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"Material Misrepresentation" for Immigration and Naturalization Purposes

The issue of what constitutes a "material misrepresentation" for both immigration and naturalization purposes was recently addressed by the Second Circuit Court of Appeals, in the case of Monter v. Gonzales, --- F.3d ---, 2005 WL 3036322, (2d Cir. Nov. 14, 2005). The following is an excerpt of the relevant portion of the Court's holding:

The Supreme Court's Definitions of "Material" and "Procure"

8 U.S.C. § 1182(a)(6)(C)(i) includes in the category of persons who are ineligible to receive visas or to be admitted to the United States "[a]ny 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." Id. And 8 U.S.C. § 1227(a)(1)(A) states that "[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable." These statutory provisions are directly applicable to administrative removal processes, such as Monter's, in which the government begins a proceeding against an alien before an IJ.

The general rule 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 decisionmaking body to which it was addressed." Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks and citation omitted). In Kungys, the Supreme Court analyzed a materiality requirement in the context of judicial denaturalization proceedings brought under 8 U.S.C. § 1451(a). It settled on the same uniform definition of "material" that is typically used in interpreting criminal statutes. The Court reasoned that "[w]hile we have before us here a statute revoking citizenship rather than imposing criminal fine or imprisonment, neither the evident objective sought to be achieved by the materiality requirement, nor the gravity of the consequences that follow from its being met, is so different as to justify adoption of a different standard." Kungys, 485 U.S. at 770; see also United States v. An Antique Platter of Gold, 184 F.3d 131, 136 (2d Cir. 1999), cert. denied sub nom. Steinhardt v. United States, 528 U.S. 1136 (2000); United States v. Wu, 419 F.3d 142, 144 (2d Cir. 2005).

Finding that a false statement was "material," however, does not end the court's inquiry. The Kungys Court observed that 8 U.S.C. § 1451(a) "plainly contains four independent requirements: 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." Kungys, 485 U.S. at 767. If a court concludes that the misrepresented or concealed fact is "material," then it must determine whether the fourth section 1451(a) requirement is met -- namely whether the applicant "procured" his or her citizenship by means of those misrepresentations or concealments. Id. at 776.

In order to satisfy this fourth part of the test, the government need not establish that "but for" the misrepresentation, the petitioner would not have achieved naturalization. Id. Instead, the Kungys Court concluded that the government's showing of "materiality" creates a presumption that the petitioner was disqualified from naturalization:"Though the 'procured by' language of the present statute cannot be read to require proof of disqualification, we think it can be read to express the notion that one who obtained his citizenship in a proceeding where he made material misrepresentations was presumably disqualified." Id. at 777 (emphases in original). The Kungys Court continued, however:

The importance of the rights at issue leads us to conclude that the naturalized citizen should be able to refute that presumption, and avoid the consequence of denaturalization, by showing, through a preponderance of the evidence, that the statutory requirement as to which the misrepresentation had a natural tendency to produce a favorable decision was in fact met.

Id. at 777 (emphasis in original). Thus, for the fourth Kungys requirement, once the government establishes "materiality," a presumption arises against -- and the burden of persuasion shifts to -- the subject of the denaturalization proceeding regarding whether he or she is statutorily "disqualified." Id. That person may refute the presumption by establishing that he or she did in fact meet the statutory qualification that the misrepresentation had a tendency to influence.

