- Facts of the Case
- Matter of D-R-, 25 I&N Dec. 445, 450-51 (BIA 2011): Material Misrepresentation Analysis
- Ninth Circuit Remands on Appeal
- Matter of D-R-, 27 I&N Dec. 105, 107-115 (BIA 2017)
On April 6, 2011, the Board of Immigration Appeals (BIA) issued a published for-precedent decision in the Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (“Matter of D-R- 2011”) [PDF version]. In this decision, the Board determined that the respondent's deliberate omission from his application for refugee status of his military service in the Bosnian war was a willful misrepresentation of a material fact because it could have influenced the Government's decision to grant him refugee status.
The respondent appealed from that decision, and the United States Court of Appeals for the Ninth Circuit granted the appeal on this and one other point in an unpublished decision titled Radojkovic v. Holder, 599 Fed.Appx. 646 (Mem) [PDF version]. Specifically, the Ninth Circuit asked the Board on remand to explain whether it had intentionally not fully applied the holding of a published Ninth Circuit decision — Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) [PDF version] — on determining whether a misrepresentation is material, and if so, whether the Board thereby meant to create a new rule that would be entitled to administrative deference.
On September 14, 2017, the Board issued a second published decision in the case titled Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) (“Matter of D-R- 2017”) [PDF version]. In the second decision, the Board explicitly declined to follow Forbes and instead created a new rule regarding the interpretation of materiality based on the definition of the term “material” contained in section 212(a)(6)(C)(i) of the INA. Specifically, the new rule requires that the misrepresentation have had a “natural tendency” to influence the decision of adjudicators in the context of seeking a visa or other benefit(s) under the INA. The decision also addresses the burden of proof in this context.
In this article, we will examine both Matter of D-R- 2011 and 2017 with respect to the Board's analysis of material representation. We will incorporate by reference the facts of the case from the relevant section of our article providing an overview of both Matter of D-R- decisions [see article]. Please note that both Matter of D-R- decisions also address the interpretation of when an alien “assisted, or otherwise participated in” extrajudicial killings. Please see our full article to learn more about that analysis [see article]. Finally, the Board also dismissed a variety of claims brought by the respondent in Matter of D-R- 2011, chief among them regarding the admissibility of expert testimony and other evidence. To learn about these claims, please see our full article on that subject [see article].
To skip ahead to the new rule, please see the relevant section of this article [see section].
The respondent, a native and citizen of Bosnia and Herzegovina and a lawful permanent resident of the United States, faced two separate charges of removability. In this article, we will be focusing on the charge that he was removable under section 237(a)(1) of the Immigration and Nationality Act (INA) for having been inadmissible at the time of admission. Specifically, the Department of Homeland Security (DHS) alleged that the respondent had willfully misrepresented a material fact, as defined in section 212(a)(6)(C)(i), by omitting from his application for refugee status his service as a special police officer for the Republic Sprska, in which capacity he served as part of the Armed Forces of the Republic of Sprska during the Bosnian War.
The respondent admitted to his misrepresentation, stating that he had omitted his service on the advice of an International Organization for Migration (IOM) agent who had helped him fill out his application. 25 I&N Dec. at 449. He stated that the IOM agent had explained that including the information would lead to him being unable to procure refugee status. Id. Nevertheless, in removal proceedings, the respondent would argue that his misrepresentation was not material and therefore did not implicate section 212(a)(6)(C)(i). The Immigration Judge disagreed, determining that his misrepresentation was material and caused inadmissibility at the time of his admission. The respondent appealed to the BIA.
As we stated in the introduction, we covered the full facts of the case, including details about the respondent's service in the Bosnian War and what specifically he omitted from his application, in our introductory article on the Matter of D-R- decisions. Before continuing, please see our full discussion of the facts from Matter of D-R-, 25 I&N Dec. at 446-449 (BIA 2011), which we incorporate into this article by reference [see section].
