Li v. Lynch , 837 F.3d 127 ( 2016 )

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.
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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.
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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
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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.
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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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