Ousmane Savane v. Secretary United States Department of Homeland Security

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 24-3286
___________
OUSMANE SAVANE,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; DIRECTOR UNITED STATES
CITIZENSHIP AND IMMIGRATION SERVICES
PHILADELPHIA FIELD OFFICE
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:24-cv-00224)
District Judge: Honorable Wendy Beetlestone
___________
Argued on October 21, 2025
Before: HARDIMAN, FREEMAN, and CHUNG, Circuit
Judges.
(Filed: January 7, 2026)

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Timothy P. Creech [Argued]
Creech & Creech
1835 Market Street
Suite 2710
Philadelphia, PA 19103
Counsel for Appellant
Zachary A. Cardin [Argued]
Yaakov M. Roth
United States Department of Justice
Civil Division
550 11th Street NW
Washington, D.C. 20530
William C. Silvis
Michael Celone
Marie Feyche
United States Department of Justice
Office of Immigration Litigation
P.O. Box 868
Ben Franklin Station
Washington, D.C. 20044
Counsel for Appellee
____________
OPINION OF THE COURT
____________

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HARDIMAN, Circuit Judge.
Appellant Ousmane Savane was admitted to the United
States through the Diversity Visa Program. A permanent
resident since 2012, he applied in 2020 to become a naturalized
citizen. The United States Citizenship and Immigration Service
(USCIS) denied Savane’s application after determining that he
had omitted material information on his Application for
Immigrant Visa and Alien Registration when he first entered
the United States. After his administrative appeal failed,
Savane petitioned for review in the United States District Court
for the Eastern District of Pennsylvania. The District Court
granted summary judgment for the Government. In this appeal,
Savane argues that his omissions were immaterial. We disagree
and will affirm the District Court’s judgment.
I
A
The Diversity Visa Program, enacted as part of the
Immigration Act of 1990, created a lottery system to allocate
up to 55,000 immigrant visas to individuals from countries
with low rates of immigration to the United States.1 Congress
also empowered the Secretary of State to issue regulations
necessary to implement the Program.2 Those regulations
require aliens to petition to enter a lottery.3 The petition, known
as an “eDV,” requires certain biographical information,
including: “[t]he name[s], date[s] and place[s] of birth and
gender of the petitioner’s . . . child[ren], if any . . . regardless
1 8 U.S.C. §§ 1151(e), 1153(c).
2 8 U.S.C. § 1154(a)(1)(I)(ii)(III).
3 22 C.F.R. § 42.33(b).

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of whether or not they are living with the petitioner or intend
to accompany or follow to join the petitioner should the
petitioner immigrate to the United States.”4
A petitioner who is selected in the lottery must complete
an Application for Immigrant Visa and Alien Registration,
known as a DS-230.5 The DS-230 requires the names, dates,
and places of birth, and addresses of “ALL Children.”6 If a
question does not apply, the petitioner is instructed to mark
“N/A.”7 After submitting a DS-230, the “petitioner” becomes
an “applicant” and interviews with a United States consular
official in his home country.8 If approved by the consular
officer and admitted at a port of entry, the applicant attains
lawful permanent resident status.9
Lawful permanent residents, in turn, may apply for
citizenship by submitting an Application for Naturalization,
known as an N-400. Among other requirements, the applicant
must establish that he was “lawfully admitted for permanent
residence.”10 And the applicant must appear for an in-person
examination by an officer from USCIS.11 If USCIS denies the
N-400, the applicant can file an administrative appeal and
4 22 C.F.R. § 42.33(b)(1)(v).
5 22 C.F.R. § 42.63(a).
6 App. 21.
7 U.S. Dep’t of State, Form DS-230, https://perma.cc/DF2N-
7WWV (last visited Oct. 3, 2025).
8 22 C.F.R. § 42.62(a).
9 8 U.S.C. § 1202(b).
10 8 U.S.C. § 1427(a).
11 8 C.F.R. § 335.2(a).