Under section 212(a)(6)(C)(i) of the INA, an alien is inadmissible if he or she seeks to procure or has sought to procure “a visa, other documentation, or admission into the United States or other benefit provided under [the INA]” through “willful misrepresentation of a material fact.”
The respondent admitted to having made a misrepresentation by omitting the fact of his special police or military service during the Bosnian War. Accordingly, the question was whether the respondent's misrepresentation was material. Citing to the Supreme Court of the United States decision in Kungys v. United States, 485 U.S. 759, 772 (1988) [PDF version], the Board explained that “[t]he test for whether 'concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the Immigration and Naturalization Service” (note, the functions of the Immigration and Naturalization Service are now part of the DHS). The Board also cited to its own published decision in Matter of Bosuego, 17 I&N Dec. 125, 130 (BIA 1979, 1980) [PDF version], wherein it held that a misrepresentation is material when it has a tendency “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.” Finally, the Board cited to controlling precedent from the United States Court of Appeals for the Ninth Circuit in United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001) [PDF version], wherein the Ninth Circuit explained that the Government does not need to show that the statement actually influenced the agency in the adjudication.
The respondent argued that his non-disclosure of his employment as a special police officer during the Bosnian War was not a material misrepresentation. However, for the forthcoming reasons, the Board did not agree with this argument.
First, the Board noted that a Special Assistant with the Refugee Affairs Division of the United States Citizenship and Immigration Services (USCIS) who was an expert in refugee processing explained that the failure to disclose police or military service during the Bosnian War “would have prevented an appropriate line of inquiry regarding whether the applicant was barred from refugee status as a persecutor.” He added that knowledge that an applicant had served in the police or military during the Bosnian War would prompt further questioning “because of the human rights abuses that occurred during the war…” Thus, while service in the special police or military during the Bosnian War would not in and of itself be a bar on the approval of a refugee application, the omission of such service would close a line of inquiry regarding the applicant's eligibility for adjudicators.
The respondent argued that the DHS had failed to establish that, but for his misrepresentation, he would have been denied refugee status. However, citing again to Matsumaru, the Board explained that the DHS did not have to meet this “but for” standard. Instead, because the Board determined that the respondent's misrepresentation could have influenced the Government's decision in adjudication his application, “the respondent's concealment constitutes a willful misrepresentation of a material fact.”
The respondent appealed from the Board's decision in Matter of D-R- 2011 to the Ninth Circuit. The Ninth Circuit granted the respondent's petition for review, including the misrepresentation of a material fact issue, in the unpublished decision titled Radojkovic v. Holder, 599 Fed.Appx. 646 (Mem).
The Ninth Circuit explained that in its own precedent decision titled Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), it set forth a two-part inquiry for determining whether a misrepresentation is material:
- The misrepresentation must have a natural tendency to influence the decisions of the adjudicators; and
- The government must “produce evidence sufficient to raise an inference that a statutory disqualifying fact existed.”
The Ninth Circuit drew the two-part test from Kungys v. United States, 485 U.S. 759, 772, 783 (1988). It noted that the Immigration Judge had actually applied Forbes in full, determining that the government had satisfied both prongs one and two. However, the Board had only examined the case under the first prong. After concluding that the respondent's misrepresentation had a natural tendency to influence the decision to grant or deny refugee status, the Board had then failed to assess whether the DHS had offered “evidence sufficient to raise an inference that a statutory disqualifying fact existed.” However, and as we will examine in the next section, the second part of the Forbes test referenced by the Ninth Circuit derives not from the opinion of the court in Kungys, but instead from a concurring opinion.
