by David Darr

On Wednesday, in Yang v. Holder, the Fourth Circuit granted the petitioner’s petition for review, vacated the decision of the Board of Immigration Appeals (BIA) that affirmed an immigration judge’s (IG) decision to deny the petitioner’s application for relief from deportation, and remanded the case further proceedings

Was There Evidence of Yang’s Misrepresentation and Did the INS Give Proper Notice?

The issues before the court were whether the IJ’s ruling of misrepresentation was legally and factually improper and whether the Immigration and Naturalization Service (INS) failed to provide proper notice to the petitioner of a change in procedure requiring him to provide updated biometric data.

Yang’s Experience with the Immigration Process

The petitioner, Xing Yang Yang, entered the United States without inspection in 1993 and has remained in the United States since. Yang is a Chinese national who lives with his mother, who is a lawful permanent resident, and has two children, both American citizens by birth, by Zheng, who is not an American Citizen and only sees Yang sporadically. In 1993, Yang applied for asylum and withholding of removal from the country. The INS initiated removal proceedings against Yang in 1996 and ordered his deportation in 1997 when he failed to show for a deportation hearing. Because of Yang’s mother’s status as a lawful permanent resident, she was able to petition for an immigration visa on Yang’s behalf in 2001 and this allowed Yang to file an application to adjust his status to “permanent resident.” The visa petition was approved by INS in 2004, but Yang still had to have a hearing on the matter.

Yang, alternatively, sought relief from deportation by filing an asylum application based on his political activities in China, which included being involved in a student protest and associating with an oppressed political group. Yang also feared that the Chinese government would persecute him because he would have to take his two children with him and China has a one-child policy. In 2008, the IJ at the initial hearing (Initial IJ Hearing) asked Yang to review his application for errors. Yang corrected his application by crossing out a statement that said that Yang had been arrested in China. Yang claimed the reason for this discrepancy in his application was due to an inadequate translator being available when a service filled out his application. Yang testified at the hearing that Zheng was nowhere to be found so he had to take care of his children with his mother’s help. He also testified that his application misstated his involvement with a political group in China. Yang’s mother’s testimony contained some inconsistencies as well when she stated that she lived in New York, but then immediately changed it to living with Yang and Zheng. When asked why Yang would say the Zheng is nowhere to be found, Yang’s mother agreed that Zheng is nowhere to be found now but that she stops by occasionally. The interpreter had difficulty communicating with Yang and his mother because the interpreter spoke Mandarin, while Yang and his mother spoke another dialect. However, Yang’s attorney said that the Mandarin interpreter was fine (the Fourth Circuit took issue with this, but noted that they did not have jurisdiction on this matter). The Initial IJ Hearing decided that Yang was not eligible for adjustment because his visa petition was not currently available and that Yang’s testimony lacked credibility and because of this he needed corroborating evidence of why asylum would be appropriate.

Yang appealed the decision from the Initial IJ Hearing to the BIA on the basis that the IJ ruled incorrectly. During this time, Yang’s visa petition became current, meaning that IJ’s ruling that Yang’s application was not currently available no longer applied. Due to this, the BIA remanded the case to the IJ in 2010 and left the asylum issue to be decided later. This led to a second hearing (Second IJ Hearing) in 2011. Yang put on similar evidence at this hearing, but was not present for the ruling, which denied Yang’s adjustment application and waiver application (this waiver application would allow the IJ to waive Yang’s inadmissibility due to substantial hardship). The IJ ruled that Yang abandoned his application because he failed to keep current biometric data with the INS; he is inadmissible because he fell below the poverty line; and Yang engaged in willful misrepresentation or fraud to procure immigration benefits, making him ineligible. The IJ decided that Yang did not qualify for a waiver because he did not show substantial hardship. Yang was ordered to be removed to China.

In 2011, Yang appealed the decision from the Second IJ Hearing to the BIA. Yang supplemented this appeal with his mother’s medical records (to show substantial hardship) and his 2011 tax returns, which showed he was no longer poverty and therefore was not inadmissible for that reason. The BIA affirmed the decision for asylum from the Initial IJ Hearing and also affirmed the denial of adjustment and waiver from the Second IJ Hearing. The BIA justified the second IJ’s decision that Yang engaged in fraud and willful misrepresentation by using the credibility finding from the initial IJ. The BIA also allowed Yang’s tax returns to be used, but not his mother’s medical records because they were not previously unavailable. Because of Yang’s tax returns, the BIA ruled that they defeated the inadmissibility claim, but it was not worthy of remand due to the fraud and willful misrepresentation. Yang petitioned for review directly from the Fourth Circuit.

Credibility Findings Have a Different Standard than Willful Misrepresentation

Adverse credibility findings cannot be used to predicate a finding of willful misrepresentation or fraud because the standards are different for each. Additionally the INS must provide proper notice when it changes its rules or else it cannot hold someone accountable for not following those rules.

The Fourth Circuit Looks at the Difference Between Credibility Findings and Willful Misrepresentation

An adverse credibility ruling is made by the IJ to impact the burden of proof required for asylum. If an adverse credibility ruling is issued by the IJ, as it was here, then it means that the petitioner needs some corroborating evidence beyond mere testimony to show a need for asylum. These adverse credibility rulings allow for minor omissions, but it is a question of fact for the IJ based on the demeanor of the petitioner and the consistency between written and oral statements. Willful misrepresentation makes an alien inadmissible to the United States. The government must show this by clear and convincing evidence and the misrepresentation must go to a material fact of immigration benefits. Willful misrepresentation requires knowledge of a false statement and making that statement. Fraud requires intent to deceive. An adverse credibility ruling, willful misrepresentation, and fraud all have different legal standards.

The IJ and BIA based their willful misrepresentation and fraud rulings solely on the adverse credibility ruling. Therefore, each lower proceeding used a legally erroneous standard in determining Yang’s inadmissibility and they each need to apply the correct standard on remand. Further, there is not enough evidence in this case to show willful misrepresentation because there is no evidence of Yang’s knowledge of making false statements. Yang’s difficulty with interpreters might have been the reason to blame for the discrepancies. The misrepresentations also, while relevant, did not rise to the level of material. Therefore, there was not enough evidence to show willful misrepresentation and the IJ and BIA applied the incorrect standard for willful misrepresentation.

A second issue on appeal was whether the INS gave Yang notice that he had to submit updated biometric data after a change in the law. The Attorney General conceded at oral argument that there is no evidence that the INS sent notice to Yang. The Fourth Circuit found this concession sufficient to show that Yang was not required to submit the biometric data.

The Fourth Circuit Remands the Case

For the reasons listed above, the Fourth Circuit granted Yang’s petition for review, vacated the BIA decision, and remanded the case to the BIA for further proceedings.

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