)(A). The INA and its
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
seek relief from deportation and lawfully remain in the United
States. Those options and alternatives include awards of asylum
and 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 race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§§ 1158(b)(1), 1101(a)(42). A “withholding of removal”
requires the alien to show a “clear probability” 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. Rather, such
3
relief permits the Attorney General, in his discretion, to
adjust a deportable alien’s status to that of “lawful permanent
resident.” 8 U.S.C. § 1255. 2 Section 1255 of Title 8 identifies
certain grounds for an 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
An alien may be deemed “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, pursuant to § 212(i) of the INA, 8 U.S.C.
§ 1182(i). 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
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 on
January 20, 1993, and he has since remained here. 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 of Yang’s
children, and she is not an American citizen. Zheng and Yang
have never married.
In March 1993, Yang applied to the INS for asylum and
withholding of removal. The Immigration and Naturalization
Service (the “INS”) initiated removal proceedings against Yang
in 1996. 4 On July 23, 1997, Yang was ordered deported in
4
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)
6
abstentia after failing to appear at a deportation hearing. On
March 15, 2001, Yang’s mother, Hui Lin, a lawful 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. In the meantime, Yang
filed a motion to reopen his deportation proceedings. Such
relief was granted and Yang’s deportation proceedings 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
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 had been persecuted by the Chinese government.
Third, Yang raised concerns about China’s 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 on Yang’s asylum application (the
“Initial IJ Hearing”). Before evidence was received, the IJ
instructed Yang and his counsel to review the asylum application
for errors. Upon review, Yang made one correction, crossing out
a statement that he had been arrested during the student
movement in China. 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. Yang
8
explained that the papers contained notes about his testimony,
and the IJ instructed that he hand them to his attorney. Yang
then testified as follows: 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. Following those events, Chinese government officials
came to Yang’s home on several occasions to investigate his
involvement with the democracy movement.
Yang further advised the IJ that his children lived with
him. If deported, he would be compelled to take the children —
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), who was sequestered outside the
hearing room during Yang’s testimony, then took the witness
stand. Before Lin answered questions, the IJ twice instructed
Yang not to communicate with her. Lin then testified that she
9
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 in
Yang’s Maryland home with Yang, his children, and Zheng. In
addition to indicating that Zheng lived in Yang’s home, Lin said
that Zheng and Yang worked at the same restaurant. When asked
if she had any idea why Yang had testified that Zheng was
“nowhere to be found,” Lin replied, “Right now, she is nowhere
to be found.” J.A. 1309. Lin said that Zheng had left “a while
ago,” but did not otherwise seek to explain the conflicts
regarding Zheng’s whereabouts. Id.
A Mandarin interpreter provided English translations during
Yang’s and Lin’s testimony. While Lin was testifying, the
interpreter interrupted repeatedly because of difficulties
communicating with Lin. 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. The interpreter also suggested that Lin required a
Fuzhou — rather than the Mandarin — interpreter. 5 Yang’s
5
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
lawyer, however, maintained that a Mandarin interpreter was
appropriate. In light of that conflict, the IJ questioned the
interpreter about the accuracy of his translations. The
interpreter advised that he had accurately translated Lin’s
testimony, except where he indicated that it 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
alone” to establish his eligibility for asylum, and that “[h]e
needs corroborative information to support his claim.” Initial
IJ Decision 17. 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. Lin then claimed that Zheng was “nowhere
to be found.” 8 The IJ identified other inconsistencies between
the asylum 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.
12
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. The IJ similarly denied Yang’s
request — which carried a higher burden of proof — for
withholding of deportation. Addressing the CAT claim, the IJ
concluded that Yang had 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 seek adjustment of status. The BIA deferred
consideration of Yang’s appeal of the Initial 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. Noting the credibility
ruling that had thwarted Yang’s asylum application, the IJ
13
“strongly encourage[d]” Yang to pursue a § 212(i) waiver in
connection with his adjustment application. See J.A. 530; see
also 8 U.S.C. § 1182(a)(6)(C)(i) (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 and waiver applications (the “Second IJ
Hearing”). Yang, the sole witness, testified as follows: 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. Zheng was “gone,” although she visited
occasionally. See J.A. 557. 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. The children would then
14
struggle to survive because no one would be available to care
for them.
