Decided: October 29, 2014
The Fourth Circuit reversed the Board of Immigration’s (“BIA”) decision to deny Xing Yang (“Yang”) relief from deportation. The Court held that the BIA erred by excluding evidence, and applied an incorrect legal standard, when it ruled that Yang was guilty of fraud and willful misrepresentation. The Court also held that Yang had not “abandoned his adjustment application by failing to submit updated biometric data[.]”
Yang, a native of China, came to the United States in early 1993. In March 1993, Yang applied for asylum and withholding of removal. Although a deportation order was entered against Yang in 1997, in 2004 his mother, a “lawful permanent resident” in the United States, successfully acquired an immigration visa for him. Meanwhile, in 2002, Yang’s deportation proceedings were reopened. In his revised application for relief, Yang sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). However, at a 2008 evidentiary hearing in front of an immigration judge (“IJ”), Yang and his mother provided testimony that was inconsistent with statements he made in his asylum application. The IJ subsequently ruled against Yang on all three grounds of relief, and also entered a credibility ruling against Yang based on the inconsistencies between his testimony and his application.
Yang appealed to the Board of Immigration Appeals (“BIA”), which subsequently remanded his case back to the IJ because of the immigration visa his mother had acquired. However, the IJ once again denied Yang a status adjustment, and ruled that Yang’s inconsistent testimony at the 2008 hearing amounted to “fraud and willful misrepresentation[,]” that he had not maintained “current biometric data[,]” and that he had insufficient income to qualify for the immigration visa. The BIA affirmed.
The Court reasoned that the BIA had committed legal error by affirming the IJ’s second ruling because the IJ had based its finding of fraud and willful misrepresentation solely on an earlier finding of “adverse credibility.” According to the Court, evidence of adverse credibility does not necessarily compel a finding of fraud and willful misrepresentation. Furthermore, Yang’s inconsistent testimony at the 2008 hearing was insufficient to constitute fraud and willful misrepresentation because the inconsistencies were immaterial to his asylum application.
Finally, the Court reasoned that Yang had not abandoned his adjustment application by failing to submit updated biometric data because he was legally entitled to be notified of his obligation to update this data but never received that notice. Therefore, the Court reversed the BIA’s decision and remanded his case for further review of Yang’s application for relief from deportation.
James Bull Sterling