M-C-C

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 (BIA 2026)                                Interim Decision #4157




                       Matter of M-C-C-, Respondent
                      Decided by Board December 2, 2025 1
                           U.S. Department of Justice
                    Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) The respondent willfully misrepresented a material fact by omitting reference to his
   military service during the Bosnian War on his refugee application because the omission
   cut off a line of inquiry that predictably would have disclosed facts relevant to his
   eligibility for refugee status.
(2) The respondent did not warrant a discretionary grant of a fraud waiver under section
   237(a)(1)(H) of the Immigration and Nationality Act, 

(a)(1)(H) (2024),
   based on his repeated and long-term misrepresentations regarding his military service
   during the Bosnian War and his lack of remorse.
FOR THE RESPONDENT: Milva V. Lehm, Esquire, Phoenix, Arizona
FOR THE DEPARTMENT OF HOMELAND SECURITY:                          Jennifer Wiles, Senior
Attorney
BEFORE: Board Panel: MALPHRUS, Chief Appellate Immigration Judge; MULLANE,
Appellate Immigration Judge. Concurring and Dissenting Opinion: MCCLOSKEY,
Temporary Appellate Immigration Judge.
MULLANE, Appellate Immigration Judge:


    The parties have filed cross-appeals with this Board. See Lopez v.
Garland, 

, 1212–13 (9th Cir. 2023). The respondent, a native
of the former Republic of Yugoslavia and citizen of Bosnia-Herzegovina,
appeals from the Immigration Judge’s June 28, 2013, decision sustaining the
charge of removability under section 237(a)(1)(A) of the Immigration
and Nationality Act (“INA”), 

(a)(1)(A) (2012). The
Department of Homeland Security (“DHS”) appeals the Immigration Judge’s
March 13, 2019, decision granting the respondent’s request for a
waiver of inadmissibility under section 237(a)(1)(H) of the INA,


1
    Pursuant to Order No. 6580-2026, dated January 9, 2026, the Attorney General
designated the Board’s decision in Matter of M-C-C- (BIA Dec. 2, 2025), as precedent in
all proceedings involving the same issue or issues. See 

(g)(3) (2025).
Editorial changes have been made consistent with the designation of the case as a
precedent.

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(a)(1)(H). 2 The parties’ respective motions to increase the
page limit are granted. The respondent’s motion to accept the reply brief is
granted. The respondent’s appeal will be dismissed. The DHS’ appeal will
be sustained, and the respondent will be ordered removed from the
United States.

    The background of these proceedings involves the Bosnian War, which
“was a civil conflict arising from the dissolution of the former Yugoslavia.”
Matter of D-R-, 

 (BIA 2011), remanded on other
grounds sub nom. Radojkovic v. Holder, 

 (9th Cir. 2015).
“It was fought from 1991 to 1995 between the ethnic Serb-dominated
Republic of Srpska and the Federation of Bosnia-Herzegovina, which was
dominated by Bosnian Muslims.” 

 The Republic of Srpska’s military
during this conflict was called the Vojna Republika Srpska (“VRS”). It is
undisputed that the respondent served in the VRS during the Bosnian War
and did not include this information in documents relating to derivative
refugee status and adjustment of status.

    The respondent entered the United States in 1998 as a derivative refugee
on his wife’s refugee application. In 2001, his status was adjusted to that of
a lawful permanent resident, retroactive to his refugee admission date. DHS
later placed the respondent in removal proceedings, charging him with
removability under section 237(a)(1)(A) of the INA, 8 U.S.C
§ 1227(a)(1)(A), alleging that he was inadmissible at the time of entry or
adjustment of status for being an 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 [the INA].” INA § 212(a)(6)(C)(i),

(a)(6)(C)(i) (2024). DHS also alleged that the respondent
was inadmissible at the time of entry or adjustment of status for lacking the
documents required under section 212(a)(7)(A)(i)(I) of the INA, 

(a)(7)(A)(i)(I). While DHS amended its specific allegations several
times, the basis for these allegations was that the respondent misrepresented
1) his VRS service during the Bosnian War, including during the
1995 Srebrenica massacre, and 2) his residence in Bosnia at the time he
completed his derivative refugee forms.

   After several extensive hearings, the Immigration Judge issued a detailed
decision finding the respondent removable on the allegations relating to


2
   The Immigration Judge incorporated the earlier 2013 decision into the 2019 decision by
reference.
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military service. 3 In a subsequent decision, the Immigration Judge granted
the respondent’s request for a waiver under section 237(a)(1)(H) of the INA,

(a)(1)(H).

