By: Rolf Garcia-Gallont
This week, in Xing Yang Yang v. Holder, the Fourth Circuit vacated a Board of Immigration Appeals (“BIA”) decision that erroneously upheld an inadmissibility decision based on an adverse credibility ruling.
Xing Yang Yang, a native of China, entered the United States without inspection in January, 1993. In March of the same year, Yang applied to the Immigration and Naturalization Service (“INS”) for asylum and withholding of removal, but in 1997 he was ordered deported in absentia. In March 2001, Yang’s mother, a lawful permanent resident in the United States and qualified relative, petitioned for an immigration Visa on Yang’s behalf.
Yang filed various applications for relief from deportation under the Immigration and Nationality Act (“INA”), including a request for asylum and withholding of removal, protection under the Convention Against Torture, and adjustment of status based on his mother’s visa petition.
Initial IJ Decision: Adverse credibility ruling and denial of asylum
In June 2008, an immigration judge (“IJ”) conducted an evidentiary hearing on Yang’s asylum application. The IJ rendered an adverse credibility determination, finding that Yang’s demeanor undermined his credibility. The IJ observed that Yang had taken notes with him to the witness stand, and appeared to refer to them during his testimony; that he had signaled his mother before and during her testimony, and that her testimony had changed after the signal; and that there were several inconsistencies between Yang’s asylum application and his testimony at the hearing. The IJ then denied Yang’s asylum application.
Second IJ Decision: Denial of adjustment of status due to willful misrepresentation
Under 8 U.S.C § 1182(a)(6)(C)(i), an alien who seeks to procure an immigration benefit by “fraud or willfully misrepresenting a material fact” is inadmissible. The Second IJ Decision denied Yang’s adjustment application partly because the IJ determined that Yang had engaged in fraud and willful misrepresentation to procure an immigration benefit, and was thus ineligible for adjustment. The IJ justified the willful misrepresentation ruling by invoking the Initial IJ Decision’s credibility ruling.
Yang appealed both the Initial and Second decisions to the BIA, and the BIA affirmed both. Yang then petitioned the Fourth Circuit for review of the BIA’s decision.
The Second IJ Decision Committed Legal Error by Using an “Adverse Credibility” Ruling as the Equivalent of “Willful Misrepresentation”
Adverse credibility and willful misrepresentation are distinct legal concepts and require separate analyses. An adverse credibility determination does not require any deliberate and voluntary misrepresentation – inconsistencies between a petitioner’s application and subsequent testimony may suffice. On the other hand, a determination that an alien made a willful misrepresentation requires that deliberate and voluntary misrepresentation be shown by clear and convincing evidence.
The Fourth Circuit held that the Second IJ Decision had committed legal error because it based its willful misrepresentation ruling solely on the credibility ruling of the Initial IJ Decision, without any other basis for finding the deliberate and voluntary requirements.
To Render a Petitioner Inadmissible Under 8 U.S.C. § 1182(a)(6)(C)(i), the Government Must Show by Clear and Convincing Evidence that the Petitioner’s Willful Misrepresentation Was Used to Seek an Immigration Benefit
The Fourth Circuit then went on to review the record to see if it contained any factual basis on which the Second Decision could have reached the conclusion that Yang was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i).
In his original asylum application, Yang stated that he feared harm from the Chinese government based on his political participation in the 1989 student protests at Tianamen Square, and his association with the Falun Gong group, which had been prosecuted by the Chinese government.
At the Initial IJ Hearing, Yang explained that a “travel service” had prepared his original asylum application forms because he did not speak English at the time. Reviewing the application at the hearing, he clarified that he had participated in demonstrations in Fuzhou supporting the Tianamen student protests, and that while he had contact with Falun Gong, he was not relying on these contacts for purposes of his asylum application.
The Fourth Circuit remarked that while a comparison of Yang’s asylum application and his Initial IJ Hearing testimony did show contradictory statements, the record did not show that these statements had been knowing and deliberate misrepresentations to gain an immigration benefit. In fact, to the extent it contradicted his asylum application, the testimony harmed his prospects of gaining the immigration benefit he was seeking – asylum. Additionally, the language barrier could explain the variations between the application and his testimony.
The Record Did Not Contain Clear and Convincing Evidence that Yang Attempted to Procure an Immigration Benefit by Deliberately and Voluntarily Making False Statements.
Willful misrepresentation to procure an immigration benefit 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). Because the record lacked substantial evidence that would have supported such a determination, the Court held that the Second IJ Decision erred in determining that Yang was inadmissible under § 1182(a)(6)(C)(i), and the BIA erred in affirming in that respect.