Introduction: Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496 (BIA 2018)

On December 20, 2018, the Board of Immigration Appeals (BIA) published its final precedent decision of 2018 in the Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496 (BIA 2018) [PDF version]. The Board was tasked with determining when an alien is deemed to have made a willful misrepresentation of a material fact — under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) — based on false statements in an application filed on the alien’s behalf. The Board held that an alien is deemed to have made a willful misrepresentation if he or she knows of or otherwise authorizes false statements made in an application filed on his or her behalf. The existence of an alien’s signature on an application filed on his or her behalf “establishes a strong presumption that he or she knows of and has asserted to the contents of the application…” However, the Board also made clear that this “strong presumption” is rebuttable where the alien establishes “fraud, deceit, or other wrongful acts by another person.”

Matter of A.J. Valdez and Z. Valdez is a significant precedent decision in the context of inadmissibility and removability for willful misrepresentation. In this article, we will examine the factual and procedural history of the matter, the Board’s reasoning and conclusions, and what this new precedent will mean for immigration applications and certain proceedings going forward.

Factual and Procedural History: 27 I&N Dec. at 496-98

The respondents were husband and wife and natives and citizens of Venezuela. They were admitted to the United States as nonimmigrant visitors on March 3, 1993, and were authorized to remain until September 2 of that same year. The respondents, however, remained longer. The Board except where otherwise specified, referred solely to the husband the singular respondent because he was the principal respondent. Accordingly, we shall do the same in this article.

On December 17, 1997, an immigrant visa petition was filed in the name of St. Mark Catholic Church on behalf of the respondent, seeking to classify him as a special immigrant religious worker. The petition was accompanied by supporting documents purporting to show that the respondent worked as a minister at the church, although the Board would later note that the respondent had never worked at St. Mark Catholic Church. Nevertheless, on September 30, 1998, the respondent filed an application for adjustment of status accompanied by a Form G-325A, Biographic Information, falsely stating that he had worked at the St. Mark Catholic Church as a minister for several years. On January 13, 2000, the respondent was granted adjustment of status based on his status as a special immigrant religious worker. His wife was granted adjustment of status as a derivative.

Over one decade after being granted adjustment of status, the respondents arrived at a Miami airport on April 25, 2011, and applied for admission as returning residents after a prolonged trip abroad. After being referred for deferred inspection, the respondent signed a sworn statement admitting that he had never worked as a minister in the United States prior to becoming a permanent resident based on such work. Based on this statement and its findings, the Department of Homeland Security (DHS) initiated removal proceedings against the respondents on finding that they had obtained lawful permanent resident status through fraud or willful misrepresentation of a material fact. Specifically, the respondents were charged as being removable under section 237(a)(1)(A) for being inadmissible at the time of adjustment of status under section 212(a)(6)(C)(i).

In removal proceedings, the respondent claimed that he had not known that his application for adjustment of status included false claims that he worked as a religious minister until he was referred for deferred inspection at the Miami airport in 2011. He testified that between his entry into the United States as a nonimmigrant visitor and the initiation of the process for obtaining permanent residency, he had been “referred to a person who he understood could represent him in his effort to obtain permanent immigration status” (Board’s description of the testimony). The respondent stated that this individual represented himself as an “attorney and pastor” and told him that he could assist him in obtaining permanent resident status “through the church” for the price of $15,000. The respondent stated that this individual and his staff prepared all of the documents pertaining to the adjustment of status application. Although the respondent conceded that he did sign the adjustment of status applications, he claimed that he did not know what they contained because he could neither speak nor write English. The respondent’s wife also conceded that she signed a derivative adjustment application but claimed that she did not know that it contained false information.

The immigration judge concluded that the respondents were not credible. Accordingly, he found that the respondents had procured their adjustment of status through willful misrepresentation of a material fact. The immigration judge found that the respondents were removable for having been inadmissible under section 212(a)(6)(C)(i) of the INA at the time of adjustment of status. The immigration judge also denied the respondents’ request for a waiver of removability under section 237(a)(1)(H), a point which the respondents did not raise on appeal and was thus deemed to have been waived.

The respondents appealed from the immigration judge’s conclusion that they were removable for willful misrepresentation of a material fact to the BIA.