Before the Ninth Circuit, the government argued that even if the Board's method of analysis and definition of “materiality” was different than that of the Ninth Circuit, the Board's method was entitled to administrative deference under the Supreme Court decision in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) [PDF version] and Nat'l Cable & Telecommc'ns Ass'n v. Brand X Internet Serv., 545 U.S. 967 (2005) [PDF version]. In short, the government acknowledged that because the case arose from the jurisdiction of the Ninth Circuit, the Board was bound by Ninth Circuit precedent. However, under Chevron, the Board's interpretation of an ambiguous statutory provision — such as the definition of a “material” fact — Is entitled to administrative deference from courts, provided that the interpretation is reasonable. Brand X extended Chevron to cases where an administrative agency interprets a statute differently than courts had previously.
To understand how this works, it is important to remember that the Board is an administrative body within the Department of Justice (DOJ) rather than a part of the judiciary. The government's position was that Matter of D-R- 2011 could be read as the Board giving its own definition to the ambiguous term “material,” which the Ninth Circuit would be bound to give deference to notwithstanding its decision in Forbes.
However, the Ninth Circuit stated that “[the] BIA … is entitled to deference only when it intends to issue an interpretation of a statute.” To this effect, it cited to its published decision in Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004) [PDF version]. The Ninth Circuit found that the Board's decision “fail[ed] to give [it] any hint that by omitting the second prong of the materiality definition [in Forbes] it was intentionally diverging from our precedent, as well as the standard used by the [Immigration Judge].” The Ninth Circuit stated that it was left “guessing” as to whether the Board intentionally omitted the “fair inference” prong or whether it was an oversight.
Accordingly, the Ninth Circuit remanded the case to the Board for clarification as to what its intent was in omitting the second prong of the materiality test from Forbes.
Before continuing, the Ninth Circuit placed its oral arguments for this case on YouTube. We have embedded the video below for those who are interested in watching the proceedings:
In Matter of D-R- 2017, the Board took the case for the second time on remand from the Ninth Circuit. Just as it had before the Ninth Circuit, the DHS argued that the Board was not bound by the Ninth Circuit's two-part test from Forbes. The DHS's position was that, because the term “material” in the INA is ambiguous under both Chevron and Brand X, the Board should define the term “material” because it is an administrative agency administering section 212(a)(6)(C)(i) of the INA.
The Board explained that the DHS was correct in noting that, under Chevron, appellate courts must give deference to agency interpretations of ambiguous statutory terms provided that the interpretations are reasonable. Under Brand X, appellate courts must afford deference even if the agency makes a new interpretation that is contrary to existing circuit precedent.
In the forthcoming subsections, we will analyze each part of the Board's decision and explain why it declined to follow Forbes and instead issued its own interpretation of the term “material” in the INA.
The Board explained that the term “material” is not defined in either section 212(a)(6)(C)(i) or anywhere else in the INA. In Forbes, although the Ninth Circuit offered its own interpretation, it did not find that the term “material” in the INA was unambiguous. Instead, the Ninth Circuit looked for guidance to Kungys, the Supreme Court decision that examined the term in the civil denaturalization context.
The issue in Kungys concerned section 340(a) of the INA. Under section 340(a), an individual is subject to denaturalization if he or she procured his or her certificate of naturalization and citizenship orders “illegally … or [by] concealment of a material fact or by willful misrepresentation.” At Kungys v. United States, 485 U.S. 759, 767 (1988), then Justice Antonin Scalia, writing for the Court, explained that section 340(a) contains four independent requirements for denaturalization:
- The naturalized citizen must have misrepresented or concealed some fact;
- The misrepresentation or concealment must have been willful;
- The fact must have been material; and
- The naturalized citizen must have procured citizenship as a result of the misrepresentation or concealment.
However, the Court noted that the term “material” is not defined in section 340(a). After looking to the understanding of the term “material” in statutes criminalizing false statements to public officials, Justice Scalia wrote that the “most common formulation of that understanding is that a concealment or misrepresentation is material if it 'has a natural tendency to influence, or was capable of influencing, the decision of' the decision making body to which it was addressed.” Id. at 770. The opinion of the Court did not define the term “natural tendency.”