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request a hearing.12 If that appeal fails, the alien can petition
for review in the district court where he resides.13
B
Ousmane Savane, a citizen of Cote D’Ivoire, applied to
the Diversity Visa Program in 2011. When he completed his
eDV, Savane failed to disclose that he had two children, even
though the petition required that information.14 After Savane
was selected in the lottery, he completed the DS-230 to obtain
an immigrant visa and lawful permanent residency. Where the
form required the “Names, Dates and Places of Birth, and
Addresses of ALL Children,” Savane responded “N/A.”15 He
signed the DS-230, certifying that his response to the questions
were “true and complete.”16 Savane later explained that he did
not disclose his children because the “coach”17 who helped him
complete the forms advised him for “financial reasons to go
12 8 C.F.R. § 336.2.
13 8 U.S.C. § 1421(c).
14 See 22 C.F.R. § 42.33(b)(1)(v).
15 App. 21, 82.
16 App. 81.
17 The Department of State encourages applicants to fill out the
eDV on their own, without the assistance of another—
especially a person who is being paid to assist them. App. 41.
Though the Department does not issue the same advice as to
the DS-230, applicants are warned that the content must be
certified under oath to be true and correct. App. 56. Despite
this advice, Savane submitted both the eDV and the DS-230
“through a coach” who “helped him to fill out the forms” and
submit the application. App. 73-75. He paid the coach for his
assistance and communicated with the coach mainly in French.
Savane “did not fill out anything.” App. 81.

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alone to the United States.”18 When Savane was interviewed
by a United States consular officer in Cote D’Ivoire, the officer
did not ask if Savane had children, and Savane did not disclose
that he did. Savane immigrated to the United States and
obtained lawful permanent resident status in 2012.
In October 2020, USCIS received Savane’s Application
for Naturalization (N-400). By this time, he had four children,
all of whom he disclosed. And Savane admitted on his N-400
that he had previously “given . . . U.S. government officials . . .
information or documentation that [was] false, fraudulent or
misleading.”19 But he denied that he had “ever lied to any U.S.
government officials to gain entry or admission into the United
States or to gain immigration benefits while in the United
States.”20 Savane also said that he listed his children on his N-
400 because he wanted them and his wife to immigrate to the
United States.
Savane interviewed with a USCIS officer regarding his
naturalization application. At that interview, he changed his
answer to the question: “Have you ever lied to any U.S.
government officials to gain entry or admission into the United
States or to gain immigration benefits while in the United
States?” from “No” to “Yes.”21 About a year later, USCIS
denied Savane’s application for naturalization, concluding that
he had not been lawfully admitted for permanent residence
because of his omissions on the DS-230 (the Application for
Immigrant Visa and Alien Registration). Savane then
requested review of that decision and received a hearing where
18 App. 82.
19 App. 90.
20 App. 90–91.
21 App. 6, 98–100.

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he argued that his omission was immaterial. USCIS re-
interviewed Savane and affirmed its denial of the Application
for Naturalization.
Savane petitioned for review of USCIS’s denial in the
United States District Court for the Eastern District of
Pennsylvania under 8 U.S.C. § 1421(c). The Government
moved for summary judgment, arguing that Savane could not
meet his burden to prove that he was lawfully admitted for
permanent residence.
The parties disputed whether Savane willfully
misrepresented a material fact on his DS-230. But the District
Court explained that it did not need to decide whether Savane’s
omissions were willful under 8 C.F.R. § 103.2(a)(2). “As a
textual matter,” the Court reasoned, that regulation requires
only that an alien certify that the information contained in his
application is true and correct.22 Section 103.2(a)(2) does not
mention willfulness (or any other mental state). So the District
Court explained that the relevant issue was whether Savane’s
omission of his children on his eDV and DS-230 was material.
The District Court held that Savane’s omission was
material because it “tend[ed] to shut off a line of inquiry which
[was] relevant” to his “eligibility and which might well have
resulted in a proper determination that he be excluded.”23 The
Court reasoned that had Savane disclosed his children on his
DS-230, the consular officer may “have inquired about his
children and decided—depending on Savane’s answers about
22 Savane v. Majorkas, 2024 WL 4876926, at *4 (E.D. Pa. Nov.
22, 2024).
23 Id. at *5 (quoting Saliba v. Att’y Gen. of United States, 828
F.3d 182, 190 n.7 (3d Cir. 2016)).

