Argued: September 16, 2014.
Amended: November 5, 2014.
On Petition for Review of an Order of the Board of Immigration Appeals.
Joshua E. Bardavid, BARDAVID LAW, New York, New York, for Petitioner.
Kerry Ann Monaco, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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.
Before MOTZ and KING, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge King wrote the opinion, in which Judge Motz and Senior Judge Davis joined.
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" ). We grant Yang's petition for review, vacate the BIA Decision, and remand for further proceedings.
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)(A)(i), 1227(a)(1)(A). The INA and its regulations offer several avenues by which such an alien may 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, 129 S.Ct. 1159, 173 L.Ed.2d 20 (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 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. 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).
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 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.
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. On July 23, 1997, Yang was ordered deported in 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 ...