After hearing Yang’s evidence, the IJ recessed to
deliberate before rendering her oral ruling. 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. First, the IJ ruled that Yang had abandoned the
application because he failed to maintain current biometric
data, including fingerprinting, and, alternatively, because Yang
was not present for the IJ’s oral decision. See 8 C.F.R.
§ 1003.47. 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 to 8 U.S.C. § 1182(a)(6)(C)(i) (the “willful
misrepresentation ruling”). The IJ justified the willful
misrepresentation ruling by invoking the Initial IJ Decision’s
9
The Second IJ Decision is found at J.A. 412-29.
15
credibility ruling. 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.
16
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 BIA explained that
the credibility ruling was not clearly erroneous because of
Yang’s demeanor during the Initial IJ Hearing, as well as “major
inconsistencies” in his asylum application and testimony. BIA
Decision 2. Agreeing that Yang “failed to meet the burden of
proof for asylum,” the BIA ruled that Yang could not “satisfy
the more stringent clear probability standard required for
withholding of removal.” Id. at 5. 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 to the Second IJ Decision, the BIA Decision
affirmed the IJ’s denial of Yang’s adjustment and waiver
applications. The BIA agreed that Yang had abandoned the
adjustment application by failing to maintain current biometric
17
data. 10 With respect to the merits of the IJ’s willful
misrepresentation ruling that made Yang inadmissible under 8
U.S.C. § 1182(a)(6)(C)(i), the BIA emphasized that the IJ had
previously “rendered a detailed adverse credibility finding,”
which the BIA did not deem clearly erroneous. BIA Decision 2.
Although the IJ premised the willful misrepresentation ruling on
her determination that Yang had engaged in both fraud and
willful misrepresentation, the BIA focused only on willful
misrepresentation in affirming the IJ. 11 Finally, 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 evidence on his adjustment and waiver
applications. The BIA considered the evidence that 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
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, and thus proper for consideration.
Nevertheless, the BIA concluded that, because Yang was
inadmissible due to the willful misrepresentation ruling 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.” 8 U.S.C. § 1252(b)(4)(C). We review legal issues de
novo. 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 as conclusive unless a reasonable
adjudicator would have been compelled to reach a different
conclusion. See id.
19
IV.
In challenging the BIA Decision by his petition for review,
Yang focuses on the Second IJ Decision’s denial of his
adjustment and waiver applications. Specifically, Yang
maintains that he should not have been found inadmissible under
8 U.S.C. § 1182(a)(6)(C)(i), because the IJ’s willful
misrepresentation ruling was legally and factually improper.
Yang alternatively contends that Lin’s medical records are new
evidence that should be considered in support of his waiver
application. 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 § 1182(a)(6)(C)(i) for having made willful
misrepresentations to procure an immigration 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
20
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. See Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir.
2011). The INA provides that an alien may establish an asylum
claim through testimony alone — without corroborating evidence
— if the trier of fact finds the alien’s testimony to be
credible and persuasive. See 8 U.S.C. § 1158(b)(1)(B)(ii). The
trier of fact may predicate a credibility determination on
factors such as “the demeanor, candor, or responsiveness” of the
alien and his witnesses, the consistency between oral testimony
and written statements, and the internal consistency of the
evidence. Id. § 1158(b)(1)(B)(iii). Under applicable law,
“[m]inor omissions, inconsistencies, and contradictions that do
not go to the heart of the applicant’s claims . . . do not
necessarily support an adverse credibility determination.”
Djadjou, 662 F.3d at 274. 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.” Ceraj v.
21
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 status — if he “by fraud or willfully
misrepresenting a material fact, seeks to procure” an
immigration benefit. 8 U.S.C. § 1182(a)(6)(C)(i). 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 to seek a visa,
documentation, or entry into this country. 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
misrepresentation as constituting two separate bases for
inadmissibility. Fraud requires that the alien intended to
deceive, while willful misrepresentation requires no such
intent. See Parlak v. Holder, 578 F.3d 457, 463 (6th Cir.
