          United States Court of Appeals
                      For the First Circuit


No. 15-2373

                          WEN ZHONG LI,

                           Petitioner,

                                v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Howard, Chief Judge,
                Lynch and Barron, Circuit Judges.


     Wei Jia and Law Office of Wei Jia on brief for petitioner.
     Laura Halliday Hickein, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, and Russell
J.E. Verby, Senior Litigation Counsel, on brief for respondent.


                        September 20, 2016
             LYNCH, Circuit Judge.        Wen Zhong Li petitions for review

of the Board of Immigration Appeals' ("BIA") affirmance of an

immigration judge's ("IJ") order removing him to China and denying

his application for adjustment of status or voluntary departure.

Li challenged the Department of Homeland Security's ("DHS") charge

that he was removable because he had procured admission into the

United    States    by    willfully     misrepresenting     his   identity   to

immigration officials.       Following a procedural maze of two Notices

to Appear, multiple IJ rulings, and a denial of an application to

adjust status by the U.S. Citizenship and Immigration Services

("USCIS"),    the   BIA    held   that     Li   was   removable   because    the

misrepresentation of his identity was willful.             Li now argues that

this ruling was error.       We deny his petition.

                                         I.

             Li, a native and citizen of China, was paroled into the

United States on May 2, 2000 in Honolulu, Hawaii after presenting

a fraudulent Japanese passport that featured his photograph but

stated his name as Ikeda Katsuyuki.             According to Li, he procured

that passport from "his friends and family [who] helped him get

[the] passport and everything he needed to enter the United

States."     Under what was then known as the Visa Waiver Pilot

Program    ("VWPP"), 1 which      was    available    to   Japanese,   but   not


     1    Today, the Visa Waiver Program enables eligible citizens
or nationals of thirty-eight designated countries to travel to the


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Chinese, citizens and nationals, Li was paroled into the country

for a period of time not to exceed July 31, 2000.                     Li remained in

the United States past that date.

            On   April     16,    2002,          the    former    Immigration     and

Nationality Service ("INS")2 apprehended Li during a raid on a home

in Quincy, Massachusetts and served him with a Notice to Appear

("NTA").    The NTA charged him as removable for procuring or having

sought to procure admission into the United States "by fraud or

willfully    misrepresenting          a    material      fact"    under   8   U.S.C.

§ 1182(a)(6)(C)(i), and for failing to possess a valid entry

document    at   the     time    of       application      for    admission     under

§ 1182(a)(7)(A)(i)(I).           On       June    25,   2002,    Li   filed   written

pleadings, in which he denied that he had been paroled into the

United States on May 2, 2000; that he had misrepresented himself

as a Japanese citizen and national; and that he had remained in

the United States beyond July 31, 2000 without authorization.

            On July 21, 2003, after holding four hearings on the

matter, an IJ sustained the charge of removability, found that Li

was an arriving alien who was statutorily ineligible for adjustment




United States for up to ninety days without first obtaining a visa.
See U.S. Department of State, Bureau of Consular Affairs, Visa
Waiver Program, https://travel.state.gov/content/visas/en/visit
/visa-waiver-program.html.    Japan remains a designated country,
while China is not. See id.

     2      DHS inherited the INS's functions in March 2003.


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of status or voluntary departure, and ordered him removed to China.

At one of the four hearings, DHS Special Agent Randolph Reeves

testified that, upon apprehension in 2002, Li initially presented

himself to Reeves as Ikeda Katsuyuki and produced an Ohio driver's

license bearing that name.        The license had been issued on January

2, 2001.     Li later admitted to Reeves that his real name was Wen

Zhong Li, that he was a citizen of China, and that he had used a

false Japanese passport to enter the United States.                 Reeves

further explained that at the time of Li's entry, the VWPP had

been temporarily suspended, and so citizens and nationals from

designated    countries    were   being   temporarily   paroled   into   the

United States, rather than being formally admitted.

             A flurry of procedural activity ensued.          In October

2005, Li filed a motion to reopen his removal proceedings, citing

Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005).              A second IJ

granted the motion.       At his reopened removal proceedings in August

2006, Li filed written pleadings that admitted all allegations in

the 2002 NTA, including the fact that he had misrepresented himself

as a Japanese citizen and national and that he was removable under

both statutory provisions cited in that initial NTA.          In February

2007, the second IJ granted Li's motion to terminate proceedings

to allow him to seek employment-based adjustment of status with

the USCIS.     The USCIS denied his application to adjust status in

September 2008 because Li had procured his entry into the United


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States in violation of 8 U.S.C. § 1182(a)(6)(C)(i).                  In June 2009,

DHS issued a second NTA charging Li as removable under the same

two inadmissibility provisions as in the 2002 NTA, and Li filed

written    pleadings    in   response       in   December    2009.      There,    he

conceded removability under § 1182(a)(7)(A)(i)(I) (for failing to

possess a valid entry document at the time of application for

admission),     but      denied       that       he   was     removable     under

§ 1182(a)(6)(C)(i) (for procuring admission into the United States

by fraud or willful misrepresentation of a material fact).                       Li

also sought termination of proceedings, adjustment of status, or

voluntary departure.

