De Novo, Not Clear Error: Fourth Circuit Requires BIA to Review Application of the § 1101(f)(6) False-Testimony Bar De Novo and Reaffirms Jurisdiction over Mixed Questions Post-Wilkinson

De Novo, Not Clear Error: Fourth Circuit Requires BIA to Review Application of the § 1101(f)(6) False-Testimony Bar De Novo and Reaffirms Jurisdiction over Mixed Questions Post-Wilkinson

Introduction

In a published decision, the Fourth Circuit granted Jaime Martinez‑Martinez’s petition for review, vacated the Board of Immigration Appeals’ (BIA) decision, and remanded for further proceedings. The case arises from the BIA’s affirmance of an Immigration Judge’s (IJ) denial of non-LPR cancellation of removal on the ground that Martinez‑Martinez was per se barred from establishing good moral character under 8 U.S.C. § 1101(f)(6) for allegedly giving false testimony.

The opinion does two important things. First, it clarifies the scope of judicial review post‑Patel and post‑Wilkinson: courts of appeals retain jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review the application of the “false testimony” statutory standard to an established set of facts (a mixed question), even though they cannot reweigh factual findings such as subjective intent. Second, it holds that the BIA applied the wrong standard of review to the IJ’s ruling; the BIA reviewed for clear error what is, in substance, a legal determination—the application of § 1101(f)(6)’s “false testimony” bar—when it should have reviewed that legal issue de novo pursuant to 8 C.F.R. § 1003.1(d)(3).

The parties: Petitioner Martinez‑Martinez, a Mexican national seeking cancellation of removal, and Respondent the Attorney General (Pamela Jo Bondi). The panel: Judges Agee (author), Heytens, and Berner. The court’s disposition: petition granted; BIA decision vacated and remanded.

Summary of the Opinion

  • Jurisdiction: The court holds it has jurisdiction under § 1252(a)(2)(D) to review mixed questions of law and fact, specifically the BIA’s application of § 1101(f)(6)’s false‑testimony bar to the undisputed facts. It lacks jurisdiction to revisit factual findings, including the IJ/BIA’s determination of the petitioner’s subjective intent to deceive. The court reaffirms the continuing vitality of Jean v. Gonzales after Patel and Wilkinson.
  • Standard of review at the agency: Under 8 C.F.R. § 1003.1(d)(3) and Fourth Circuit precedent, the BIA must review questions of law and the application of legal standards to facts de novo, while reviewing the IJ’s factual findings for clear error. The BIA used the incorrect standard by effectively reviewing the legal “false testimony” determination for clear error.
  • Remand without reaching the ultimate statutory question: Because the BIA committed legal error in its standard of review, the court vacates and remands without deciding whether an omission or concealment (e.g., failing to volunteer an alias) can constitute “testimony” under § 1101(f)(6). The opinion flags Kungys’s definition—that “testimony” means oral statements under oath—but leaves its application to the BIA in the first instance on remand.

Case Background

Martinez‑Martinez conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b. His application listed one alias (“Jaime Martinez Hernandez”). At hearing, he acknowledged inaccuracies and tendered an amended application reflecting an April 2006 entry. He admitted he had used “Jaime Martinez Hernandez” for work documents and an additional alias “Vicente Martinez‑Martinez” when crossing the border in 2006.

On cross, DHS confronted him with an I‑213 reflecting that, during a 2006 encounter, he had given the alias “Juan Sanchez Cabrera.” He testified he did not remember the alias he used and did not recognize “Juan Sanchez Cabrera,” although he was sure he gave a different name at the time.

The IJ denied cancellation, invoking § 1101(f)(6)’s false‑testimony bar based on Martinez‑Martinez’s failure to disclose the “Juan Sanchez‑Cabrera” alias in his application and during his direct testimony, finding he omitted it “for the purpose of obtaining” cancellation. The BIA affirmed, stating there was no clear error in the IJ’s determination that he provided false testimony with the requisite subjective intent to deceive, given his failure to fully and voluntarily disclose aliases until DHS produced contrary evidence.

Martinez‑Martinez sought review, arguing the agency improperly equated omissions with “testimony,” contrary to Kungys v. United States (limiting “testimony” to oral statements under oath). He also moved the BIA to reopen for ineffective assistance; the Fourth Circuit declined to hold the appeal in abeyance, and the motion to reopen remains pending before the BIA.