   The Immigration Judge’s first decision ably summarizes the voluminous
evidence of record, and we recount relevant portions for the sake of clarity.
The parties do not meaningfully contest the historical background of the
Srebrenica genocide, where VRS forces in July 1995 killed thousands of
Bosnian Muslim men and boys while forcibly expelling thousands of women
and children from the Srebrenica area. The parties, however, do contest the
respondent’s role in this massacre.

    DHS presented evidence that the respondent served in the Seventh
Infantry Battalion, Fourth Infantry Company of the First Zvornik Infantry
Brigade on or about July 1995. In July 1995, the Seventh Battalion was
located directly west of the town of Zvornik. During this time, a column of
Bosnian Muslims would have engaged the Seventh Battalion and other VRS
units as they tried to escape Srebrenica. A DHS expert testified that the
Seventh Battalion would have seen significant combat and engaged in sweep
operations. Vehicle records for the Seventh Battalion reflect that Bosnian
Muslim prisoners were transported but were never later accounted for. That
expert stated there was broad evidence that Bosnia Muslims were summarily
executed wherever they were found. However, this expert did not know the
respondent’s precise role.

    This expert elsewhere categorized three groups of persons who did not
disclose their VRS service. The first group are a select few who had a direct
role in criminal acts. The second group are individuals who aided and abetted
persecutory acts, such as assisting in the separation or burial of victims. The
third and most common group were those who, at a minimum, did not
disclose their military service because they believed such disclosure would
result in the denial of their applications.

    The respondent testified that during the events of July 1995, he was
providing rear defense in a trench. He denied having any contact with
Bosnian Muslims during this time and denied hearing anything about the
atrocities in and around Srebrenica at that time, although he learned about
them later. He claims to have only fired his rifle to shoot at animals. The
respondent’s expert agreed that parts of the Seventh Battalion of the First
3
   The Immigration Judge found that the respondent’s misrepresentations about his
residence in Bosnia were not material, as they would not disqualify him from derivative
refugee status. DHS has not appealed this particular conclusion but does not concede that
the misrepresentations were nonmaterial.
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Zvornik Infantry Brigade were involved in combat operations and sweep
operations to find Bosnian Muslims. That expert also opined that the
respondent’s account of manning a defensive trench was consistent with the
tactical situation of the time, as there were fears that the Bosniak army facing
the Zvornik brigade would conduct offensive operations against them. The
respondent’s expert also opined that the respondent (based on the
respondent’s testimony) would not have been involved in war crimes such as
the guarding, transportation, mistreatment, burial, or reburial of Bosnian
Muslims.

    On appeal, the respondent argues that the Immigration Judge erred in
finding him removable as charged. DHS argues that the Immigration Judge
clearly erred in finding the respondent testified credibly. DHS further argues
that the respondent is neither statutorily eligible for a section 237(a)(1)(H)
waiver nor warrants a grant of a waiver in the exercise of discretion.

    We first address the respondent’s removability. In determining whether
an alien’s misrepresentation is “material” under section 212(a)(6)(C)(i) of
the INA, 

(a)(6)(C)(i), we apply the “natural tendency” test,
which is drawn from the Supreme Court’s decision in Kungys v.
United States, 

 (1988). Matter of D-R-, 

(BIA 2017) (“Matter of D-R- II”). “Specifically, we will consider whether
the misrepresentation tends to shut off a line of inquiry that is relevant to the
alien’s admissibility and that would predictably have disclosed other facts
relevant to his or her eligibility for a visa, other documentation, or admission
to the United States.” 

   The Immigration Judge found that the respondent’s omission of service in
the VRS during the Bosnian War was a material omission. We affirm this
determination of materiality for the reasons stated in the decision. The
Immigration Judge did not clearly err in crediting expert testimony that
refugee and adjustment of status adjudicators were trained to look for prior
military service—particularly military service during the Bosnian War. See

(d)(3)(i) (2025). The Immigration Judge found an
admission of military service would open a line of inquiry about the nature
of that military service and that such additional inquiry could lead to a variety
of outcomes, from finding that no bar applied to an affirmative finding that
the applicant engaged in persecution, extrajudicial killing, or genocide. The
omission of such service thus cuts off a line of inquiry that predictably would
have disclosed relevant facts.

   The respondent on appeal argues extensively that his omission cannot be
material because he was never ineligible for refugee status or adjustment of
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status in light of the true facts he claimed to have established. Materiality
can be satisfied if “the alien is excludable on the true facts.” Matter of
Bosuego, 

 (BIA 1979, 1980). However, this theory is
not the exclusive method of establishing materiality. The Immigration
Judge’s reasoning persuasively shows how the respondent’s omission shut
off a line of inquiry that would “predictably have disclosed other facts
relevant to his . . . eligibility for a visa, other documentation, or admission to
the United States.” Matter of D-R- II, 

; see also Matter of
Bosuego, 

 (holding that a misrepresentation is material if
it tends to shut off a relevant line of inquiry that might have altered the
outcome of the proceeding).