            On September 29, 2011, the second IJ found that Li was

removable as charged.        First, as the charge in the 2002 NTA was

identical to that in the 2009 NTA and as the original IJ had

sustained that charge, the second IJ found that the original IJ's

"decision remain[ed] the law of the case."                  The second IJ also

found, in the alternative, that even under an independent review,

Li   had   procured    his   parole    by    willfully      misrepresenting      his

identity with the fraudulent Japanese passport.               Undercutting Li's

argument that he could not read or understand English in 2000 and

thus could not have known that the passport was Japanese or

contained a foreign name,3 the IJ emphasized Li's possession of


      3   Li does not explain why he did not recognize that the
passport was not in Chinese, regardless of his command of English.


                                      - 5 -
the Ohio driver's license -- which featured the same name as the

fraudulent passport and had been issued only months after Li was

paroled   into    the     country.       The   IJ    then   found   that        the

misrepresentation was material because Japan was a VWPP-designated

country but China was not, and Li had thus obtained benefits

"unique to the visa waiver program, namely the ability to enter

the United States without first obtaining a visa stamp."

          The IJ also concluded that Li was ineligible for relief

in the form of adjustment of status because he was inadmissible

under § 1182(a)(6)(C)(i).             See 8 U.S.C. § 1255(a).           Li was

likewise ineligible for voluntary departure because he was an

arriving alien.    See 8 U.S.C. § 1229c(a)(4).

          The     BIA     affirmed,    agreeing     with    the   second    IJ's

assessment of the record evidence.

          Li now petitions for review of the BIA's decision.4

                                       II.

          We review the BIA's finding that an alien procured an

immigration     benefit     through    willful      misrepresentation      as    a

"question of fact" subject to deferential substantial evidence

review.   Akwasi Agyei v. Holder, 729 F.3d 6, 14 (1st Cir. 2013).

This case turns on whether there was substantial evidence to


     4    The BIA also denied Li's motion to close the case pending
DHS's determination of his eligibility for a favorable exercise of
prosecutorial discretion. Li did not petition for review of this
decision, so we do not reach it.


                                      - 6 -
support the finding of willfulness.          We hold that there was such

evidence and accordingly deny Li's petition.

             Substantial evidence supports the BIA's and IJ's finding

that   Li's    misrepresentation     of     his   name,   citizenship,     and

nationality was willful.      See Lutaaya v. Mukasey, 535 F.3d 63, 70

(1st Cir. 2008) (when BIA writes "separately while deferring to

and affirming the decision of an IJ, we review both the BIA's

decision and the relevant portions of the IJ's decision").               Here,

in addition to relying on the law-of-the-case doctrine, see, e.g.,

Arizona   v.    California,   460    U.S.    605,   618   (1983),   the     IJ

independently found on the facts that Li's misrepresentation had

been willful.

             We have held that "the element of willfulness [for the

purpose of 8 U.S.C. § 1182(a)(6)(C)(i)] is satisfied by a finding

that   the     misrepresentation    was     deliberate    and   voluntary."

Toribio-Chavez v. Holder, 611 F.3d 57, 63 (1st Cir. 2010) (quoting

Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999)).             "An intent

to deceive is not necessary; rather, knowledge of the falsity is

sufficient."     Id.

             The record supports the finding that Li deliberately and

voluntarily used the fraudulent Japanese passport to gain entry

into the United States.        For one, Li admitted in his written

pleadings in 2006 that he had misrepresented his identity when he

presented a fraudulent Japanese passport with the name Ikeda


                                    - 7 -
Katsuyuki    so   that    he   could   be    paroled    into   the    country.

Furthermore, less than one year after his entry, Li obtained an

Ohio driver's license with the same false name of Ikeda Katsuyuki.

During the 2002 raid, Li identified himself to Reeves as Ikeda

Katsuyuki, produced the driver's license with that name, and only

later admitted that he was actually Wen Zhong Li.                  These facts

constitute substantial evidence to support the finding that Li's

misrepresentation was willful.         Indeed, as the second IJ observed,

the Ohio driver's license, issued on January 2, 2001, was crucial,

for it showed that Li "had the presence of mind to apply for and

obtain a government-issued document in a name that he claimed to

not be able to read."

            Finally, Li's argument that the IJ erroneously failed to

make a credibility determination does not help him, for three

reasons.    First, it is not clear that the statutory provision that

Li cites, 8 U.S.C. § 1229a(c)(4)(C), applies to the threshold issue

of removability, as distinct from his ability to satisfy other

requirements for relief.        See Ahmed v. Lynch, 804 F.3d 237, 241

(2d Cir. 2015).        Second, contrary to Li's protests that neither

the first nor the second IJ made any credibility finding, the

second IJ's 2011 decision may be read to reflect an adverse

credibility finding.       Indeed, the second IJ explicitly noted how

certain     evidence     "[u]ndercut[]      [Li's]     assertion     that   his

misrepresentation was not willful."          See Chaidy v. Holder, 458 F.


                                   - 8 -
App'x 506, 511 (6th Cir. 2012) (unpublished opinion) (holding that

presumption of credibility did not apply where "[t]he IJ did more

than 'express[] suspicion' about [the petitioner's] credibility;

rather,    he    clearly      disbelieved      it"   (second       alteration      in

original)).       Third,    even    assuming    that    Li    is   entitled   to    a

rebuttable      presumption    of   credibility,       such   a    presumption     is

overcome     where,    as     here,    the     petitioner's         testimony      is

contradicted by a subsequent admission.

             The petition for review is denied.




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