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whether he intended them to immigrate with him—to deny his
application.”24 The Court stressed that the standard is not
whether officials necessarily would have denied Savane’s visa
application had they known the truth, but whether the omission
tended to shut off a relevant line of inquiry. Because it
perceived no genuine dispute of material fact on that point, the
District Court granted the Government summary judgment.
II
The District Court had jurisdiction under 8 U.S.C.
§ 1421(c). We have jurisdiction under 28 U.S.C. § 1291. Our
review is de novo and we apply “the same standard the District
Court applied.”25 Summary judgment is appropriate when the
moving party shows “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”26 We “view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party’s
favor.”27
III
A
As an applicant for naturalization, Savane had to show
that he: (1) has “resided continuously, after being lawfully
admitted for permanent residence, within the United States for
24 Id.
25 Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.
2007).
26 Fed. R. Civ. P. 56(a).
27 Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist.,
587 F.3d 597, 603 (3d Cir. 2009) (citation omitted).

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at least five years . . . immediately preceding the date of filing
his application”; and (2) is “a person of good moral
character.”28 Because “the Government has a strong and
legitimate interest in ensuring that only qualified persons are
granted citizenship . . . the burden is on the alien applicant to
show his eligibility for citizenship in every respect.”29
“[D]oubts [about eligibility for citizenship] should be resolved
in favor of the United States and against the claimant.”30
In this appeal, we must decide whether Savane was
“lawfully admitted for permanent residence” when he did not
disclose his children on the DS-230. That phrase is defined as
“the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in
accordance with the immigration laws, such status not having
changed.”31 Though “this definition is somewhat circuitous,”
we have held that “a grant of permanent resident status does
not meet the standard of ‘lawful admission’ if the applicant was
not legally entitled to it for any reason.”32 So “lawful admission
28 8 U.S.C. § 1427(a).
29 Berenyi v. Dist. Dir., Immigr. & Naturalization Serv., 385
U.S. 630, 637 (1967).
30 Id. (citation modified).
31 8 U.S.C. § 1101(a)(20).
32 Koszelnik v. Sec’y of Dep’t of Homeland Sec., 828 F.3d 175,
179-80 (3d Cir. 2016) (citing Gallimore v. Att’y Gen. of United
States, 619 F.3d 216, 224 (3d Cir. 2010)).

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‘denotes compliance with substantive legal requirements, not
mere procedural regularity.’”33
Under its general regulatory authority,34 the Secretary
of Homeland Security promulgated 8 C.F.R. § 103.2(a)(2).
That regulation states: “By signing the benefit request”—here,
the DS-230—“the applicant or petitioner . . . certifies under
penalty of perjury that the benefit request, and all evidence
submitted with it, either at the time of filing or thereafter, is
true and correct.” Compliance with this substantive legal
requirement is a prerequisite to lawful admission as a
permanent resident. Koszelnik, 828 F.3d at 180. Section
103.2(a)(2) prohibits making material misstatements. Thus, for
purposes of his naturalization application and showing that he
was a “lawfully admitted for permanent residence,” Savane
was required to submit truthful material information on his DS-
230. Id. at 180, 180 n.20.
B
We turn to whether Savane violated 8 C.F.R.
§ 103.2(a)(2). He did.
The United States Court of Appeals for the Fourth
Circuit has held that because § 103.2(a)(2) requires a petitioner
to certify that all information contained in the DS-230 “is true
and correct,” a petitioner fails to meet the relevant legal
requirements for admission when material information is
omitted on his application, “regardless of whether the
33 Id. (citation omitted).
34 8 U.S.C. § 1103(a)(3).