    This determination, however, does not end the inquiry. In Matter of
D-R- II, we reaffirmed our determination “that after the DHS meets its
burden of proof, the burden shifts to the alien ‘to establish that no proper
determination of inadmissibility could have been made.” 

(quoting Matter of Bosuego, 

). The Immigration Judge
found that the respondent did not satisfy this standard. In so deciding, he
found no need to question the respondent’s credibility or sincerity. The
Immigration Judge found that the record was ambiguous as to whether the
respondent’s VRS service would have disqualified him from refugee status.
According to the Immigration Judge, the respondent could not carry his
burden of proof on this ambiguous record. We agree with this reasoning and
affirm it. We thus will dismiss the respondent’s appeal.

   We next turn to DHS’ arguments about the respondent’s credibility. In
his initial decision, which addressed removability and the respondent’s
2012 testimony about his VRS service, the Immigration Judge did not make
an explicit credibility finding and found it unnecessary to question the
respondent’s credibility. In his second decision, which addressed the relief
from removal and the respondent’s testimony about his life and family in the
United States, the Immigration Judge made a positive credibility finding.
However, in this second decision, the Immigration Judge found it more likely
than not that the respondent was not involved in any crimes in the area of
Zvornik. Specifically, the Immigration Judge cited expert opinion that the
respondent was not involved in any crimes near Zvornik, an opinion which
was premised on the credibility, accuracy, and persuasiveness of the
respondent’s own testimony. The Immigration Judge further stated that the
respondent credibly testified about not participating in genocide.

    Even if we assume that the Immigration Judge made a positive credibility
finding about the respondent’s 2012 testimony, we need not reach the
relatively narrow question of whether that finding is clearly erroneous. See
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INS v. Bagamasbad, 

 (1976) (“As a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.”). We assume that the respondent’s
2012 and 2019 testimony was credible.

    Regarding the respondent’s request for a section 237(a)(1)(H) waiver,
DHS raises several arguments regarding the respondent’s statutory
eligibility. However, we need not rule on these arguments. See 

 Under
de novo review, even if statutorily eligible, the respondent does not warrant
this waiver as a matter of discretion. See 

(d)(3)(ii).

    In exercising discretion under section 237(a)(1)(H) of the INA, 

(a)(1)(H), we are not limited in the factors that we may consider in
determining whether relief should be granted. See INS v. Yueh-Shaio Yang,

 (1996); Matter of Tijam, 

 (BIA 1998).
“[W]hether to exercise discretion favorably necessitates a balancing of an
alien’s undesirability as a permanent resident with the social and humane
considerations present . . . .” Matter of Tijam, 

. Adverse
factors that may be considered include “the nature and underlying
circumstances of the fraud or misrepresentation involved; the nature,
seriousness, and recency of any criminal record; and any other additional
evidence of the alien’s bad character or undesirability as a lawful permanent
resident.” 

; see also 

 (holding that the statute was intended
to afford relief to an alien whose equities outweighed both the initial fraud
and other fraud arising from that initial fraud). Favorable factors include
“family ties in the United States; residence of a long duration in this country,
particularly where it commenced when the alien was young; evidence of
hardship to the alien or his family if deportation occurs; a stable employment
history; the existence of property or business ties; evidence of value and
service to the community; and other evidence of the alien’s good character.”

 at 412–13.

    Even if the respondent’s 2012 testimony were credible, there is no dispute
that the respondent made numerous misrepresentations about his VRS
service and wartime residency. These misrepresentations occurred in his
derivative refugee application. They were made under oath during his
refugee interview. They also occurred in his adjustment of status application.
He continued to obscure and misrepresent his wartime experience during his
subsequent interviews with investigators.

   These misrepresentations occurred over many years and numerous
forums. “Truthful testimony and disclosures are critical” to the operation of
immigration laws, and there is a fundamental duty to tell the truth.
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Matter of Gomez-Beltran, 

 (BIA 2016). The
respondent admitted that he knowingly excluded his VRS service in his
derivative refugee application because he thought he would not have been
able to move to the United States if he included it. This lengthy history of
dishonesty plainly cuts against the respondent’s claim for a discretionary
waiver.

