17-3989
Wang v. Whitaker

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
31st day of January, two thousand nineteen.

Present:       PIERRE N. LEVAL,
               ROSEMARY S. POOLER,
               DEBRA ANN LIVINGSTON,
                           Circuit Judges.

_____________________________________________________

DE MING WANG, AKA DO MANG WANG,

                              Petitioner,

                      v.                                                   17-3989-ag

MATTHEW G. WHITAKER, ACTING UNITED
STATES ATTORNEY GENERAL,

                        Respondent.
_____________________________________________________

Appearing for Petitioner:     Robert F. Graziano, Buffalo, NY.

Appearing for Respondent:     Anna Juarez, Trial Attorney (Chad A. Readler, Acting Assistant
                              Attorney General, Melissa Neiman-Kelting, Assistant Director; on
                              the brief), Office of Immigration Litigation, United States
                              Department of Justice, Washington, DC.
        UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the
petition for review is GRANTED.

        Petitioner De Ming Wang, a native and citizen of the People’s Republic of China, seeks
review of a December 5, 2017, decision of the BIA dismissing his appeal of a July 12, 2017,
decision of an Immigration Judge (“IJ”) ordering his removal and finding him ineligible for
cancellation of removal or a waiver of inadmissibility. In re De Ming Wang, No. A 071 768 837
(B.I.A. Dec. 5, 2017), aff’g No. A 071 768 837 (Immig. Ct. Batavia July 12, 2017). We assume
the parties’ familiarity with the underlying facts and procedural history in this case.

        Wang was ordered removed on account of a conviction for a crime involving moral
turpitude (“CIMT”), limiting our jurisdiction to constitutional claims and questions of law.
8 U.S.C. § 1252(a)(2)(C), (D). Our review is thus confined to the issues of whether (1) the
Government established Wang’s removability based on a material misrepresentation, (2)
denying him the right to seek a fraud waiver based solely on his classification as an arriving alien
violates equal protection, and (3) Wang is statutorily eligible for relief from removal. See
Kungys v. United States, 485 U.S. 759, 772 (1988) (materiality of misrepresentation); Gjerjaj v.
Holder, 691 F.3d 288, 292-93 (2d Cir. 2012) (equal protection); Argueta v. Holder, 617 F.3d
109, 112 (2d Cir. 2010) (statutory eligibility for discretionary relief from removal). We review
such questions de novo. Pierre v. Holder, 738 F.3d 39, 47 (2d Cir. 2013). We review an IJ’s
decision as supplemented and modified by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

        The BIA declined to review the IJ’s determination that Wang was inadmissible because,
in his prior asylum applications, he committed fraud or made a material misrepresentation.
Instead, in finding Wang inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), the BIA relied on his
failure to reveal his second marriage in his application to adjustment of status to lawful
permanent resident (“LPR”) based on his third marriage.

        Although Wang is removable for a CIMT, the agency erred by finding Wang
inadmissible for fraudulently obtaining his LPR status. The Government must prove
removability by clear and convincing evidence. Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d
72, 78 (2d Cir. 2008). The Government charged Wang as removable under 8 U.S.C. §
1182(a)(6)(C)(i). Under this provision, an alien is inadmissible if he, “by fraud or willfully
misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a
visa, other documentation, or admission into the United States or other benefit.” 8 U.S.C. §
1182(a)(6)(C)(i). “Willful” is defined as an act “done intentionally and deliberately and if it is
not the result of an innocent mistake, negligence or inadvertence.” Emokah v. Mukasey, 523
F.3d 110, 116-17 (2d Cir. 2008) (internal quotation marks omitted). A material fact is one that
“was predictably capable of affecting, i.e., had a natural tendency to affect, the official decision.”
Monter v. Gonzales, 430 F.3d 546, 558 (2d Cir. 2005) (internal quotation marks omitted). An
alien “procures” an immigration benefit “through material misrepresentation when that
misrepresentation was determinative to the alien’s success in obtaining the benefit sought.”
Emokah, 523 F.3d at 117.




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        “[W]here an immigration court finds that an alien has made a material misrepresentation,
the IJ must also determine whether that alien has rebutted the resulting presumption that he or
she would have been removable if the true facts had been known to the [agency].” Monter, 430
F.3d at 557; see also Emokah, 523 F.3d at 117 (“Proof that an alien has made a material
misrepresentation in the course of applying for an immigration benefit creates a rebuttable
presumption that the alien procured the benefit by means of this misrepresentation. . . . To rebut
this presumption, the alien must demonstrate that knowledge of his true circumstances would not
have led to the denial of the benefit.” (internal citation omitted)).

