Jovo Asentic v. Jefferson B. Sessions III
873 F.3d 974
| 7th Cir. | 2017Background
- Jovo Asentic, a Bosnian Serb, obtained refugee status and later permanent residence in the U.S. after emigrating in 2000; he omitted service in the Bosnian Serb Army (VRS) from his refugee and adjustment applications.
- An IOM agent allegedly advised Asentic to omit his wartime VRS service; Asentic later admitted in a sworn 2006 interview that he served in the Zvornik Infantry Brigade and held a junior leadership role through 1996.
- ICE investigators compared refugee applications with VRS records; Asentic was charged with removability for willfully failing to disclose material information and contested removability.
- An immigration judge found Asentic removable for fraud but eligible for a discretionary waiver under 8 U.S.C. § 1227(a)(1)(H); the judge denied the waiver as a matter of discretion despite crediting Asentic’s testimony that he did not participate in genocide.
- The Board of Immigration Appeals affirmed removability (finding the omission willful and material) and upheld the denial of the discretionary waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Asentic committed fraud rendering him inadmissible/removable under 8 U.S.C. § 1182(a)(6)(C)(i) and § 1227(a)(1)(A) | Omission not willful or misleading because IOM agent instructed him to omit and conscription was common knowledge | Omission was a deliberate, voluntary concealment of VRS service that was material and procured immigration benefits | Board’s finding of fraud/removability affirmed: omission was a willful, material misrepresentation that procured benefits |
| Whether the omission was willful given IOM agent’s advice | IOM induced omission; thus not voluntary | Asentic admitted he knew nondisclosure was unlawful and intentionally omitted service to gain refugee status | Willfulness established based on Asentic’s admissions; agent’s advice does not negate voluntariness |
| Whether the omission was material | Omission immaterial because IOM knew conscription was universal and could have investigated regardless | A truthful disclosure would likely have prompted further inquiry; materiality satisfied if it could influence decisions | Materiality satisfied: truthful disclosure would have prompted further inquiry; omission had natural tendency to influence outcome |
| Whether denial of discretionary waiver under 8 U.S.C. § 1227(a)(1)(H) is judicially reviewable and whether denial was improper | Asentic argued the Board misweighed equities and should have granted the waiver | Government argued denial was discretionary and not reviewable | Court lacks jurisdiction to review the Board’s discretionary denial of the § 1227(a)(1)(H) waiver; that portion of the petition dismissed |
Key Cases Cited
- Delgado-Arteaga v. Sessions, 856 F.3d 1109 (7th Cir. 2017) (standard for reviewing BIA adopting and supplementing IJ analysis)
- Yuan v. Lynch, 827 F.3d 648 (7th Cir. 2016) (review limited to Board decision when it issues standalone ruling)
- Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007) (same principle on scope of review)
- Kalejs v. I.N.S., 10 F.3d 441 (7th Cir. 1993) (elements and materiality standard for immigration fraud)
- Atunnise v. Mukasey, 523 F.3d 830 (7th Cir. 2008) (elements of fraud must be proven by clear and convincing evidence)
- Habib v. Lynch, 787 F.3d 826 (7th Cir. 2015) (presumption that a material misrepresentation procured an immigration benefit)
- United States v. Latchin, 554 F.3d 709 (7th Cir. 2009) (materiality does not require showing that truthful disclosure would have resulted in exclusion)