The Board explained that the majority of the Federal circuit courts “appear to have adopted the 'natural tendency' standard from Kungys as a general standard for defining the term 'material' in a variety of contexts.” However, as we have seen in Forbes, there is less of a consensus for defining the term in the section 212(a)(6)(C)(i) context beyond the “natural tendency” standard.
The second prong of the Ninth Circuit's materiality test in Forbes involves the “fair inference” test. Although the fair inference test is drawn from Kungys, it does not derive from the opinion of the Court authored by Justice Scalia and joined by five of his colleagues. Rather, the “fair inference” test comes from Justice William Brennan's concurring opinion, which was joined by Justice John Paul Stevens. Notably, Justices Brennan and Stevens were both part of the six-Justice majority as well. Justices Brennan and Stevens accepted the “natural tendency” test, but they added a second and more stringent condition. In their view, “a presumption of ineligibility does not arise unless the Government produces evidence sufficient to raise a fair inference that a statutory disqualifying fact existed.”
The Board explained that multiple Federal circuit courts have held that the Justice Brennan's opinion, despite being a concurring opinion, was controlling with regard to 18 U.S.C. 1425(a) (criminal statute for unlawful procurement of citizenship or naturalization). However, subsequent to the Ninth Circuit's remand of In Matter of D-R- 2017, the Supreme Court issued a decision interpreting 18 U.S.C. 1425(a) titled Maslenjak v. United States, 137 S.Ct. 1918 (2017). We discuss Maslenjak in detail on site [see article].
In Maslenjak, the opinion of the Court, authored by Justice Elena Kagan, set forth a two-part test for the Government to establish that a misrepresentation regarding procurement of naturalization was material:
- The Government must “prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials … to undertake further investigation”; and
- The Government “need only establish that the investigation 'would predictably have disclosed' some legal disqualification.” Id. at 1929.
Notably, Maslenjak does not reference the “fair inference” test from the concurring opinion in Kungys. Instead, the opinion of the Court explicitly said that a stricter causal requirement for determining whether a false statement is “material” than the standard established in Maslenjak would “demand proof positive that a disqualifying fact would have been found” and as such would run contrary to the intent of Congress in crafting 18 U.S.C. 1425(a). Id. at 1930.
The Board offered two distinct reasons for declining to adopt the fair inference test from Forbes in the section 212(a)(6)(C)(i) inadmissibility context. .
First, the “fair inference” test derives from a denaturalization case. Although Forbes applied it in the inadmissibility context, the Forbes decision cited in support of the test to an earlier published Ninth Circuit decision, United States v. Puerta, 982 F.2d 1297, 1303-05 (9th Cir. 1992) [PDF version] [discussed in this article], which was a criminal denaturalization case. The Board noted that, in Forbes, the Ninth Circuit did not note in its cite to Puerta that it was using the “fair inference” test in an inadmissibility context although it was derived from a denaturalization context. Furthermore, courts have differed even as to the applicability of the “fair inference” test in the denaturalization context. For example, the Board cited to United States v. Nguyen, 829 F.3d 907, 916-17 (8th Cir. 2016) [PDF version], wherein the United States Court of Appeals for the Eighth Circuit held that the “fair inference” test in Kungys was intended to determine whether a naturalization was “procured by” a misrepresentation, not whether the misrepresentation was material.
Second, some circuit courts have declined to apply the “fair inference” test to the inadmissibility context. For example, the Board cited to the decision of the United States Court of Appeals for the First Circuit in Toribio-Chavez v. Holder, 611 F.3d 57, 64 (1st Cir. 2010) [PDF version], where the First Circuit applied only the “natural tendency” test. In a telling decision for the Board, the United States Court of Appeals for the Eleventh Circuit held explicitly in United States v. Pirela Pirela, 809 F.3d 1195, 1201 (11th Cir. 2015) [PDF version], that the “fair inference” test is not appropriate outside of the denaturalization context. significantly, the Ninth Circuit itself held in United States v. Alferahin, 433 F.3d 1148 (9th Cir. 2006) [PDF version] that the “fair inference” test was a higher standard set specifically for denaturalization cases due to the seriousness of the loss of citizenship.