Board’s Analysis and Conclusions: 27 I&N Dec. at 498-502

There was no question that the respondent’s adjustment of status application contained materially false information. Thus, the issue before the Board was whether the respondents had made willful misrepresentations in the applications or whether they had been unaware of the nefarious actions of the individuals who had prepared the applications. The broader issue was to what extent the false statements on the applications could be presumed to have been made by the respondents, who signed the applications, and whether the respondents rebutted said presumption.

For reasons discussed below, the Board ultimately agreed with the immigration judge that the respondents were removable for having obtained lawful permanent resident status by willful misrepresentation and dismissed the respondents’ appeal. We will analyze each section of the Board’s analysis and conclusions in turn.

Overview of Willful Misrepresentation: 27 I&N Dec. at 498

Section 212(a)(6)(C)(i) of the INA renders inadmissible “Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit under [the INA]…” In the instant case, the DHS alleged that the respondents obtained adjustment of status by willful misrepresentation.

In Matter of S- and B-C-, 9 I&N Dec. 436, 445 (BIA 1960; A.G. 1961) [PDF version], then-Attorney General Robert Kennedy held that misrepresentations are willful when they are “deliberately made with knowledge of their falsity.” In Matter of Kai Hing Hui, 15 I&N Dec. 288, 289-90 (BIA 1975) [PDF version] [see article], the Board held that the “intent to deceive” is not required for a misrepresentation to be willful (“intent to deceive” is, however, an element of “fraud” under section 212(a)(6)(C)(i)). In United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010) [PDF version], the United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction the instant case arose [see article], held that a misrepresentation is material when it has a “natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.”

Positions of DHS and Respondents: 27 I&N Dec. at 498-99

In support of the removal charges, the DHS submitted the visa petition filed on behalf of the respondent, supporting documents filed with the petition claiming that the respondent was a salaried employee of St. Mark Catholic Church, and the adjustment of status application and supporting documents claiming the same. Additionally, the DHS also submitted a transcript of the respondent’s 2011 airport interview, wherein he admitted that he had signed documents to apply for permanent residency as a religious worker and had obtained such status despite having never worked at St. Mark Catholic Church.

The respondents claimed that they did not know that the documents submitted by DHS contained false claims because the documents were written in English. The respondents stated that they did not understand English at the time. The respondents additionally relied on the decision of the Eleventh Circuit in Ortiz-Bouchet v. U.S. Attorney General, 714 F.3d 1353 (11th Cir. 2013) (per curiam) [PDF version] [see article], in arguing that the evidence in the record was insufficient for establishing that they made a willful misrepresentation. Like the immigration judge, the Board would ultimately find the respondents’ arguments and reliance on Ortiz-Bouchet unavailing.

BIA Holds That a Signature Establishes “Strong Presumption” of Knowledge of or Assent to Contents of Applications: 27 I&N Dec. at 499

The Board noted that courts have held in the immigration context and in other contexts that a signature establishes a strong presumption that the signer has knowledge of or assents to the contents of the document to which he or she affixed a signature. For example, the United States Court of Appeals for the Sixth Circuit held in Thompson v. Lynch, 788 F.3d 638, 647 (6th Cir. 2015) [PDF version], that “in various contexts, including immigration cases, one’s signature on a form or contract establishes a strong presumption” that the signer knows of or assents to the contents of the form or contract. Courts have held that this presumption is rebuttable in limited circumstances. In United States v. Baptist, 759 F.3d 690, 696 (7th Cir. 2014) [PDF version], the United States Court of Appeals for the Seventh Circuit held that an alien’s failure to read a waiver form did not prove that the waiver was invalid, “absent evidence that [the alien] was tricked or pressured into signing in.” In Bingham v. Holder, 637 F.3d 1040, 1045 (9th Cir. 2011) [PDF version], the United States Court of Appeals for the Ninth Circuit held that an individual is presumed to know the contents of a contract he or she signs “in the absence of fraud or other wrongful act on the part of another contracting party…” (Internal citation omitted.)

In addition to ample case-law and the principles of contract law, the Board found support for the “strong presumption” of knowledge of the contents of a signed immigration application in the regulations governing asylum applications. The DHS regulations at 8 C.F.R. 208.3(c)(2) and the corresponding Attorney General regulations at 1208.3(c)(2) state that an “applicant’s signature [on an asylum application] establishes a presumption that the applicant is aware of the contents of the application.” In Matter of Y-L-, 24 I&N Dec. 151, 161 (BIA 2007) [PDF version], the Board applied this presumption to reject an alien’s argument that his attorney was responsible for providing false information in his asylum application.