Although we have no doubt that Kungys's definition of "materiality" applies here, we cannot automatically import its rebuttable presumption and burden-shifting framework to interpret the term "procure" as used in the statute that governs Monter's case. Kungys analyzed the word "procure" for purposes of 8 U.S.C. § 1451(a), which involves denaturalization court proceedings, but Monter's petition concerns 8 U.S.C. § 1182(a)(6)(C)(i), which involves aliens' administrative applications. To be sure, both provisions are used in the same title of the United States Code in the immigration context (Title 8: "Aliens and Nationality") and are used for similar purposes. They also contain strikingly similar wording. Compare 8 U.S.C. § 1451(a) (providing for "revoking and setting aside the order admitting [a] person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation") (emphasis added), with 8 U.S.C. § 1182(a)(6)(C)(i) ("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.") (emphasis added). But the government argues that the two types of proceedings are substantially different and that the standard adopted in Kungys is appropriate only for judicial denaturalization proceedings, which involve the potential divestiture of citizenship rights, not for administrative removal proceedings, which concern only the applicant's permanent resident status. The government is correct that in Kungys, all the Justices acknowledged the drastic nature of stripping a person of United States citizenship. But the Supreme Court has also noted that in some circumstances the deportation of a permanent resident may be at least as severe.

The immediate hardship of deportation is often greater than that inflicted by denaturalization, which does not, immediately at least, result in expulsion from our shores. And many resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens.

Woodby v. INS, 385 U.S. 276, 286 (1966). Administrative deportation hearings accordingly employ the same requirements of proof by "clear, unequivocal, and convincing evidence" as do denaturalization and expatriation cases. Id.; see also Berenyi v. Immigration Dir., 385 U.S. 630, 636 (1967) ("When the Government seeks to strip a person of citizenship already acquired, or deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by 'clear, unequivocal, and convincing evidence.' . . . [T]hat status, once granted, cannot lightly be taken away . . . .") (footnotes omitted).

We therefore conclude that even though judicial denaturalization and administrative removal may be substantially different in many respects, the difference does not support divergent readings of the word "procure" as used in the phrase (1) "illegally procur[ing] . . . by concealment of a material fact or by willful misrepresentation" a certificate of naturalization, interpreted by Kungys, and the phrase (2) "seek[ing] to procure" "by fraud or willfully misrepresenting a material fact" "a visa, [or] other documentation," which governs Monter's administrative proceeding. We conclude that Kungys provides the meaning of "procure" for both statutes: "Though the 'procured by' language . . . cannot be read to require proof of disqualification, . . . it can be read to express the notion that one who obtained his citizenship [or "a visa, [or] other documentation"] in a proceeding where he made material misrepresentations was presumably disqualified." Kungys, 485 U.S. at 777 (emphases in original).

Our conclusion is largely consistent with the few other courts that have explicitly considered the application of Kungys in the administrative-removal context. In Kalejs v. INS, 10 F.3d 441 (7th Cir. 1993), cert. denied, 50 U.S. 1196 (1994), the Seventh Circuit, applying the Kungys test, stated that if the government proved that the misrepresentation was material, then it "is deemed to have established a rebuttable presumption that the person got his visa because of the misrepresentation." Id. at 446. In Solis-Muela v. INS, 13 F.3d 372 (10th Cir. 1993), even though the Tenth Circuit did not explicitly discuss Kungys's rebuttable presumption, the court stated that "[h]ad the consular officer known of [the petitioner's] conviction and sentence, he would have found him excludable." Id. at 377. Both rulings are thus compatible with our determination that where an immigration court finds that an alien has made a material misrepresentation, the IJ must also determine whether that alien has rebutted the resulting presumption that he or she would have been removable if the true facts had been known to the INS.

The government, in its supplemental letter brief, appears to embrace a similar approach. Although it urges us to apply "Chevron deference" to the BIA's definition of "materiality" and not to apply the definition adopted in Kungys, the government also states:[A] material misrepresentation is one which "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." Matter of S- and B-C-, 9 I&N Dec. [436,] 447 [(B.I.A. 1961)]. The government bears the burden of proving by clear and convincing evidence "that facts possibly justifying denial of a visa or admission to the United States would have likely been uncovered and considered but for the misrepresentation." Matter of Bosuego, 17 I&N Dec. [125,] 131 [(B.I.A. 1980)]. The burden then shifts to the alien to demonstrate that "no proper determination of inadmissibility could have been made." Id. Gov't's Ltr. Br., July 5, 2005, at 12 (emphasis added). Thus, the government appears to acknowledge that an immigration court's conclusion that an alien has made a material misrepresentation is not the end of the inquiry. We agree. Once such a finding has been made, the burden shifts to the alien, who has the opportunity to demonstrate that, on the facts accurately stated, he or she would not be removable.


