Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975): "Intent to Deceive" Not Required For Willful Misrepresentation

 

Introduction: Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975)

On April 7, 1975 (corrected by amendatory order on May 2, 1975), the Board of Immigration Appeals (BIA) published an important immigration precedent decision in the Matter of Kai Hing Hui, 15 I&N Dec. 288 (BIA 1975) [PDF version]. In the decision, the Board held that the respondent was excludable (under the laws in effect at the time) for having willfully misrepresented his identity, date, and place of birth or nationality. The Board found that the respondent's misrepresentations were material and that the respondent's knowledge of the misrepresentations satisfied the scienter (knowledge) requirement for establishing his excludability. The decision has subsequently been cited in many administrative and judicial decisions, including the recent Board precedent decision of Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496, 498 (BIA 2018) [see article].

In this article, we will review the Matter of Kai Hing Hui in its entirely and discuss how the precedent has been applied over the four decades since its publication.

Factual and Procedural History: 15 I&N Dec. at 288-89

The respondent was a 43-year old native and citizen of China who had last entered the United States as a nonimmigrant on June 14, 1970. The respondent entered the United States with a Mexican border crossing card which had been issued to him in 1967 based on a false identity. The respondent had initially entered Mexico in 1948 with a false Mexican passport which his father had obtained on his behalf.

On August 14, 1970, the respondent's sister, a naturalized U.S. citizen, filed a fifth preference immigrant visa petition on his behalf. The immigrant visa petition was approved on January 2, 1971. Based on the approved immigrant visa petition, the respondent applied for adjustment of status.

The former Immigration and Naturalization Service (INS) district director with jurisdiction over the application denied the respondent's adjustment of status application. The district director concluded that the respondent was excludable from the United States under former section 212(a)(19) of the Immigration and Nationality Act (INA) for fraud or willful misrepresentation of a material fact, namely, his misrepresentations of his identity, date of birth, nationality, and place of birth. The respondent was placed in deportation proceedings before an immigration judge.

In deportation proceedings, the respondent conceded his alienage and deportability as an overstayed visitor. He renewed his application for adjustment of status before the immigration judge. The immigration judge diverged from the district director, concluding that the respondent was not inadmissible for fraud or willful misrepresentation under former section 212(a)(19) and granted his application for adjustment of status. The INS appealed from the immigration judge's decision to the BIA.

Issue Before the Board: 15 I&N Dec. at 289-90

The Board explained that “[t]he sole issue before us is whether the respondent's misrepresentations of his identity, date of birth, nationality, and place of birth in obtaining a nonresident alien Mexican border crossing card is material within [former] section 212(a)(19) of the [INA].”

The Board quoted from Matter of S- and B-C-,9 I&N Dec. 436, 448-49 (A.G. 1961) [PDF version] [see article], wherein then-Attorney General Robert Kennedy set forth the standard for determining whether a misrepresentation is “material”:

The test of materiality … is the following: A misrepresentation made in connection with an application for visa or other document, or with entry in the United States, is material if either (1) the alien is excludable on the true facts, or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien's eligibility and which might well have resulted in a proper determination that he be excluded…

In the instant case, the respondent made several false certifications to procure his Mexican border crossing card. The Board explained that the respondent falsely certified that:

His name was Fernando Chee Acevedo;
His date of birth was May 1, 1929; and
He was born in Chihuahua, Mexico.

Contrary to the respondent's certifications, listed above, his true name was Kai Hing Hui and he was born on December 14, 1930, in China.

The Board noted that based on the respondent's birth in China, he was ineligible for a nonresident alien Mexican border crossing card, the issuance of which was limited under federal regulations to Mexican nationals.

In determining that the respondent was not inadmissible, the immigration judge found that the respondent had not made the misrepresentations with the intent to deceive, which the judge held was necessary to sustain an inadmissibility finding. In so doing, the immigration judge took the position that the Attorney General's decision in Matter of S- and B-C- had effectively overruled the Board's earlier precedent on this point in Matter of G-G-, 7 I&N Dec. 161 (BIA 1956) [see article], albeit without ever explicitly having done so. The Board disagreed with the immigration judge's conclusions.

The Board stated that “[t]he issue of intent with which the respondent gave those untrue answers is no longer governing.” Contrary to the immigration judge's reading, the Board read Matter of S- and B-C- as only modifying Matter of G-G-, rather than overruling it, “so that the intent to deceive is no longer required before the willful misrepresentation charge comes into play.”