Rebutting “Strong Presumption” of Knowledge of or Assent to Contents of Signed Application: 27 I&N Dec. at 499-500

With reference to the decision of the United States Court of Appeals for the Second Circuit in Zhi Wei Pang v. BCIS, 448 F.3d 102, 107-108 (2d Cir. 2006) [PDF version], the Board held that in cases where an alien challenges the accuracy of the contents of a signed immigration application, “the Immigration Judge must evaluate the alien’s explanations and consider the facts of the particular case to determine whether he or she has rebutted the presumption of knowledge of the document’s contents.” The Board held that an alien cannot rebut the presumption by “deliberately avoid[ing] reading the application or having it explained or translated…” The Eleventh Circuit reached this result in a different contract context in Bautista v. Star Cruises, 396 F.3d 1289, 1301 (11th Cir. 2005) [PDF version], wherein it wrote that “the general principle that ‘[o]ne who has executed a written contract and is ignorant of its contents cannot set up that ignorance to avoid the obligation absent fraud and misrepresentation.’”

Proceedings in Immigration Court: 27 I&N Dec. at 500

Because it was “undisputed that the respondents signed adjustment applications that were based on the assertion that the respondent was employed as a religious worker at St. Mark Catholic Church,” the Board held that there existed “[a] strong presumption that they knew the contents of their documents…” As we noted, the respondents endeavored to rebut the presumption of knowledge by claiming that they were unable to read the documents due to their lack of English-language proficiency. However, the Board wrote that “[g]iven the nature and significance of immigration documents … it is reasonable to expect that aliens will take steps to ascertain the accuracy of documents they sign and obtain a translation, if necessary.”

In immigration proceedings, the immigration judge had determined that the respondents were not credible. In support of this conclusion, the immigration judge identified several significant inconsistencies in the testimonies of the respondents. For example, the principal respondent provided inconsistent testimony regarding his involvement at St. Mark Catholic Church and even whether he had ever attended services at the Church at all. The respondent’s wife provided a different date for when the purportedly began attending services at St. Mark Catholic Church than did the respondent when he claimed that he had for some period attended services there.

Furthermore, the immigration judge found that the testimony was “vague and evasive.” (Board’s description of the immigration judge’s findings.) These points led the immigration judge to conclude that it was implausible that the respondents were unaware of the inaccuracies in the signed documents. Notably, the respondent admitted in his 2011 interview with DHS that he had obtained lawful permanent resident status as a religious worker despite never having been paid a salary by a religious organization. He stated that he had believed at the time he was allegedly told he could obtain status “through the church” for $15,000 that the offer seemed “too good to be true.” Nevertheless, the Board noted that, by their own accounts, the respondent and his wife had never inquired how this arrangement was possible in multiple meetings with their representative and his staff despite believing that it sounded “too good to be true.”

Board Finds No Clear Error in IJ Conclusion That Respondents Were Not Credible: 27 I&N Dec. at 500-501

Citing to Matter of D-R-, 25 I&N Dec. 445, 454-55 (BIA 2011) [see article], the Board concluded that the immigration judge was entitled to make “reasonable inferences from direct and circumstantial evidence of the record as a whole” regarding the respondents’ credibility. The standard of review for an adverse credibility finding is whether the immigration judge made a clear error. In the instant case, the Board found no clear error in the immigration judge’s adverse credibility finding or his determination that the respondents were aware of or authorized the false statements that their representative made on their behalf.

Board Finds That Respondents Made Willful Representation Regardless of Credibility: 27 I&N Dec. at 501

Although the Board affirmed the immigration judge’s adverse credibility finding, it held that even if the respondents’ testimony was deemed to be credible, they would still not overcome the strong presumption that they were aware of the content of the forms they signed. The Board noted that the respondent affixed his signature “directly below a statement certifying, under penalty of perjury, that his application and the evidence submitted with it were all true and correct.” In his interview, the respondent conceded both that he had known the application was for immigration status as a religious worker and that he had never been employed as a religious worker at St. Mark Catholic Church. The respondent’s wife conceded that she was told by the representative that the adjustment application was for her to become a lawful permanent resident before she signed the same statement asserting to the truth of the information included in the application and supporting documents. Neither the respondent nor his wife claimed that the representative or a member of the representatives staff had misled them.

