BIA Requests Briefs on Whether False Statements Must be "Material" to Constitute an Aggravated Felony "Involving Deceit"

On November 10, 2015, the Board of Immigration Appeals (BIA) invited [PDF version]¹ interested members of the public to submit an amicus curiae (friend of the court) brief discussing the following question:

In determining whether an offense constitutes an aggravated felony under section 101(a)(43)(M)(i) of the Act, 8 U.S.C. § 1101(a)(43)(M)(i) [PDF version], must false statements be “material” in order to find that the statute “involves deceit”? The parties may address other issues pertinent to the case.

Section 101(a)(43)(M)(i) includes in the list of immigration aggravated felonies [see article] any offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 [see section].”²

In discussing 18 U.S.C. 1101 (note that this is not an immigration statute, please see footnote 3),³ the Department of Justice Criminal Resource Manual [PDF version]⁴ cites a 1956 decision by the D.C. Circuit, Weinstock v. United States [PDF version],⁵ for the test commonly used to determine whether something is material:

To be 'material' means to have probative weight, i.e., reasonably likely to influence the tribunal in making a decision required to be made. A statement may be relevant but not material.

The BIA is seeking input relevant to the following issue: In determining whether an alien had previously been found to have committed an immigration aggravated felony “involving deceit” in which loss to the victim(s) exceeded $10,000, may the BIA consider evidence of “false statements” shown to have been uttered in a criminal case only if those statements were not only relevant⁶ but also material in that case, in that the statements were likely to have influenced the tribunal's decision?

If so, this will limit the reach of the “involves deceit” provision of section 101(a)(43)(M)(i). If not, false statements that did not influence the outcome of a criminal case could be considered in determining whether the conviction in such a case constitutes an immigration aggravated felony “involving deceit.”

I will update the blog once the BIA reaches a decision on this issue.

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1. Amicus Invitation No. 15-11-10 (BIA 2015)
2. In footnote 1 of the BIA's unpublished decision in Matter of Filberto Hernandez-Valencia 2007 WL 2825200 (BIA), the BIA cited Black's Law Dictionary for definitions of “fraud” and “deceit” in the statute. The definition of “fraud” it cited was “a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment” and “deceit” as “the act of intentionally giving a false impression.” (citing Black's Law Dictionary 413, 670 (7th ed. 1999). Although this decision is not precedent and whether deceit requires “materiality” was not the question in this case, the definition the BIA relied upon her did not require that deceit involve “false statements,” involve a “material fact.”
3. This statute contains federal laws against knowingly and willfully obfuscating material facts in U.S. government proceedings. It is important to note that the BIA did not mention
4. USAM 9-42.001 § 911. Materiality
5. Weinstock v. United States, 231 F. 2d 699 (D.C. Cir. 1956); see also U.S. v. Gaudin, 515 U.S. 506, 521-22 (1995) [material false statement must be presented to jury]
6. “Relevancy” is a concept that is defined in § 411 of the Federal Rules of Evidence (FRE) as evidence that has “any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” However, being relevant does not necessarily mean that the evidence is material.