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misrepresentation on [his] application was willful.”35 We cited
that case, Injeti v. U.S. Citizenship & Immigration Services, in
a footnote in our opinion in Koszelnik.36 There we held that an
application for lawful permanent residence failed to comply
with § 103.2(a)(2) when Koszelnik’s DS-230 contained
“material misinformation, despite [his] certification under
penalty of perjury that all the information on his application
was correct.”37 We held that Koszelnik was not lawfully
admitted for permanent residence when he omitted his
previously assigned alien registration number and that he had
been deported from the United States.38
Consistent with the Fourth Circuit’s decision in Injeti
and our opinion in Koszelnik, we now hold that the omission
of information from an application is material, contrary to the
provisions of 8 C.F.R. § 103.2(a)(2), when the omission
prevents investigation into a relevant aspect of an applicant’s
eligibility, regardless of whether the omitted information
would have led to the denial of the application.39
C
That brings us to the dispositive question in this appeal:
35 Injeti v. U.S. Citizenship & Immigr. Servs., 737 F.3d 311,
318 (4th Cir. 2013).
36 Koszelnik, 828 F.3d at 180 n.20.
37 Id. at 180.
38 Id.
39 Our concurring colleague distinguishes Savane’s case from
Koszelnik and Injeti because the petitioners there adjusted to
lawful permanent resident status under 8 U.S.C. § 1255, while
Savane sought a diversity visa pursuant to § 1153. But
Koszelnik also applied for a diversity visa under § 1153,

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whether Savane’s failure to disclose that he had children was
material. Savane appears to argue that an omission is material
only if truthful disclosure would have changed the decision of
the consular officer as to his eligibility for permanent resident
status. That argument is foreclosed by our precedent. We held
in Mwongera v. Immigration & Naturalization Services that a
statement (or omission) is material on an immigration form “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.”40
Koszelnik v. Sec’y of Dep’t of Homeland Sec., No. 13-cv-6711,
2014 WL 6471479, *1 (D.N.J. Nov. 18, 2014), and included
material untruthful information on that application. Koszelnik,
828 F.3d at 180. And Section 103.2 requires certification for
any “benefit request.” 8 C.F.R. § 103.2(a)(2).
40 187 F.3d 323, 330 (3d Cir. 1999) (citation omitted)
(emphases added); see also Kungys v. United States, 485 U.S.
759, 772 (1988) (holding that, in relation to 8 U.S.C. § 1451(a),
a concealment or misrepresentation that has “a natural
tendency to influence the decisions of the Immigration and
Naturalization Service” is material). Mwongera works hand in
glove with Kungys. See Saliba, 828 F.3d at 190 n.7. Any
omission that would render an applicant excludable on the true
facts or shut off a line of inquiry which might well have
resulted in a proper determination that the applicant be
excluded would also tend to influence the decisionmaker.
Further, we apply the same definition of materiality across INA
processes. For example, in United States v. Stelmokas, we held
that “[w]hile the procedures followed and questions asked
when an applicant seeks a visa differ from those applicable

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Savane focuses on the first prong of the Mwongera
definition—whether he was excludable on the true facts. And
he criticizes the caselaw that the District Court relied on in
applying the second prong of the materiality definition because
“none of [those] decisions engage[d] with the statutory text of
8 U.S.C. § 1153(c) or § 1182(a) to determine whether such an
omission actually impacted statutory eligibility or
inadmissibility.”41
Savane’s argument is unavailing because it
misconstrues our definition of materiality. Materiality is not a
“but for” test. There is no requirement that the petitioner would
have been inadmissible had the omitted information been
included. We agree with the Fourth Circuit: “finding that a
misrepresentation is material does not require concluding that
it necessarily would have changed the relevant decision.”42
In holding that Savane’s omission was material, the
District Court did not rely on a specific prong of the Mwongera
definition. It explained that had Savane disclosed his children
on the DS-230, “then the discrepancy between his DS-230 and
eDV would have resulted in a denial of his application for a
visa, because the State Department requires consular officers
to deny ‘applications of registrants who list on their’ DS-230
when an applicant seeks citizenship,” the Kungys test for
materiality applies to both circumstances. 100 F.3d 302, 317
(3d Cir. 1996).
41 Savane Br. 13.
42 Injeti, 737 F.3d at 316 (emphasis added) (relying on the
natural-tendency test for materiality that the Supreme Court
addressed in Kungys, 485 U.S. at 772).