The Board explained that the Supreme Court itself has not weighed in on whether its definition of the term “material” in the denaturalization context applies in the inadmissibility context. It did so expressly in Fedorenko v. United States, 449 U.S. 490, 509 (1981) [PDF version] (regarding pre-Kungys standards). However, the Board noted that the Supreme Court has cited to the “natural tendency” test from Kungys in multiple contexts, such as in Neder v. United States, 527 U.S. 1, 16 (1999) (failure to report income taxes).
The Board concluded that, in accord with both the Seventh and Eighth Circuits, the “fair inference” test applies only to determining whether an alien procured a benefit by his or her misrepresentation. The Board held that it does not apply to determining whether a misrepresentation is, in fact, material. To this effect, the Board followed its precedent from Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version], where it cited only to the “natural tendency” standard from Kungys in addressing materiality in the context of a frivolous asylum claim.
The Board declined to adopt the second prong of the Forbes test regarding “fair inference.” However, as we explained, the Ninth Circuit held that the Board would only be entitled to deference in declining to follow Forbes if it used its authority as an administrative body to define the term “material.” Accordingly, the Board exercised its authority under both Chevron and Brand X to define the term “material” in the section 212(a)(6)(C)(i) context and to apply its definition nationwide, including in cases arising in the Ninth Circuit.
The Board explained that in Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980), it had considered the definition of material in the context of the former section 212(a)(19) of the INA, which dealt with “excludability” (the concept of excludability has been since replaced by the concept of admissibility). In Matter of Bosuego, the Board concluded that the materiality requirement in former section 212(a)(19) was satisfied if one of the following was true:
- “The alien is excludable on the true facts”; or
- “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.” Id. at 127.
The first point is simple enough. If the true facts behind an alien's misrepresentation would have established the excludability of the alien, the misrepresentation would be material. The second point does not require that the true facts would have led to the alien being found to be excludable. Instead, it must only be proven that the misrepresentation (1) had the tendency to shut off a line of inquiry relevant to the alien's eligibility and (2) such an inquiry might well have resulted in a proper determination that the alien should be excluded. In short, this means that at a minimum, the Government must establish that the line of inquiry foreclosed by the alien's misrepresentation would have had the potential to lead to the determination that the alien should be excluded.
Regarding the second way of satisfying the materiality requirement, the Board required that the Government show that the facts in question “would have likely been uncovered and considered but for the misrepresentation.” Id. at 131. Once the misrepresentation was established, the Board held that the burden shifted to the alien “to establish that no proper determination of inadmissibility could have been made.” Id.
The Board noted that the Tenth Circuit looked at Kungys and Matter of Bosuego as setting two distinct standards of assessing materiality in Solis-Muela v. INS, 13 F.3d 372, 376 (10th Cir. 1993) [PDF version].
However, the Board cited to decisions of the United States Courts of Appeals for the Second Circuit (Monter v. Gonzales, 430 F.3d 546, 556-58 (2d Cir. 2005) [PDF version]) and Third Circuit (Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999) [PDF version]) read the Kungys and Matter of Bosuego together in considering materiality in the inadmissibility context. The Board also noted that the Second Circuit did not adopt the “fair inference” test for inadmissibility cases, only applying the “natural tendency” test from Kungys and the burden-shifting test from Matter of Bosuego.
The Board agreed with the Second and Third Circuits, determining that Kungys and Matter of Bosuego should be read together in considering materiality in the section 212(a)(6)(C)(i) context.
First, the Board took the position that the “tends to shut off a line of inquiry” test from Matter of Bosuego leads to the same results as the “natural tendency” test from Kungys. Accordingly, the Board adopted the “natural tendency” test from Kungys for determining whether a misrepresentation is “material” under section 212(a)(6)(C)(i). The Board stated that it will consider whether a misrepresentation “tends to shut off a line of inquiry that is relevant to the alien's admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.”