The Board found that the respondent had made misrepresentations of his identity, place of birth, nationality, and date of birth, and that he had done so for the purpose of obtaining an immigration benefit for which he would not otherwise have been eligible. The Board further noted that the respondent knew that he was not “Fernando Chee Acevedo” and that had he been honest about his identity, he would not have been granted a Mexican border crossing card.

Based on the foregoing facts, the Board concluded that:

1. The respondent procured a visa or other documentation by fraud, or by willfully misrepresenting a material fact; and
2. The respondent had not established his admissibility.

Based on its conclusions, the Board overruled the immigration judge and held that the respondent was ineligible for adjustment of status based on his former section 212(a)(19) inadmissibility. Furthermore, the Board concluded that “[t]he respondent has not offered sufficient countervailing equities necessary to offset the adverse factors to merit favorable exercise of administrative discretion.” Here, the Board cited to its precedent in Matter of Arai, 13 I&N Dec. 494 (BIA 1970) [PDF version], which we discuss in a separate article on site [see article].

Subsequent History

Matter of Kai Hing Hui has been cited extensively in unpublished BIA decisions. However, on three occasions, it has been cited in published decisions.

Most recently, the Board referenced Matter of Kai Hing Hui in Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. at 498 (BIA 2018) [see article]. Here, the Board cited to Matter of Kai Hing Hui's conclusion that “willful misrepresentation” does not require an “intent to deceive.” The Board thereby distinguished “willful misrepresentation” from “fraud” in its not having an intent to deceive requirement.

In Matter of D-R-, 25 I&N Dec. 445, 450 (BIA 2011) [see article], the Board cited to Matter of Kai Hing Hui as an example of the rule that a misrepresentation is material if it has the tendency to shut off a line of inquiry that would have led to a proper determination of inadmissibility.

Finally, in Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984) [PDF version], the Board distinguished a case involving aliens who used false passports to travel under the former transit without visa (TRWOV) provisions from the situation in Matter of Kai Hing Hui.

Matter of Kai Hing Hui has also been cited in several published Federal appellate court decisions.

In Castaneda-Gonzalez v. Immigration and Naturalization Service, 564 F.2d 417, 434 (D.C. Cir. 1977) [PDF version], the United States Court of Appeals for the District of Columbia Circuit considered a case where an alien had been found to be deportable for having relied on a labor certificate containing incorrect information in seeking entry into the United States. The D.C. Circuit held that, while “intent to deceive” was not a requirement for establishing deportability under former section 212(a)(19), “it must at least show that [the alien] knowingly and intentionally supplied the Labor Department with incorrect material facts when applying for his labor certification.”

In Parlak v. Holder, 578 F.3d 457, 464 (6th Cir. 2009) [PDF version], the United States Court of Appeals for the Sixth Circuit noted that Matter of Kai Hing Hui explicitly established the Board's position that the “intent to deceive” is not a requirement for fraud or willful misrepresentation. The United States Court of Appeals for the Ninth Circuit cited to the same portion of Matter of Kai Hing Hui in Forbes v. I.N.S., 48 F.3d 439, 442 (9th Cir. 1985) [PDF version]. The United States Court of Appeals for the Eleventh Circuit also cited Matter of Kai Hing Hui in support of this proposition in Ortiz-Bouchet v. U.S. Atty. Gen., 714 F.3d 1353, 1357 (11th Cir. 2013), a decision we discuss in detail in a separate article [see article].

Finally, two circuits cited to the passage in Matter of Kai Hing Hui which explained that a willful misrepresentation is one that may have the tendency to shut off a line of inquiry which would have led to the alien correctly being found to be inadmissible (or excludable under prior law): Mwongera v. I.N.S., 187 F.3d 323, 330 (3d Cir. 1999) [PDF version]; and Injeti v. U.S. Citizenship and Immigration Services, 737 F.3d 311, 316 (4th Cir. 2016) [PDF version].

Conclusion

Although a brief opinion, Matter of Kai Hing Hui remains an influential precedent to this day. It is most significant for its clarification of earlier precedents in making clear that the “intent to deceive” is not an element of willful misrepresentation. It is also notable for highlighting the rule from earlier precedent decisions that a willful misrepresentation is one that may shut off a line of inquiry that would have led to a correct determination that the alien had committed a willful misrepresentation.

In general, an alien who is charged with inadmissibility for fraud or willful misrepresentation should consult with an experienced immigration attorney immediately. The case also highlights the potentially severe consequences of being found to have willfully misrepresented a material fact.

For more information on this and related issues, please see the internal links in this article and our website's growing selection of articles on removal and deportation defense [see category]. To read about more immigration precedent decisions, please see our index of full articles [see index].