10. "Denaturalization proceeding" refers to an action brought by the government in federal district court charging that an individual unlawfully became a naturalized citizen through the concealment of a material fact or by willful misrepresentation. See, e.g., United States v. Oddo, 314 F.2d 115, 116 (2d Cir.), cert. denied, 375 U.S. 833 (1963).

11. That statute reads, in pertinent part:

It shall be the duty of the United States attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any district court of the United States in the judicial district in which the naturalized citizen may reside at the time of bringing suit, for the purpose of revoking and setting aside the order admitting such person to citizenship and canceling the certificate of naturalization on the ground that such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation. . . 8 U.S.C. § 1451(a).

12. Although the Supreme Court has declined to state whether the definition of "material" in denaturalization proceedings also applies in the section 1182 context, see Fedorenko v. United States, 449 U.S. 490, 509 (1981), we think that it does. In a decision of this Court prior to Kungys, when the Supreme Court's decision in Chaunt v. United States, 364 U.S. 350 (1960), provided the prevailing definition of "material" in the denaturalization context, we noted that "[a]lthough the Supreme Court [had at that time] declined to resolve the issue of whether Chaunt's materiality test for citizenship revocation applie[d] to misrepresentations at the visa stage, all of the Courts of Appeals that [had] considered the issue [had] deem[ed] the Chaunt test applicable to misrepresentations in visa application documents." Maikovskis v. INS, 773 F.2d 435, 441 (2d Cir. 1985), cert. denied, 476 U.S. 1182 (1986) (internal citation omitted). We do not think that Maikovskis's conclusion that the standard for materiality is the same for both denaturalization and removal proceedings has been undermined by the change from Chaunt to Kungys. See also Forbes v. INS, 48 F.3d 439, 442-43 (9th Cir. 1995) (specifically applying Kungys's definition of "material" in proceedings under section 1182).

13. The Ninth Circuit, in United States v. Puerta, 982 F.2d 1297, 1303-04 (9th Cir. 1992), reviewed the Kungys decision and concluded that Justice Brennan's view of materiality, described in a concurring opinion, controls. Justice Brennan, the Ninth Circuit concluded, had "apparently viewed his opinion as a narrowing construction of Justice Scalia's opinion," and because his was the fifth vote required to establish a "controlling" standard, his view therefore represented the holding of the Court. Puerta, 982 F.2d at 1304.

While we agree with much of the Ninth Circuit's analysis, we think the dispute between Justices Brennan and Scalia concerned the proper interpretation of "procure" not "material." In other words, it involved step 4, not step 3. In Kungys, Justice Brennan wrote:

I wish to emphasize, however, that in my view a presumption of ineligibility does not arise unless the Government produces evidence sufficient to raise a fair inference that a statutory disqualifying fact actually existed. . . . Evidence that simply raises the possibility that a disqualifying fact might have existed does not entitle the Government to the benefit of a presumption that the citizen was ineligible [sic]. . . .Kungys, 485 U.S. at 783-84 (Brennan, J., concurring).

The discussion of a presumption arose only in step 4 of the Court's analysis. Thus, while Brennan's opinion may be controlling with respect to interpreting the word "procure," it in no way conflicts with the lead opinion's definition of "materiality."

14. See, e.g., Kungys, 485 U.S. at 776 (Opinion of Scalia, J.) (analyzing the statute while "[b]earing in mind the unusually high burden of proof in denaturalization cases"); id. at 783-84 (Opinion of Brennan, J.) ("[C]itizenship is a most precious right and as such should never be forfeited on the basis of mere speculation or suspicion." (citation omitted)); id. at 784 (Opinion of Stevens, J.) ("American citizenship is 'a right no less precious than life or liberty.' For the native-born citizen it is a right that is truly inalienable." (citation omitted)).