Detailed Analysis

Precedents Cited and Their Role

  • Kungys v. United States, 485 U.S. 759 (1988): Central to the statutory question. Kungys interprets § 1101(f)(6) to cover only “testimony”—oral statements under oath—given with the subjective purpose of obtaining an immigration benefit. It excludes other misrepresentations or concealments, such as falsified documents or unsworn statements. The Fourth Circuit uses Kungys to demarcate what issues are questions of law (whether a statement is “testimony”) and what are questions of fact (subjective intent).
  • Patel v. Garland, 596 U.S. 328 (2022): Reinforces that courts lack jurisdiction to review factual determinations underlying discretionary relief decisions. The Fourth Circuit reads Patel consistently with its own precedent, emphasizing that § 1252(a)(2)(D) preserves review for constitutional claims and questions of law, including mixed questions. The Court notes that Patel cited Jean approvingly.
  • Wilkinson v. Garland, 601 U.S. 209 (2024): Clarifies that applying a statutory standard to established facts is a mixed question of law and fact. It also suggests that mixed questions call for more deferential appellate review at times, though the Fourth Circuit finds it unnecessary here to select a deferential standard because the outcome is the same under either de novo or abuse‑of‑discretion. The jurisdictional holding—that § 1252(a)(2)(D) covers mixed questions—anchors the court’s jurisdictional analysis.
  • Jean v. Gonzales, 435 F.3d 475 (4th Cir. 2006): Reaffirmed. Jean recognizes that per se ineligibility determinations (like falling within a statutory bar) are legal determinations involving application of law to facts (i.e., mixed questions) and are reviewable under § 1252(a)(2)(D). The government contended Jean was abrogated by Patel and Wilkinson; the Fourth Circuit rejects that contention.
  • Cortes v. Garland, 105 F.4th 124 (4th Cir. 2024): Notes that Wilkinson invites courts to calibrate deference on mixed questions but finds it unnecessary to choose in this case. Signals an ongoing doctrinal refinement in standards of review.
  • Duncan v. Barr, 919 F.3d 209 (4th Cir. 2019); Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014); 8 C.F.R. § 1003.1(d)(3): Establish the BIA’s own review framework: clear error for factual findings; de novo for questions of law and the application of law to fact. The Fourth Circuit relies on these authorities to deem the BIA’s use of clear‑error review a legal error requiring remand.
  • Portillo Flores v. Garland, 3 F.4th 615 (4th Cir. 2021); Cabrera Vasquez v. Barr, 919 F.3d 218 (4th Cir. 2019): Explain when the court reviews the IJ’s decision in addition to the BIA’s. Because the BIA did not adopt the IJ’s opinion here, the Fourth Circuit reviews only the BIA’s reasoning.
  • Funez‑Ortiz v. McHenry, 127 F.4th 498 (4th Cir. 2025): Confirms that the BIA commits legal error when it applies the wrong standard of review to an IJ’s decision—an error independently warranting vacatur and remand.
  • Ibarra v. Bondi, 136 F.4th 63 (4th Cir. 2025); Penaranda Arevalo v. Bondi, 130 F.4th 325 (2d Cir. 2025); Samayoa v. Bondi, 146 F.4th 128 (1st Cir. 2025): Post‑Patel/Wilkinson authorities delineating the scope of review for mixed questions and factual issues like intent in § 1101(f)(6) cases.
  • Royal Canin U.S.A. v. Wullschleger, 604 U.S. 22 (2025): Cited for the axiom that federal courts are courts of limited jurisdiction; used here to set the jurisdictional backdrop.

Legal Reasoning

1) Jurisdiction under § 1252(a)(2)(D): separating law from fact

The government argued that the petition raised unreviewable factual disputes. The Fourth Circuit disagreed. The petitioner’s core claim was that the BIA misapplied § 1101(f)(6) by treating an omission or concealment as “false testimony,” contrary to Kungys. Determining whether the agency applied the correct statutory standard to the established facts is a mixed question of law and fact—squarely within § 1252(a)(2)(D). At the same time, the court emphasized it could not review the IJ’s factual findings regarding the petitioner’s subjective intent to deceive, which remains a factual question foreclosed by § 1252(a)(2)(B), as clarified by Wilkinson.

Importantly, the court rejected the government’s contention that Jean is incompatible with Patel and Wilkinson. The panel reaffirmed that per se statutory ineligibility determinations are reviewable legal determinations (or mixed questions) under § 1252(a)(2)(D), and noted that Patel itself recognized that approach.

2) The agency’s standard of review: de novo for law, clear error for facts

The BIA’s review duties are set by regulation and Fourth Circuit precedent: factual findings (including credibility and intent) are reviewed for clear error; but questions of law and the application of legal standards to facts must be reviewed de novo. The BIA erred by collapsing these categories. In saying it found “no clear error” in the IJ’s determination that the petitioner “provided false testimony within the meaning of § 1101(f)(6),” the BIA treated the legal “false testimony” determination (including what qualifies as “testimony”) as if it were a factual finding.

That is legal error, independently requiring vacatur and remand. The panel emphasizes that the question “whether [a petitioner’s] misrepresentations constitute[] ‘testimony’” is a question of law under Kungys, while whether the petitioner possessed the subjective intent to obtain an immigration benefit is a question of fact.

3) The merits question left for the BIA on remand: omission versus “testimony”

The Fourth Circuit deliberately did not decide whether failures to volunteer aliases on a written application or during direct examination amount to “testimony” for § 1101(f)(6) purposes. It underscored Kungys’s limitation to oral statements made under oath, and highlighted that the BIA’s rationale leaned heavily on omissions and delayed disclosures (“failure to fully and voluntarily disclose . . . until DHS confronted him”). On remand, the BIA must apply de novo the correct legal standard to determine whether any of the petitioner’s statements at the hearing—distinct from omissions—constituted false testimony under the statute, and then separately assess the factual element of subjective intent under the clear‑error standard.