Second, the Board reaffirmed its conclusion from Matter of Bosuego, 17 I&N Dec. at 131, regarding the “burden-shifting test.” The Board stated that once the DHS meets its burden of proof the burden shifts to the alien “to establish that no proper determination of inadmissibility could have been made.”
The Board cited to Maslenjak, 137 S.Ct. at 1930 in noting that an alien should have the opportunity to rebut the Government's case.
Finally, after having defined the term “material” and clarified its rules on determining materiality in the section 212(a)(6)(C)(i) context, the Board moved to apply the new rule to the facts of the Matter of D-R- 2011.
The Board referenced again the testimony of a Special Assistant with the Refugee Affairs Division of USCIS during hearings before the Immigration Judge. To summarize, this officer, Todd Gardner, testified that the respondent's misrepresentation:
- Would have prevented an appropriate line of inquiry regarding whether he was a persecutor;
- Would have prevented further questioning; and
- Was material because refugee officers in Bosnia were trained to assess human rights issues in Bosnia with applicants.
The Board also noted that Richard Butler, a Criminal Research Specialists at the Human Rights Violater and War Crimes Unit of the then-Immigration and Customs Enforcement (ICE), testified that a refugee applicant who admitted to being a member of the police or military during the Bosnian War would have had his or her application set aside for closer review.
The respondent argued that, because serving in the army of the Republic of Sprska is not “in and of itself a ground of inadmissibility,” omitting such service from an application was not material. However, the Board rejected this argument under the natural tendency standard. For example, the Board noted that at Kungys, 485 U.S. at 774, the Supreme Court held that an alien's misrepresenting his or her true date and place of birth in a naturalization application would have a “natural tendency” to influence the decision even though there is no ground for denying naturalization based solely on where or when an alien was born.
Furthermore, the Board noted that the case against the respondent in Matter of D-R- was stronger than the case against the respondent in Matter of Bosuego. In Matter of Bosuego, the Government conceded that the respondent could not have been excluded based on the misrepresented facts alone, and the Board ruled in favor of the respondent after determining that there was no evidence in the record of “other pertinent factors” that may have influenced the decision. In the instant case, the Government provided evidence explaining exactly what facts may have been discovered had the respondent not shut off an inquiry into his service during the Bosnian War.
For these reasons, the Board concluded that the Immigration Judge was correct in finding that the respondent's misrepresentations had a “natural tendency” to influence the decision of local asylum officers. This is because, as the Board determined, the respondent's misrepresentations shut off a line of inquiry into issues relevant to his eligibility for asylum. The Board also noted that the respondent was given “ample opportunity” to cross examine the DHS's witnesses and provide his own testimony, and he still failed to establish that he would have been admissible had the facts of his Bosnian War service been exposed.
Accordingly, the Board determined that the respondent was inadmissible under section 212(a)(6)(C)(i) of the INA and removable under section 237(a)(1)(A).
In the first part of Matter of D-R-, the Board defined “materiality” in the section 212(a)(6)(C)(i) context and provided a clear test and analysis of the burden of proof for determining whether a misrepresentation was material. First, -in order for the misrepresentation to be material, it must have a “natural tendency” to influence adjudicators. It need not be shown that but for the misrepresentation, the individual would have been admissible. Second, once the DHS meets its burden, the burden shifts to the alien to show that the misrepresentation did not obscure facts that would have led to the denial of the application or benefit sought.
Inadmissibility for fraud or misrepresentation of a material fact attaches for life, and there is only a very limited waiver available. As a matter of law, it is important for aliens to be forthright in all applications and benefit requests. If an alien is charged with having misrepresented a material fact, he or she should consult with an experienced immigration attorney immediately for a case-specific assessment