Test to determine Material Misrepresentation

From time to time, like in our previous writing, Abandonment of LPR (Green Card) Status (Part II), we discuss unpublished/non-precedential decisions of the Board of Immigration Appeals (BIA) made public thru various means. While non-precedential decisions are only binding on the parties to the case – they are nevertheless very instructive because the BIA is the highest administrative body for interpreting and applying immigration laws.

One such decision is the case Muhamad Yusuf Luwaga, A097 750 414 (BIA Dec. 12, 2014).  In Luwaga, the BIA overturned an Immigration Judge’s (IJ) ruling that the respondent (Luwaga) willfully misrepresented a material fact on his adjustment of status Form I-485 application by falsely claiming, under oath, that the signature on the application was his. More precisely – because Luwaga’s false statement under oath (that it was his signature on the application when in fact it was not) was a material misrepresentation – the IJ declared Luwaga inadmissible as there was no properly sworn Form I-485 before the court.

In sustaining Luwaga’s appeal, the BIA stated the general test for determining whether a misrepresentation is material as “whether the respondent potentially would be inadmissible or ineligible for relief under the true facts, or whether the misrepresentation would tend to cut off a line of inquiry relevant to the respondent’s eligibility for admission or relief.”  

The BIA applied this test and initially conceded as “obvious” the IJ would have inquired further had Luwaga truthfully admitted his signature did not appear on the application.

However, the BIA gave more weight to the fact no finding was made (by the IJ) that the substantive information in the application itself was false or misleading. Furthermore, the BIA found especially significant Luwaga had previously established prejudice due to ineffective assistance of his prior attorney which may have contributed to his false testimony.

Accordingly, in the absence of a finding of material misrepresentation as to substantive content, the BIA determined the identity of the signer on Luwaga’s original Form I-485 not relevant to his ultimate admissibility or eligibility for relief, particularly in the context of a substantiated claim of ineffective assistance of counsel.

Happily, it appears substance prevailed over form in this BIA ruling. Sharma Law Offices, a highly rated Atlanta immigration law firm, is available for consultation with respect to adjustment of status issues.