                                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


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)(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




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