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Matthew Kolken on Deportation And Removal

BIA: Willful Omission may be construed as a Misrepresentation

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The Board of Immigration Appeals (BIA) has just issued a decision that affirms an IJ's finding that a deliberate omission on a refugee application may constitute a willful misrepresentation of a material fact.  See Matter of D-R-, 25 I&N Dec. 445 (BIA 2011).


The following is the Board's ruling:



(1) The respondent's deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government's decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.


(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon's active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situated had been executed nearby several days earlier.


(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent's account where other plausible views of the evidence are supported by the record.


(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.


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