    When confronted with the VRS service that he did not disclose, the
respondent then repeatedly tended to obscure or minimize that service.
When interviewed in 2005 after his arrest on immigration charges, the
respondent was confronted with evidence of his VRS service, but he said that
he did not remember in which military he served. The respondent
untruthfully said that his service lasted 3 years, ending before the Srebrenica
massacre occurred. The respondent was more forthcoming during his
2012 testimony, but that testimony occurred only after DHS presented
extensive documentation and expert testimony disclosing the respondent’s
true service in the VRS.

    The respondent also testified that he held no rank in the VRS. However,
this is inconsistent with independent evidence contained in the record. DHS
presented multiple VRS documents indicating the respondent was, in fact, a
corporal. These rosters were used throughout the war, undercutting the
respondent’s testimony that they merely contained leftover information from
when he served in the Yugoslavian Army. Ultimately, even if this testimony
was credible, in that the respondent subjectively believed by 2012 that he
held no rank, such testimony is not sufficiently persuasive in light of the
conflicting documentary evidence. Cf. Garland v. Ming Dai, 

 (2021) (“It’s not always the case that credibility equals factual accuracy,
nor does it guarantee a legal victory.”). It also does not inure to the
respondent’s benefit in the discretionary context when assessing the nature
of his misrepresentations and his explanations for them.

    Significant aspects of the respondent’s claim are not persuasive. The
respondent told DHS agents in 2005 that he did not know about the
Srebrenica massacre. He gave cursory and evasive statements to DHS
officials, noting that some people say one thing and some people say another
and whatever happened in Srebrenica happened there. He stated that he was
unaware that thousands were killed or that the VRS was responsible for the
massacre. He testified in 2012 that he was not familiar with the Srebrenica
massacre and only learned about it later from media sources. He denied any
personal knowledge of war crimes during this time.


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    The DHS’ expert testified that by July 12, 1995, it was becoming
common knowledge that prisoners would be executed. Moreover, people
began turning a blind eye to opportunistic killings. As the killings increased,
so too did the circle of knowledge of such killings. As noted, portions of the
respondents’ battalion were involved in significant combat operations and
sweep operations. VRS leadership was unable to limit the spread of news of
the killings, as killing thousands and forcibly dispelling more takes
significant manpower demands. The respondent’s testimony that he
remained in a trench shooting at animals, all while remaining ignorant of the
nearby murder and ethnic cleansing of thousands of Bosnian Muslims (some
of which was committed by comrades in the same battalion), is unpersuasive
at best. His statements years later still downplaying his knowledge of a
highly publicized and notorious massacre and genocide are flatly
unpersuasive.

    The respondent also misrepresented his wartime residency. While the
Immigration Judge found that this misrepresentation was not material, it
remains relevant in measuring the nature of the misrepresentation for
discretionary purposes. On both his derivative refugee application and
adjustment of status application, the respondent omitted his residence in
Bosnia from 1992 to approximately 1996. In his derivative refugee
application, he untruthfully said he was displaced from Bosnia in 1992.

    The respondent testified that he lived in Sepak, Bosnia from 1992 until
approximately 1993. VRS records reflect that he lived there for the entire
war. At some point in 1993, the respondent’s family moved to Serbia, but
the respondent would cross back and forth between Bosnia and Serbia.

    The respondent also invoked his Fifth Amendment right against
self-incrimination during his testimony regarding questions relating to the
content of his derivative refugee and adjustment of status applications and
the process in which they were acquired. Standing mute when asked highly
relevant questions about possible involvement in a genocide can warrant an
adverse inference. See Gutierrez v. Holder, 

(9th Cir. 2011); United States ex rel. Bilokumsky v. Tod, 

(1923) (“There is no provision which forbids drawing an adverse inference
from the fact of standing mute.”). We draw an adverse inference in the
context of our discretionary judgment. Such an inference is appropriate here,
given the respondent’s years-long history of denying and then minimizing
his VRS service. These falsehoods were made repeatedly in the context of
seeking immigration benefits, and a subsequent invocation of the
Fifth Amendment should not inure to the respondent’s benefit in assessing

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whether he warrants the administrative grace of a discretionary grant of a
section 237(a)(1)(H) waiver.

    Here, the respondent’s repeated and long-term misrepresentations
concealed the respondent’s involvement in an armed force that committed a
notorious massacre and ethnic cleansing of Bosnian Muslims. They are a
significant negative discretionary factor, and the Immigration Judge did not
sufficiently account for it. Even if the respondent’s later testimony was
credible, it does not necessarily follow that the respondent warrants a grant
of administrative grace. The respondent should have fully disclosed his past
so that immigration officers could have evaluated at the outset a claim that
involves service in the VRS.