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‘a spouse or child who was not included in their’ eDV.”43 It
also reasoned that because the number of diversity visas
available per year is statutorily capped by 8 U.S.C. § 1151(e),
and children are included in that cap if the petitioner chooses
to immigrate with them, Savane’s omission, at the very least,
tended to shut off a relevant line of inquiry.44
Like the District Court,45 we conclude that Savane’s
43 Savane, 2024 WL 4876926, at *5 (citing 9 Foreign Affairs
Manual § 42.33 N6.6 (2010) (citation modified)).
44 Id.
45 Savane argues that the District Court improperly treated
agency regulations and policy materials as if they were
“statutory requirements.” Savane Br. 13. He emphasizes that
“no element of [the Diversity Visa] statute made disclosure of
children relevant to a [Diversity Visa] application.” Savane Br.
10. And he contends that the Court erred in relying on 22
C.F.R. § 42.33 and the Foreign Affairs Manual. The
Department of State describes the Foreign Affairs Manual and
its associated handbooks as “a single, comprehensive, and
authoritative source for the Department’s organization
structures, policies, and procedures that govern the operations
of the State Department.” U.S. Dep’t of State, FAM Volume
Listing, https://fam.state.gov/ (last visited September 30,
2025). The FAM is intended to “convey codified information
to Department staff . . . so they can carry out their
responsibilities in accordance with statutory, executive and
Department mandates.” Id. Savane also argues that using
regulations and agency guidance to determine whether his
omission was material violates the Supreme Court’s decision
in Loper Bright Enterprises v. Raimondo because these
materials “impose a requirement on applicants that is simply

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omission was material—but for a slightly different reason.46 As
the District Court noted, Savane’s omission tended to shut off
a line of inquiry that was relevant to his eligibility for lawful
permanent resident status.47 And that line of inquiry “might
well have resulted in a proper determination that he be
excluded.”48 One statutory ground for exclusion is whether “in
the opinion of the consular officer at the time of application for
a visa … [the applicant] is likely at any time to become a public
charge.”49 In order to evaluate that question, the statute dictates
that the consular officer consider, among other factors, the
applicant’s “family status” and “assets, resources, and financial
not a statutory requirement.” Savane Br. 14. Thus, we “should
reject an extra-legislative expansion of the material
requirements of a [diversity visa petitioner].” Id. In Loper
Bright, the Supreme Court held that courts must not defer to an
agency’s interpretation of an ambiguous statute. 603 U.S. 369
(2024). But we are not interpreting an ambiguous statute in this
appeal. So Loper Bright is not applicable. We do not otherwise
address Savane’s argument regarding § 42.33 and the FAM
because his omission was material under the statute.
46 See Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 116 (3d
Cir. 2020) (“[W]e may affirm on any ground supported by the
record.”).
47 Savane, 2024 WL 4876926, at *5.
48 See Mwongera, 187 F.3d at 330 (citation omitted). The
phrase “might well have resulted in a proper determination that
he be excluded” reflects the reality that it is impossible to know
the actual impact of the omitted information when assessed at
a later time (here, thirteen years later).
49 8 U.S.C. § 1182(a)(4)(A).