        The agency found that Wang’s “failure to report his second marriage on his application
for adjustment of status shut off a line of inquiry relevant to his eligibility for adjustment of
status” because his adjustment to LPR status was based on his subsequent marriage to a U.S.
citizen. But this omission was not material. The Department of Homeland Security found
Wang’s third marriage to a U.S. citizen valid, such that the omission of his second marriage did
not affect the outcome of his adjustment application. See Emokah, 523 F.3d at 117; Monter, 430
F.3d at 558; see also 8 U.S.C. § 1255(a) (describing requirements for adjustment of status); cf. 8
C.F.R. § 204.2(a)(1)(ii) (stating that 8 U.S.C. § 1154(c) “prohibits the approval of a visa petition
filed on behalf of an alien who has attempted or conspired to enter into a marriage for the
purpose of evading the immigration laws” (emphasis added)).

         Before the agency, DHS argued that Wang’s willful failure to report his second marriage
in his adjustment application was material because it prevented the adjudicator from verifying
that all prior marriages were legally dissolved or terminated before the grant of permanent
residency. But this argument is unavailing because Wang’s second marriage was, in fact,
terminated at the time of his application. Specifically, the divorce certificates in the record show
that Wang secured a divorce from his first wife in 1995 in China, Wang married his second wife
in the United States in 1996, and the divorce from his second wife was finalized in 1997.
According to his adjustment application, Wang married his third wife in 1998. Wang’s
concession that his second marriage was not “factual,” is irrelevant: it only matters whether
Wang entered his third marriage for the purpose of avoiding immigration laws because that
marriage is the only one through which he attempted to obtain an immigration benefit. See 8
C.F.R. § 204.2(a)(1)(ii). The record does not reflect, nor did the agency suggest, that Wang’s
second wife was a U.S. citizen or an LPR, that he attempted to obtain an immigration benefit
through his second marriage, or that he did not enter his third marriage in good faith.

        Moreover, even if Wang’s omission of his second marriage was material, the agency did
not consider whether he rebutted the presumption of materiality by presenting evidence of the
facts he omitted from his adjustment application—that he was twice divorced rather than once
divorced—and showing that, had the adjudicator known about his second marriage when
assessing his case, he would still have met the statutory requirements for LPR status. See
Monter, 430 F.3d at 557. Wang met this requirement because (1) he provided the agency with
evidence of his divorces, which took place before he married his third wife, and (2) that evidence
showed that he met the statutory qualification for marriage-based adjustment to LPR status—that
of a bona fide (third) marriage entered in good faith. Id.




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        Accordingly, the Government failed to establish his removability under 8 U.S.C. §
1182(a)(6)(C)(i) based on his application to adjust LPR status. Because Wang did not conceal a
material fact in his application for LPR status, the other ground of inadmissibility based on his
lack of a valid entry document cannot apply. Thus, the only remaining ground of removability is
the CIMT charge. Accordingly, Wang’s argument that denying him the right to seek a fraud
waiver violates equal protection is moot.

        Given that the agency incorrectly determined that Wang was never lawfully accorded
permanent resident status, the agency should have considered his eligibility for cancellation of
removal. Cancellation is discretionary relief for LPRs (whether inadmissible or deportable) who
have been LPRs for at least five years, resided in the United States continuously for at least
seven years, and not been convicted of an aggravated felony. 8 U.S.C. § 1229b(a). Wang
appears to meet all three requirements: he became an LPR in 2000 and has continuously lived in
the United States since that time, and his 2010 conviction, which occurred more than seven years
after his adjustment to LPR status, was not found to be an aggravated felony. Thus, remand is
warranted for the agency to determine conclusively whether Wang is eligible for cancellation
and whether he merits that relief as a matter of discretion. Alternatively, on remand the BIA
might consider whether the fraud ground of removability, 8 U.S.C. § 1182(a)(6)(c)(i), is
supported by Wang’s asylum applications, in which case Wang’s equal protection argument
regarding the unavailability of a fraud waiver may again become an issue.

    For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is
VACATED, and the case is REMANDED for further proceedings consistent with this order.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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