U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

Feiertag, Terry Yale, Esq.

Name: ILIC, MILENKO

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

A 079-845-453

Date of this notice: 11/ 4/20 14

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.
Liebowitz, Ellen C
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Milenko Ilic, A079 845 453 (BIA Nov. 4, 2014)

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Hughes Socol Piers Resnick & Dym, Ltd.

70 West Madison St., Suite 4000
Chicago, IL 60602

, /
/
/

Decision of the Board oflmmigration Appeals

. U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 20530

Date:

File: A079 845 453 - Chicago, IL

NOV

4 2014

In re: MILENKO ILIC

REMOVAL PROCEEDINGS

APPEAL
ON BEHALF OF RESPONDENT:

Terry Yale Feiertag, Esquire

Sarah E. Zeld
Assistant Chief Counsel

ON BEHALF OF DHS:

CHARGE:
Notice: Sec.

237(a)(l)(A), I&N Act [8 U.S.C. 1227(a)(l)(A)] Inadmissible at time of entry or adjustment of status under section
212(a)(6)(C)(i), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)] Fraud or willful misrepresentation of a material fact

APPLICATION: Termination

The Department of Homeland Security (DHS) appeals the Immigration Judge's October 24,
2012, decision granting the respondent's motion to terminate proceedings. We will sustain the
appeal and remand the record to the Immigration Court.
This appeal presents questions of law and discretion, which we review de novo. 8 C.F.R.
1003.l(d)(3)(ii). The respondent is a native and citizen of Bosnia-Herzegovina. He was
admitted to the United States in 2001 as a refugee. In 2004, he adjusted his status to that of
lawful permanent resident.
In 2010, the DHS filed a Notice to Appear (NTA), alleging that the respondent procured an
immigration benefit by fraud or willful misrepresentation of a material fact because he "failed to
disclose the true extent of your past military service in your I-590 and I-485 applications."
(Exh. 1). The Immigration Judge agreed with the respondent's argument that this factual
allegation did not sufficiently inform the respondent of the nature of the charges against him
because it did not specify how the alleged failure to disclose was willful and material.
The charging document must specify "the acts or conduct alleged to be in violation of law."
Section 239(a)(l)(C) of the Act, 8 U.S.C. 1229(a)(l)(C). The factual allegations in the
charging document must be "sufficiently explicit to inform the alien in each instance what
actions were in violation of the law, and what law he violated, so as to enable him to mount a
defense." Matter of Chery and Hasan, 15 I&N Dec. 380, 381 (BIA 1975). The charging
document should contain a "concise statement of factual allegations informing the alien of the
Cite as: Milenko Ilic, A079 845 453 (BIA Nov. 4, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN

. '

'

A079 845 453

acts or conduct alleged to be in violation of the law." Matter of Ho, 12 I&N Dec. 516, 517
(BIA 1967) . It "does no more than obtain direct jurisdiction over the person of the alien and sets
in motion an inquiry" into the alien's removability. Id. at 517-18.

The present case is distinguishable from Macleod v. INS, 327 F.2d 453 (9th Cir. 1964), upon
which the respondent relies. In Macleod v. INS, the Ninth Circuit found to be inadequate a
charging document alleging that the respondent was born in the United States but was now a
citizen of Canada. The court held that the charging document needed to inform the respondent
of the factual basis upon which it was alleged he lost his United States citizenship, which in that
case was by voting in Canada. In the present case, the NTA informs the respondent of the
factual basis upon which it is alleged that he willfully misrepresented a material fact; namely, it
specifies that he failed to disclose the true .extent of his military service on two applications. The
NTA does exactly what the court in Macleod said needed to be done - it specifies the factual
basis for the charge of removability.
Accordingly, we will sustain the DHS's appeal and remand the record to the Immigration
Court for further proceedings. In the remanded proceedings, the Immigration Judge can
determine whether the evidence submitted by the DHS to prove removability is relevant and
probative, and hence admissible.
ORDER: The appeal is sustained, and the record is remanded to the Immigration Court for
further proceedings consistent with the foregoing opinion and for the entry of a new decision.