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status.”50
To state the obvious, Savane’s children would have
impacted consideration of the statutory factors of family and
financial status—even if they did not immigrate to the United
States with him. Of course, it is impossible to know thirteen
years later whether the omitted information would have
resulted in a proper decision that Savane was inadmissible. But
it would be a perverse rule indeed if we were to make Savane
the beneficiary of that indeterminacy. After all, it was his
omission that deprived the consular officer of the chance to ask
whether Savane’s children required his financial support or
were cared for by a third party. Nor could the consular officer
ask whether Savane intended to remit money to his children for
their support. In sum, because Savane failed to disclose that he
had two children when he submitted his DS-230, he prevented
the consular officer from assessing his likelihood of becoming
a “public charge.” And had the consular officer determined that
Savane was likely to become a public charge, he would have
been inadmissible per the relevant statutory factors.
Finally, our conclusion is consistent with Savane’s own
explanation for his failure to disclose his children on the DS-
230. Savane stated that “coming to the United States would
require a lot of money upon approval of the application,”51 and
the “coach” who helped him fill out the DS-230
“recommended … for financial constraints or financial reasons
to go alone to the United States.”52 While Savane and his coach
may have viewed omitting his children as important in
obtaining permission to enter the United States, the omission
50 8 U.S.C. § 1182(a)(4)(B).
51 App. 74.
52 App. 82

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was also important (and, thus, material) in that it precluded the
consular officer from investigating Savane’s true and complete
financial status. And because that status might have rendered
him statutorily inadmissible, the Government was entitled to
summary judgment as to his application for naturalization.
IV
“[T]here is a clear Congressional mandate that only
applicants who demonstrate strict compliance with all of the
statutory requirements for citizenship may be naturalized.”53
Savane failed in that regard. He signed the DS-230 certifying
that the information he provided was true and correct even
though he lied about having two children. And that lie tended
to shut off a line of inquiry relevant to his eligibility—whether
he was likely to become a public charge—and had the natural
tendency to influence the consular officer, regardless of
whether his children were immigrating to the United States. In
making the misrepresentation, Savane violated 8 C.F.R.
§ 103.2(a)(2). He therefore was never a lawful permanent
resident and was ineligible for naturalization. For those
reasons, we will affirm the District Court’s summary
judgment.
53 Koszelnik, 828 F.3d at 182.

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1
FREEMAN, Circuit Judge, concurring.
I join the majority opinion insofar as it concludes
Savane made a material misrepresentation when he applied for
the diversity visa that provided him lawful permanent resident
(LPR) status. However, I would not rely on 8 C.F.R.
§ 103.2(a)(2) to resolve this appeal. In my view, that
regulation (as interpreted by the Fourth Circuit in a discussion
we have endorsed) does not give full effect to the Immigration
and Nationality Act (INA) provision governing inadmissibility
due to misrepresentations: 8 U.S.C. § 1182(a)(6)(C)(i).
Congress stated in the INA that a noncitizen is inadmissible if
he makes a material and willful misrepresentation when
applying for a benefit. By contrast, the regulation deems a
noncitizen inadmissible based on a material misrepresentation,
regardless of mental state.
However, because Savane forfeited any argument about
whether his misrepresentation was willful, I agree that we need
not address willfulness here. I concur in the judgment.
I
8 U.S.C. § 1182 is captioned “Inadmissible aliens” and
provides a list of grounds upon which noncitizens “are
ineligible to receive visas and ineligible to be admitted to the
United States.”1 One such ground is relevant to our decision
today: a noncitizen “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 provided under this chapter
is inadmissible.”2
“It is ‘a cardinal principle of statutory construction’ that
‘a statute ought, upon the whole, to be so construed that, if it
can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.’”3 Thus, absent fraud, a
noncitizen who obtained a benefit under the INA by
misrepresenting a material fact is inadmissible under
1 8 U.S.C. § 1182(a).
2 Id. § 1182(a)(6)(C)(i) (emphasis added).
3 TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting
Duncan v. Walker, 533 U.S. 167, 174 (2001)).