The Board held that, “[a]t a minimum, the facts and circumstances indicate that the respondents made a conscious choice to avoid knowing about the misrepresentations their applications contained.” As the Board discussed earlier, “deliberate avoidance does not excuse their false statements.” Based on the circumstances of the case, the Board concluded “that the Immigration Judge properly applied the presumption of knowledge and determined that the respondents knew of or authorized the falsehoods in their documents.”

Board Rejects Respondents’ Reliance on Ortiz-Bouchet: 27 I&N Dec. at 502

Earlier, we noted that the respondents relied heavily on the Eleventh Circuit’s decision in Ortiz-Bouchet to support their claims. The Board found that the facts underlying Ortiz-Bouchet were clearly distinguishable from those involved in the instant case. Namely, the alien in Ortiz-Bouchet claimed to have never seen nor signed the documents in question and that his purported signature on the documents had been forged. Furthermore, the Immigration Judge in that case had determined that the alien “did not personally willfully misrepresent a material fact.” Ortiz-Bouchet, 714 F.3d at 1356. It was based on these facts that the Eleventh Circuit concluded that there was no substantial evidence that the alien “made, knew of, or authorized” his representative’s misrepresentation made on his behalf. Id. at 1357.

Conversely, in the instant case, the respondents did not contest that they had signed their adjustment applications. Accordingly, there was a strong presumption that they knew and assented to the contents of the application. The Immigration Judge concluded for reasons which we have discussed that the respondents failed to overcome the presumption that they knew of and assented to the misrepresentations in their applications, and further found that their claims of ignorance were implausible.

Board’s Conclusion: 27 I&N Dec. at 502

Because the Board found no clear error in the Immigration Judge’s adverse credibility finding or his determination that the respondent’s procured their adjustment of status through the willful misrepresentation of a material fact, the Board affirmed the Immigration Judge’s conclusion that the respondent’s were removable under section 237(a)(1)(A) of the INA as alien’s who were inadmissible at the time of adjustment of status under section 212(a)(6)(C)(i). Accordingly, the Board dismissed the respondents’ appeal.

Conclusion

In Matter of A.J. Valdez and Z. Valdez, the Board made clear that, where an alien signs an immigration document, there is a strong, yet rebuttable, presumption that the alien knows of or authorizes the contents of the document. Where the document contains materially false statements, the alien will face immigration consequences unless he or she can successfully rebut the presumption that he or she knew of the statements therein. This presumption can only be rebutted under limited circumstances where the alien establishes “fraud, deceit, or other wrongful acts by another person.” The Eleventh Circuit decision in Ortiz-Bouchet offered an example of such a case where the alien established that he had not seen the documents in question and that his purported signature on the documents had been forged [see article].

One of the key points in the decision is that willful blindness is not a defense against the presumption that the alien knows of the contents of a document that he or she signs. In the instant case, the respondents attempted to rebut the presumption by claiming that they could not understand English and did not obtain a translation of the documents before signing. The Board made a point of holding that, even if the respondents had been found to be credible, this claim would not have sufficed for rebutting the presumption due to the fact that the respondents had made a conscious choice to not obtain a translation of the documents before signing.

In short, the case highlights three important points for individuals seeking immigration status or benefits. Firstly, it is important to work with a credible and experienced immigration attorney. Regarding the situation in the instant case, this is important because the rules are such that an alien may not be able to rebut the strong presumption that he or she knew of or assented to false statements in an application even where he or she worked with an unscrupulous individual in filing the documents. Secondly, ignorance of the contents of the documents one signs is no defense. If an individual is not proficient in English, he or she has a responsibility to obtain a translation of the documents in order that he or she can study the contents before signing. Finally, the instant case is one of many highlighting the serious consequences of making false statements in immigration applications. It is important to remember that willful misrepresentation may not only lead to the denial of a single application, but also causes inadmissibility which attaches for life with very limited avenues for waivers.

To learn more about immigration precedent decisions, please see our full article index [see index]. We discuss removal and deportation defense in a full section on site [see category].