2
Cite as: Milenko Ilic, A079 845 453 (BIA Nov. 4, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

The Immigration Judge improperly required the DHS to include additional details in the
Notice to Appear, beyond a concise statement of the acts alleged to violate the law. The NTA
does not need to set forth details such as how the respondent's conduct was willful, nor describe
how the alleged failure to disclose information was material to the immigration benefits the
respondent sought. Rather, those are issues the DHS must prove to meet its burden of
establishing the respondent's removability at an evidentiary hearing. The NTA adequately
identified the conduct alleged to violate the law, namely failing to disclose the full extent of
military service on two specified applications. This allegation is not ambiguous or vague, and
fulfills the statutory requirement of specifying ''the acts or conduct" underling the charge of
removability. See section 239(a)(l)(C) of the Act.

UN ITED STATES DEPARTMENT OF JUST ICE

EXECUT IVE OF F ICE FOR IMM IGRAT ION REV IEW
UN ITED STATES IMM IGRAT ION COURT
CH ICAGO,

October 24,

A079-845-453

2012

In the Matter of

IN REMOVAL PROCEED INGS

M ILENKO IL IC
RESPONDENT

Section 237 (a) (1) (A) of the INA,

CHARGES:

as amended,

in

that at the time of entry or ad justment of

status,

you were within one or more of the

classes of aliens inadmissible by the law

existing at such time, to wit: aliens to seek to
procure, or have sought to procure, or who have
procured a visa, or other documentation, or
admission into the United States, or other
benefit provided under the Act, by fraud or by
willfully misrepresenting a material fact, under
Section 212 (a) (6) (C) (i) of the Act.

APPL ICAT IONS:

Motion to terminate proceedings.

ON BEHAL F OF RESPONDENT:
ON BEHALF OF OHS:

TERRY YALE FE IERTAG

SARAH ZELD

ORAL DEC IS ION OF THE IMM IGRAT ION JUDGE

The respondent is an adult male,

native of Bosnia-

Herzegovina as well as a citizen of that country according to

Immigrant & Refugee Appellate Center | www.irac.net

File:

ILL INO I S

the Department of Homeland Security.

Notice to Appear on June 3,

The Department issued a

2010 as a result of the respondent

Citizenship Services Branch.

See Exhibit 1.

The Department instituted proceedings on June 3,

2010.

It conceded the fact that the respondent ad justed his status of

that of a lawful permanent resident on or about July 15,
under Section 209(a) of the Act.
for citizenship,

When the respondent applied

it came to the attention of the Department of

Homeland Security or Citizenship Branch,

apparently served in the military and,
Department,

2004

that the respondent had

according to the

they believed this to be a significant enough

misrepresentation that they placed the respondent under removal

proceedings and alleged factually in the Notice to Appear,
paragraph 5,
visa,

at

that the respondent had procured his admission,

his ad justment or other documentation or benefit,

or willfully misrepresenting material facts.

his

by fraud

Specifically:

he

failed to disclose the true extent of his past military service

in his I-590 and I-485 applications.

See Exhibit 1,

paragraph

5.
The Department further indicated,
his Notice to Appear,

at paragraph 7 of

that according to Section 237(a)(1)(A) of

Not pertinent to the discussion below, the Department did file a separate Notice to Appear also on June 3, 2010.

This document appears in the record as Exhibit lA. The submission of two NTAs did draw an objection from the
respondent based on the fact that the documents were different and there were different notations between both
Exhibits 1 (the official NTA) and Exhibit lA. For purposes of this proceeding, Exhibit 1 is the Court document which
controls.

A079-845-453

October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

having filed an application for naturalization with the

the Act,

as amended,

procured,

that the respondent sought to procure or,

a visa or other documentation,

or another benefit provided by the Act by fraud

or by willfully misrepresenting a material fact,

212 (a) (6) (C) (i) of the INA.
Consequently,

under Section

See Exhibit 1.

the Department charged that the

respondent was removable pursuant to the corresponding Section

at 237 (a) (1) (A) of the INA because it was the position of the
Government that the respondent engaged in fraud or willfully
misrepresenting a material fact under Section 212 (a) (6) (C) (i) of
the Act.
At his first hearing before this judge on a status
call,

the respondent objected to the Notice to Appear because it

contained certain inaccuracies or errors.

pointed out that Exhibit lA was flawed.