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2
§ 1182(a)(6)(C)(i) only if his misrepresentation was material
and willful.
II
Both parties agree that § 1182(a)(6)(C)(i) is among the
statutory provisions that govern Savane’s naturalization effort.
To apply § 1182(a)(6)(C)(i) to this case, we would need to
assess whether Savane’s misrepresentation was both material
and willful.
Rather than assessing Savane’s misrepresentation under
§ 1182(a)(6)(C)(i), the majority opinion applies a regulation.
It does so because of Koszelnik v. Secretary of Department of
Homeland Security, where we applied 8 C.F.R. § 103.2(a)(2)
and held that a noncitizen was not entitled to the LPR status he
procured by misrepresenting a material fact, regardless of
whether that misrepresentation was willful.4 Maj. Op. at 10–
11.
Respectfully, I believe this reliance on Koszelnik is
misplaced. In Koszelnik, we discounted the willfulness
requirement of § 1182(a)(6)(C)(i) and applied 8 C.F.R.
§ 103.2(a)(2) without discussion—simply citing a Fourth
Circuit opinion in a footnote.5 And the Fourth Circuit opinion
we relied on in Koszelnik differs from Savane’s case in
meaningful ways.
In Injeti v. U.S. Citizenship and Immigration Services,
the Fourth Circuit held that 8 C.F.R. § 103.2(a)(2) is a
regulatory bar on adjustments to LPR status where the
applicant provided information that was not “true and correct,”
regardless of whether the applicant acted willfully.6 To justify
its reliance on that regulation over the INA’s misrepresentation
provision, the Fourth Circuit reasoned as follows:
4 828 F.3d 175, 180 & n.20 (3d Cir. 2016) (citing Injeti v. U.S.
Citizenship & Immigr. Servs., 737 F.3d 311, 318 (4th Cir.
2013)).
5 Id.
6 Injeti, 737 F.3d at 318 (citing 8 C.F.R. § 103.2(a)(2)).

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1. Injeti adjusted to LPR status under 8 U.S.C. § 1255;7
2. Section 1255 authorizes the Attorney General to
promulgate regulations governing adjustments to
LPR status under this statutory pathway;8
3. Pursuant to that authorization, the Attorney General
promulgated 8 C.F.R. § 103.2(a)(2), which imposes
a duty on noncitizens to provide truthful and correct
information;9
4. Section 103.2(a)(2) applies to material
misrepresentations10 and does not require
willfulness;11
7 Id.
8 Id. (“[W]hile the statute governing adjustment of status
makes admissibility a prerequisite for receiving a grant of LPR
status, see 8 U.S.C. § 1255, the ultimate determination as to
whether an alien will receive that status is left to the Attorney
General ‘in his discretion and under such regulations as he
may prescribe.’” (quoting 8 U.S.C. § 1255)).
9 Id. (“One such regulation, 8 C.F.R. § 103.2(a)(2), requires the
applicant to certify that all information contained in the
application ‘is true and correct.’”).
10 Id. at 318 n.5 (reading § 103.2(a)(2) to imply a limitation to
material facts).
11 Id. at 318 (stating that § 103.2(a)(2) applies “regardless of
whether [a] misrepresentation . . . was willful” (citing In re F–
– M––, 7 I. & N. Dec. 420, 421–22 (B.I.A. 1957)). One could
question whether the Fourth Circuit’s interpretation of this
regulation comports with the text. The regulation states: “By
signing the benefit request, the applicant or petitioner . . .
certifies under penalty of perjury that the benefit request, and
all evidence submitted with it, either at the time of filing or
thereafter, is true and correct.” 8 C.F.R. § 103.2(a)(2). The
plain language of the regulation requires only that an alien
certify that the information in his application is “true and
correct,” and makes no mention of materiality or willfulness.
Id. Acknowledging the absence of a materiality term in the
text, the Injeti court nevertheless read the regulation to “imply”

