Immigration Law Wiki
MISREPRESENTATION
What is a Misrepresentation?
A misrepresentation is a statement that “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.”
Inadmissibility for Fraud or Willful Misrepresentation
212(a)(6)(C) Misrepresentation
(i) In general
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 provided under this chapter is inadmissible.
Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version]
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.”
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.
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-.
In this case 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:
1. Would have prevented an appropriate line of inquiry regarding whether he was a persecutor;
2. Would have prevented further questioning; and
3. Was material because refugee officers in Bosnia were trained to assess human rights issues in Bosnia with applicants.
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).
Matter of Bosuego
Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980)
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:
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.” Id. at 127.
OTHER CASES
Matter of O-M-O-, 28 I&N Dec. 191, 196 (BIA 2021)
Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017)
Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case
Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version]
Monter v. Gonzales, 430 F.3d 546, 556-58 (2d Cir. 2005) [PDF version])
See also Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999) [PDF version])