The respondent had

It soon came to the

attention of this Court that lA was the document that had not
been served on this Judge,
respondent.

However,

however,

it had been served on the

the Government and the Court had the

appropriate document which controls in this case,

Exhibit 1.

which is

This nonetheless added to the respondent's concerns

that some of the charges in the instant case may not be accurate
or well supported by the law,

and consequently requested time to

file various objections to the Notice to Appear and to the

proceedings itself.

Consequently,

proceedings were continued in

order to allow the parties to submit their objections and to

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October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

United States,

or admission into the

allow the Government to submit its evidence in the case.

The parties have submitted various documents.

The

These are documents which have been submitted for identification

purposes and have been marked for identification purposes only.
After reviewing these documents,

the respondent filed various

objections and motions to bar the admission of evidence of the

documents submitted by the Government,

as well as a motion to

strike the Notice to Appear and terminate proceedings.

Exhibits 4 and 3,

filed on July 19,

On August 16,

2012,

See

2012.

the respondent filed an amended

motion to strike the Notice to Appear and terminate proceedings.

See Exhibit 6.
The next day,

on August 17,

2012,

the respondent filed

an amended motion to strike the Notice to Appear and terminate

proceedings

(identical to the one filed the day before) however,

the document was resubmitted with Exhibits A and B,

which were

inadvertently omitted from the filing the day before.

This is

Exhibit 6.
After the hearing,

which set out a briefing schedule

requiring parties to file documents with sufficient time to

allow each other to adequately respond,
on October 4,

the respondent,

again,

2012 filed a motion to grant his pending and

deemed unopposed amended motion to strike the Notice to Appear

and to terminate proceedings and his objections and motions to

A079-845-453

October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

Government's submissions are at group Exhibit 2A through I.

bar the admission into evidence of the documents submitted by

the Government.

See Exhibit 7.

This document had been

submit its documents by September 13,

2012.

The respondent h a d

submitted this motion to consider his motions t o strike and

terminate unopposed because the Government had not filed by
September 13,

2012.

On October 9,

2012,

the Department of Homeland

Security filed its opposition to the motion to bar evidence,

well as an amended motion to terminate.
On October 9,

2012,

as

See Exhibit 8.

the Department submitted a second

set of documents as part of its amended submission of

documentary evidence.

Exhibit 9 for identifica tion is

essentia lly an upda ted or "pured" copy of the documents offered

by the Department as Group Exhibit 2A through I for
identification purposes.

These documents constitute all of the

submissions by the parties in order to support their respective

motions.
It should be clear that the outset tha t the
respondent,

as is reflected in his various motions,

that proceedings are flawed.

believes

The most significant issue,

and

the issue which this Court believes to be dispositive of the

proceedings,

is whether the factual allegations in the Notice to

Appear sustained a ground of removability as charged.

words,

In other

is the respondent's sta ted misrepresenta tion as a lleged

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2012

Immigrant & Refugee Appellate Center | www.irac.net

submitted based on the Government's alleged fa ilure to timely

in the Notice to Appear "material".

are proper.

If it is not,

If it is,

then proceedings

then proceedings must be terminated.

he alleges that the

Government has failed to allege any facts which would establish

namely his alleged "failure to

the respondent's conduct,

disclose" the extent of his past military service,

was a

misrepresentation that was either willful or material as

required by law.
U. S.

759

(1988):

The respondent does cite Kungys v.

See also Garcia v.

INS,

31 F. 3d 441

U. S. ,

485

(7th Cir.

1994).
The respondent further argues that even if the
respondent failed to fully disclose his prior military service,
which he does not concede,

it does not necessarily mean that his

failure without more was a "misrepresentation" as described in

Section 212 (a) (6) (C) (i),

as that "misrepresentation" must be

material.
In assessing whether the respondent's argument has
merit,

this judge does review the Notice to Appear along with

the manner in which it was prepared.

paragraph 5,
Government,

The Notice to Appear,

indicates that the respondent,

according to the

had failed to disclose the true extent of his past

military service on his I-590 and I-485.

of the factual allegation,

It appears,

A079-845-453

by virtue

that the respondent appears to

potentially have disclosed some military service.

quite clear.

at

By the wording itself,

It is not

it appears that the

October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

According to the respondent,

Government takes issue with the fact that the respondent did not
disclose the "true extent" of his past military service.