Impact and Practical Implications

  • Binding within the Fourth Circuit: The BIA must review de novo whether conduct constitutes “testimony” under § 1101(f)(6) and whether the facts, as found by the IJ, satisfy the statutory standard. Clear‑error review is confined to factual findings like credibility and subjective intent. Misapplication of this review framework is reversible legal error.
  • Narrowing “false testimony” to sworn oral statements: Although the court did not resolve the issue, its reliance on Kungys signals that mere omissions or concealments—especially in written forms—cannot, standing alone, satisfy the “testimony” element. Agencies within the Fourth Circuit should be cautious about invoking § 1101(f)(6) based solely on non‑testimonial omissions.
  • Preserving legal challenges post‑Patel/Wilkinson: Applicants can continue to raise reviewable legal challenges to per se bars to good moral character and to the application of statutory standards, while recognizing that factual intent findings will be insulated from review. The court’s reaffirmation of Jean helps stabilize appellate review in cancellation cases.
  • Remand dynamics: On remand, the BIA may:
    • Undertake a de novo legal analysis of whether the petitioner’s in‑hearing statements (as opposed to omissions) qualify as “testimony” and, if so, whether they were false;
    • Reaffirm (or revise) its factual finding on subjective intent under clear‑error review; and
    • Consider other, non‑per‑se bases affecting good moral character consistent with § 1101(f) and the record, if raised and preserved.
  • Practice pointers for respondents and counsel:
    • Develop the record to distinguish omissions from sworn oral statements; identify precisely what was said under oath, by whom, and when.
    • Frame appellate arguments as legal challenges to the application of § 1101(f)(6), citing Kungys, and preserve objections to the BIA’s standard of review under 8 C.F.R. § 1003.1(d)(3).
    • Recognize that subjective intent is a factual finding and tailor arguments accordingly, focusing legal challenges on definitional and application issues.
  • Government strategy considerations: DHS and DOJ should ensure that “false testimony” findings are tethered to sworn oral statements, not solely to omissions, and that the BIA’s decisions segregate legal analysis (de novo) from factual review (clear error) to avoid remand.

Complex Concepts Simplified

  • False‑testimony bar (8 U.S.C. § 1101(f)(6)): A person cannot be found to have “good moral character” if, during the relevant period, they “have given false testimony for the purpose of obtaining any immigration benefits.” Per Kungys:
    • “Testimony” means oral statements under oath;
    • It does not include unsworn statements, documents, or mere concealments/omissions;
    • Subjective intent to obtain an immigration benefit is required; materiality of the lie is not required.
  • Good moral character in cancellation of removal: An eligibility requirement for non‑LPR cancellation (§ 1229b(b)). Falling within § 1101(f)(6) is a per se bar for the statutory period. Even if no per se bar applies, adjudicators may, under the statute’s catch‑all, find lack of good moral character based on the totality of conduct.
  • Mixed question of law and fact: A question asking whether established facts satisfy a legal standard. Courts may review such questions under § 1252(a)(2)(D), even where underlying factual findings are unreviewable.
  • Standards of review (agency and court):
    • At the BIA (8 C.F.R. § 1003.1(d)(3)): factual findings = clear error; legal questions and application of law to facts = de novo.
    • At the court of appeals: Post‑Wilkinson, mixed questions are reviewable under § 1252(a)(2)(D). The precise level of deference can vary, but the court here did not need to decide between de novo or abuse‑of‑discretion review because the result was the same either way.
  • I‑213: A DHS “Record of Deportable/Inadmissible Alien” memorializing information from an immigration encounter. It can be used to impeach or corroborate testimony about identity or aliases.
  • “Adopt and affirm” versus independent BIA decision: If the BIA adopts the IJ’s decision, the court reviews both. If the BIA issues its own reasons without adopting, the court reviews only the BIA’s reasoning. Here, the latter applied.

Conclusion

The Fourth Circuit’s decision in Martinez‑Martinez v. Bondi sets two clear guideposts. First, courts retain jurisdiction to review the BIA’s application of § 1101(f)(6)’s false‑testimony bar—a mixed question—while factual issues like intent remain beyond judicial review, consistent with Patel and Wilkinson. Second, the BIA must honor its regulatory charge to review legal issues and applications of law to fact de novo; reviewing such issues for clear error is legal error mandating remand.

Although the court did not decide whether omissions can constitute “testimony,” its reliance on Kungys powerfully signals that the statutory bar is confined to sworn oral statements and cannot be triggered by mere concealments or failures to volunteer information. On remand, the BIA must separate and apply the correct standards to the legal and factual components of the false‑testimony analysis. The opinion thus provides a clarifying framework for adjudicating good‑moral‑character determinations in cancellation cases and reaffirms the proper contours of judicial review in the wake of recent Supreme Court guidance.

Case Details

Year: 2025
Court: Court of Appeals for the Fourth Circuit

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