    We also note that the Immigration Judge did not find that the respondent
was remorseful. The respondent’s appellate arguments do not mention any
remorse as a positive factor. The respondent has not contested that he made
misrepresentations (but does contest their materiality). The insufficient
evidence regarding remorse for these misrepresentations is a negative
discretionary factor. 4

    We have considered the respondent’s substantial positive equites,
including the credible 2019 testimony about his life and family in the
United States. We give full weight to the respondent’s longtime residence,
family ties, assets, and employment in the United States. The respondent is
also elderly, which might cause additional hardship upon his removal. While
the interests of family unity are important, the respondent’s
misrepresentations about his VRS service (in the context of notorious war
crimes and genocide) ultimately outweigh the positive equities. 5
See generally Reid v. INS, 

 (1975) (discussing a fraud
waiver under former section 241(f) of the INA, 

(f) (1970),
and noting that the waiver was limited to aliens “whose fraud was of such a
nature that it was more than counter-balanced by after-acquired family ties”).
Accordingly, the following orders will be entered.

    ORDER: The respondent’s appeal is dismissed.



4
   Even if the respondent is presently remorseful, we would still deny the application in
discretion, as that remorse is insufficient to tip the discretionary balance.
5
   Even if we assume that the respondent was not involved in these atrocities, it does not
follow that he warrants a section 237(a)(1)(H) waiver in light of his misrepresentations.
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  FURTHER ORDER: The DHS’ appeal is sustained, and the
Immigration Judge’s March 13, 2019, decision is vacated.

   FURTHER ORDER: The respondent is ordered removed from the
United States to Bosnia-Herzegovina.

   NOTICE: If a respondent is subject to a final order of removal and
willfully fails or refuses to depart from the United States pursuant to the
order, to make timely application in good faith for travel or other documents
necessary to depart the United States, or to present himself or herself at the
time and place required for removal by the Department of Homeland
Security, or conspires to or takes any action designed to prevent or hamper
the respondent’s departure pursuant to the order of removal, the respondent
shall be subject to a civil monetary penalty of up to $998 for each day the
respondent is in violation. See INA § 274D, 8 U.S.C. § 1324d (2024);

(b)(14) (2025). Further, any respondent that has been
denied admission to, removed from, or has departed the United States while
an order of exclusion, deportation, or removal is outstanding and thereafter
enters, attempts to enter, or is at any time found in the United States shall be
fined or imprisoned not more than two years, or both. See INA § 276(a),

(a) (2024).


CONCURRING AND DISSENTING OPINION:                      Paul A. McCloskey,
Temporary Appellate Immigration Judge

    I respectfully concur in the majority’s result. However, I would reach the
issue of credibility and find that the respondent was not a credible witness in
2012. “It has been held that ‘[a] finding is “clearly erroneous” when although
there is evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been
committed.’” Matter of R-S-H-, 

, 637 (BIA 2003) (quoting
United States v. U.S. Gypsum Co., 

 (1948)). We may not
overturn a factual finding merely because we would have weighed the
evidence differently or decided the facts differently had we been the
factfinder. Id..

    The Immigration Judge did not give any reasoning as to why the
respondent’s 2012 testimony was credible. He did not expressly weigh the
numerous factors that undercut the respondent’s credibility. It is well
established that an Immigration Judge must provide “provide specific and
cogent reasons” to support a credibility finding.” Shrestha v. Holder,

 (9th Cir. 2010) (citation omitted).
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    To find the respondent’s 2012 testimony credible, I would have to dismiss
all his prior misrepresentations and minimizations of service in the Zvornik
Brigade and accept that he finally told the full truth in 2012, despite his
refusal to respond to relevant questions regarding those same
misrepresentations. I would have to accept his claim that he was a
low-ranking conscript, despite documentary evidence that he was a corporal.
I would have to accept his claim that he was in a defensive position
completely unrelated to the nearby atrocities, despite evidence that his
battalion was involved in those atrocities. And, I would have to accept that
the respondent’s repeated lies about his service in the Bosnian War, or even
his presence in Bosnia at the time, were unrelated to any act that the
respondent participated in or observed. Thus, I would have to make every
inference in the respondent’s favor, all while discounting or minimizing
contrary evidence and while the respondent refuses to respond to questions
regarding his many misrepresentations. I do not have the confidence to make
such inferences, and I have no confidence in the persuasiveness of the
respondent’s testimony. Under the totality of the circumstances, I have a
definite and firm conviction that the respondent’s 2012 testimony is not
worthy of belief.

    I thus concur in the dismissal of the respondent’s appeal regarding
deportability. I further concur in sustaining DHS’ appeal and would deny
the section 237(a)(1)(H) waiver in the exercise of discretion.




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