This

disclose part of his military service,

satisfy the Government.

but perhaps not enough to

But it does appear as worded that

potentially the respondent did potentially disclose some

military service.

However,

the issue is whether the p art that

the respondent failed to disclose was "material".

Here,

the Government makes no further factual

allegations to establish how this failure to disclose the " true

extent" of his military service is m aterial to the purported
misrepresentation.

It can be material if his p ast military

service was somehow military service that involved some type of

potential atrocities.

However,

that is an open question.

is drafted at p aragraph 5 of Exhibit 1,

As it

it is not clear whether

it is material that the respondent failed to disclose the true

extent of his military service.

As the respondent argues,

we

are all left to speculate on the elements necessary to determine

what in fact the respondent failed to fully "disclose".

separate issue is whether there was actionable fraud or

misrepresentation given the wording in the Notice to Appear.
The respondent argues that the distinction is critically
important and f ailed to the Government's charge of removability
as the Board has found that an alien's silence or failure to
volunteer information does not,

in and of itself,

A079-845-453

constitute a

October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

raises an issue about whether the respondent actually did

ma terial misrepresentation for purposes of determining

inadmissibility under INA Section 212 (a) (6) (C) (i),

beca use

fraud in misrepresentation. "

1953),
420

See Matter of G-, 6 I&N Dec.

(BIA

7 I&N Dec.

superseded on other issues by M atter of F-M-,

(BIA 1957);

(FAM) 40. 63

see also 9 Foreign Affa irs Manual

N. 4. 2.
Equa lly problematic is the Government's f ailure to
allege specific facts which,

if proven,

respondent's "fa ilure to disclose",

misrepresentation",

would establish tha t the

even if found to be "a

was either willful or m a terial for purposes

of establishing removability in the United States.

In order for

the respondent's alleged failure to disclose to be "willful",

the Government must allege,

at minimum,

that the respondent was

"fully aware the nature of the information sought and knowingly,

intentionally,
facts. "

and deliberately misrepresented the m aterial

See Matter of G-G-,

Consequently,

7 I&N Dec.

161

(B IA 1956).

this Court is of the belief tha t the respondent

has meritoriously argued that point.

In addition,

the respondent points out that the

Government has failed to identify how the respondent's alleged

"failure to disclose" was "ma terial" as required by a plain
reading of INA Section 212 (a) (6) (C) (i).

The Supreme Court has

found that a false sta tement in and of itself is not enough to

prove that a misrepresentation was material.

A079-845-453

R ather,

where a

October 24,

2012

Immigrant & Refugee Appellate Center | www.irac.net

silence itself "does not establish a conscience concealment or

false statement has been made,

it must be shown to have been

predictably capable of affecting the decision-making body for it

consequently,

See Kungys v.

U. S. ,

485 U. S.

759

(1988).

And

the Government's assertion is that he allegedly

failed to disclose the true extent of his prior military service

is insufficient to make a prima facie showing that this action,
even if true,

would amount to a misrepresentation that was

"willfuln and "materialn for purposes of removability under the

INA.
Consequently,
respondent,

based on the arguments set forth by the

this Judge believes that they have merit and

consequently will terminate proceedings to the extent that the

charge has not sufficiently establish materiality for the
reasons stated in the proceeding paragraphs.

ORDER
IT IS HEREBY ORDERED that the respondent's motion to
terminate is hereby granted and proceedings are terminated.
Date:

October 24,

2012

CARLOS CUEVAS
Immigration Judge

The parties have submitted various motions as reflected at the outset. Some of these motions have attacked the

sufficiency of the evidence submitted by the Department. Some of the motions actually appeared to have merit.
However, for purposes of resolution of this matter, this Court does not believe it necessary to go through and
discuss each and every one of those objections despite the potential merit to them because proceedings and the
stated violation of the act by the respondent is not material. This resolves the entire matter. Consequently, the
objections themselves have not been discussed.

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2012

Immigrant & Refugee Appellate Center | www.irac.net

to be material.