2009). Rather, a misrepresentation is willful if it was
deliberate and voluntary. See In re D-R-, 25 I. & N. Dec. 445,
451 n.3 (B.I.A. 2011). Knowledge of the falsity of the
representation generally satisfies that standard. 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.”). An adverse credibility determination can
properly be rendered without any deliberate and voluntary
misrepresentation, but a determination that an 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 hearing testimony, as well as internal
inconsistencies between a petitioner’s asylum application and
hearing testimony, may not equate to willful
misrepresentations.” Falaja v. Gonzales, 418 F.3d 889, 898 (8th
23
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 ruling solely on the credibility ruling,
applying an erroneous legal standard. The IJ 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 the deliberateness and voluntariness necessary for
willful misrepresentation. Rather, after recounting 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 4-5. In sum, the IJ conflated adverse
credibility with fraud and willful 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 that the misrepresentation was
deliberate and voluntary.” BIA Decision 3 (internal quotation
marks omitted). But while the BIA recounted the correct legal
standard for willful misrepresentation, it did not actually
24
apply that standard in affirming the IJ’s willful
misrepresentation ruling. The BIA reasoned 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.” Id. Given that the IJ’s willful
misrepresentation ruling was rendered by erroneously equating
adverse credibility with willful misrepresentation, the BIA
repeated the IJ’s legal error in affirming the Second 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 to support the willful
misrepresentation ruling. In making that ruling, the IJ simply
relied on her earlier credibility ruling, pronouncing that the
inconsistencies in Yang’s asylum application and evidence,
coupled with his demeanor, were “a reflection of efforts at
fraud and . . . reflections of willful misrepresentations of
fact.” Second IJ Decision 4-5. The IJ failed to specify what
evidence established the “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
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 on Falun Gong. While that testimony
contradicted statements made in the asylum application, the
testimony would seem to completely undermine the notion that
Yang attempted to use misrepresentations to procure an
immigration benefit. Moreover, Yang explained that he had
difficulty completing and reviewing the application forms
because of the language barrier. 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 — those also fail to support the
ruling. Even assuming that Yang deliberately and voluntarily
made misrepresentations about those points, it is not clear that
26
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.” Second
IJ Decision 4-5. To be material, however, a misrepresentation
must be of the sort that would affect the ultimate immigration
decision. See Bazzi v. Holder, 746 F.3d 640, 645-46 (6th Cir.
2013). Although the residence of Lin and whereabouts of Zheng
may 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 one-
child policy. Indeed, the Initial IJ Decision recognized as
much, denying 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 for
returning with two children born in the United States.” 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 Lin’s residence and Zheng’s whereabouts
were material to Yang’s asylum application, as would be
necessary to justify the willful misrepresentation ruling.
27
The lack of substantial evidence supporting the willful
misrepresentation ruling in this matter is highlighted by
reference to other proceedings where substantial evidence was
present that the petitioners deliberately and voluntarily made
false representations material to their claims. For example,
the Sixth Circuit affirmed a determination of willful
misrepresentation where the alien: 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. See Emokah v. Mukasey, 523
F.3d 110, 117-18 (2d Cir. 2008). And the First Circuit ruled
that an alien made willful misrepresentations when he
represented that he had never been married and had no children,
both of which were patently false statements. See Toribio-
Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010). The evidence
in our record offers considerably less support that Yang made
deliberate and voluntary misrepresentations to procure an
immigration benefit.
28
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). The record here
lacks substantial evidence that would support such a
determination. 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 is not inadmissible under 8 U.S.C.
§ 1182(a)(6)(C)(i), he has no need for a § 212(i) waiver.
Yang’s contention that the BIA should have remanded for
consideration of new evidence in support of his 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.” See 8
29
C.F.R. § 1003.47(d). 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
Xing Yang v. Eric Holder, Jr.
Combined Opinion