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4
5. Because Injeti’s LPR status was invalid under the
regulation, there is no need to also address the
materiality of her misrepresentation under the
statute, 8 U.S.C. § 1182(a)(6)(C)(i).12
Assuming this logical chain is valid,13 it applies to our
decision in Koszelnik. After all, Koszelnik, like Injeti, adjusted
to LPR status under 8 U.S.C. § 1255.14 But the logic of Injeti
cannot apply to Savane’s case. This is because Injeti’s
reasoning is predicated entirely on § 1255—a statutory
provision inapplicable to Savane’s case.15 Although Koszelnik
and Injeti involved noncitizens who adjusted status under
a materiality limitation. Injeti, 737 F.3d at 318 n.5. But it is
far from clear why willfulness is not also implied.
Indeed, the regulation references perjury, which, under
federal law, requires a willful mental state. 18 U.S.C. § 1621
(providing that whoever (1) while under oath “willfully . . .
states or subscribes any material matter which he does not
believe to be true” or (2) in a declaration or statement under
penalty of perjury “willfully subscribes as true any material
matter which he does not believe to be true” “is guilty of
perjury”). The same is true under state law and at common
law. See United States v. Dunnigan, 507 U.S. 87, 94–95 (1993)
(noting that the federal definition of perjury under oath in
violation of 18 U.S.C. § 1621(1) mirrors state law definitions
and has its roots in the common law). So Injeti’s reliance on
BIA precedent to read willfulness out of the regulation
warrants careful scrutiny. Yet, in Koszelnik, we summarily
adopted Injeti’s statement about willfulness. Koszelnik, 828
F.3d at 180 n.20.
12 Injeti, 737 F.3d at 318 (not addressing 8 U.S.C.
§ 1182(a)(6)(C)(i), because “[a]dmissibility . . . is a necessary,
but not sufficient, condition for adjustment to LPR status” and
the Attorney General’s regulation controls the outcome).
13 But see supra n.11.
14 See Koszelnik v. Sec’y of Dep’t of Homeland Sec., No. 13-
CV-6711, 2014 WL 6471479, at *1 (D.N.J. Nov. 18, 2014)
(noting that Koszelnik applied for a diversity visa and
adjustment of status), aff’d, 828 F.3d 175 (3d Cir. 2016).
15 Injeti, 737 F.3d at 318 (relying on § 1255’s language to
justify its application of 8 C.F.R. § 103.2(a)(2) instead of 8
U.S.C. § 1182(a)(6)(C)(i).

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5
§ 1255 and obtained diversity visas under § 1153(c), Injeti (and
by extension Koszelnik) relies only on § 1255 to support the
broad grant of authority to the Attorney General. Savane did
not adjust to LPR status under § 1255; he only obtained LPR
status under U.S.C. § 1153(c). And although § 1153 authorizes
the Secretary of State to prescribe the form and content of
diversity visa applications, it does not give the Secretary
discretion to grant diversity visas under any regulations she
may promulgate.16
Because § 1153 lacks § 1255’s broad delegation of
discretion to the Executive over grants of LPR status, I am not
persuaded that the Executive can promulgate a regulation that
voids a term of a duly enacted statute. Thus, I would apply
§ 1182(a)(6)(C)(i)—including the materiality and willfulness
requirements—to assess admissibility.
Although I would consider willfulness and materiality
in future cases implicating inadmissibility under
§ 1182(a)(6)(C)(i), I agree that we do not need to do so here
because Savane’s appellate brief does not develop an argument
about willfulness.17 Therefore, I respectfully concur in the
judgment.
16 8 U.S.C. § 1153(f) refers to consular officers’ authorization
to grant diversity visas under 8 U.S.C. § 1154. In turn, § 1154
says the Secretary of State determines the form and content of
a diversity visa application. 8 U.S.C. § 1154(a)(1)(I)(iii). But
unlike § 1255, §§ 1153 and 1154 do not delegate discretion to
the Executive to determine who may obtain LPR status under
this pathway. See 8 U.S.C. § 1255(a) (providing that “[t]he
status of an alien . . . may be adjusted by the Attorney
General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent
residence” if the applicant is admissible and satisfies other
criteria (emphasis added)).
17 See In re Wettach, 811 F.3d 99, 115 (3d Cir. 2016)
(explaining that litigants forfeit arguments that they fail to
develop in an opening brief).

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