Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) - Burden of Proof in Establishing Eligibility for Waiver of Deportability

 

Introduction: Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017)

On April 18, 2017, the United States Court of Appeals for the Eighth Circuit issued a published decision in Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) [PDF version]. The Eighth Circuit held that when seeking a waiver of deportation under section 237(a)(1)(H) of the Immigration and Nationality Act (INA), the alien has the burden of showing by a preponderance of the evidence that he or she is not subject to a mandatory denial ground to relief from removal if the evidence in the record suggests that he or she may be subject to at least one mandatory denial ground to relief. In this case, the Eighth Circuit interpreted the regulation regarding the burden of proof for aliens seeking relief from removal under 8 C.F.R. 1240.8(d).

Waiver of deportability

In this article, we will examine the facts, procedural history, and analysis and decision in Maric v. Sessions. Please note that a month after the Eighth Circuit's decision in Maric v. Sessions, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) [PDF version], on the same issue, and reaching the same conclusions as the Eighth Circuit. Please see our full article on the new BIA precedent to learn more about the burden of proof when seeking relief from removal [see article].

Facts and Procedural History of Maric: 854 F.3d 520-522 (8th Cir. 2017)

The petitioner, Vladimir Maric, was a citizen of Bosnia Herzegovina. He was admitted to the United States as a refugee from the then-Yugoslavia with his wife and children in September of 1999. In 2001 he became a lawful permanent resident (LPR).

In 2011, the Department of Homeland Security (DHS) initiated removal proceedings against Maric. The DHS charged Marci as removable under section 237(a)(1)(A) of the INA for having been inadmissible at the time of his admittance as an LPR for having obtained immigration benefits through fraud or willful misrepresentation of a material fact as described in section 212(a)(6)(C)(i). Specifically, the charges stemmed from the claim that Maric had concealed his service in the Army of the Serb Republic (VRS) from January 2, 1995, to January 27, 1996. Significantly, the period of Marci's service coincided with the July 1995 massacre of thousands of Bosnian Muslim prisoners in Srebrenica.

The Immigration Judge hearing the case found that Maric was removable based on his concealment of his service in the VRS. Maric sought a waiver of deportation under section 237(a)(1)(H) of the INA. Section 237(a)(1)(H) allows for waiver of several deportability grounds found in section 237 of the INA. However, the Immigration Judge found that Maric was ineligible to seek relief under section 237(a)(1)(H). The reason for the Immigration Judge's finding is that Maric failed to prove that he was not an alien who “committed… assisted, or otherwise participated in” extrajudicial killings under color of law in a foreign nation, as described in the inadmissibility provision found in section 212(a)(3)(E)(iii) of the INA. An alien who is inadmissible for extrajudicial killings as described in section 212(a)(3)(E)(iii) is subject to mandatory denial of an application for relief from removal under section 237(a)(1)(H).

Maric appealed to the BIA. However, the BIA affirmed the Immigration Judge's decision. Maric then appealed to the Eighth Circuit, arguing that the BIA had erred in not requiring the government to prove that he was inadmissible under section 212(a)(3)(E) by “clear and convincing evidence.”

The question for the Eighth Circuit was, accordingly, who bore the burden of proof when the evidence in the record suggested that Maric may be subject to a mandatory denial ground to section 237(a)(1)(H) relief from removal. The government argued, and the Immigration Judge and BIA agreed, that Maric bore the burden of showing by the preponderance (weight) of the evidence that he was not subject to the mandatory denial of his waiver of deportation application. Maric argued that the government bore the burden of showing that he was subject to the mandatory denial ground by clear and convincing evidence.

Eighth Circuit's Reasoning and Decision in Maric: 854 F.3d 520, 522-525 (8th Cir. 2017)

The Eighth Circuit explained that under 8 C.F.R. 1240.8(a), the DHS bears the burden of proving that an alien is removable by clear and convincing evidence. In Maric, this applied specifically to proving that he was inadmissible at the time of adjustment of status for having sought to procure an immigration benefit through fraud or willful misrepresentation of a material fact.

Maric argued that the DHS had the same “clear and convincing evidence” burden with regard to showing that he was subject to a mandatory denial ground to the section 237(a)(1)(H) waiver of deportability. However, the Eighth Circuit explained that under section 240(c)(4)(A) of the INA, the alien has the burden of proof to establish that he or she satisfies the applicable requirements when seeking a waiver of removal. Furthermore, regulations in 8 C.F.R. 1240.8(d) state that, where evidence in the record indicates that an alien may be subject to one or more mandatory denial grounds to relief from removal, the alien bears the burden of proving by a preponderance of the evidence that he or she is not subject to such mandatory denial grounds to relief from removal.

In the hearing before the Immigration Judge, the immigration court heard testimony from Michael MacQueen, a senior historian at the DHS's Human Rights Division. MacQueen testified that the VRS had participated in a coordinated killing operation at Srebrenica in July 1995. As a result, MacQueen testified, Maric's failure to disclose his service in the VRS at the time of the killing operation in Srebrenica constituted a material misrepresentation as described in section 212(a)(6)(C)(i) of the INA. Accordingly, the DHS was able to prove that Maric was removable under section 237(a)(1)(A) for having been inadmissible at the time his status was adjusted to that of an LPR.

When Maric sought a waiver of deportability under section 237(a)(1)(H), the DHS presented evidence that Maric may have participated in the extrajudicial killings at Srebrenica in July 1995. The DHS's evidence included records that listed Maric as carrying out combatant assignments for the Sixth Battalion in the VRS at the time the massacres occurred. MacQueen testified that records show that members of the Sixth Battalion were housed during July 1995 in a school building in Petkovci. He further testified that on July 14, the Sixth Battalion detained “around 1,000 Bosnian men and boys” in that school building who had been fleeing the area. On July 15, the Sixth Battalion removed prisoners from the school building and executed them by automatic rifle.

In seeking to counter that evidence, Maric testified that he was forcibly conscripted into the VRS in January 1995. He further testified that in July of 1995, he was only on active duty on a single day, July 22. He claimed that in July, he witnessed no shootings or dead bodies. He also submitted documents regarding his military service, but none of the documents pertained to his service in July of 1995.

The Immigration Judge found that, based on the evidence, Maric may have participated in the atrocities in Srebrenica, thus suggesting that he may be ineligible for a waiver of deportability under section 237(a)(4)(D) (deportability for aliens described by several provisions, including inadmissibility for extrajudicial killings) and section 212(a)(3)(E)(iii). The Immigration Judge's finding shifted the burden to Maric to show, by the preponderance of the evidence, that he was not subject to the mandatory denial of his section 237(a)(1)(H) waiver of deportability application. The Immigration Judge found that Maric failed to sustain his burden. Specifically, the Immigration Judge found that Maric was not a credible witness and that the documents he relied upon did not substantiate his claims about his military service in July of 1995.

On appeal, Maric cited to the BIA decision in the Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) [PDF version]. Maric argued that the precedent in D-R- required the DHS to prove by clear and convincing evidence that he had participated in the Srebrenica massacre in order to show that he was described by section 212(a)(3)(E)(iii) and was therefore ineligible for a waiver of deportability.

However, the DHS argued that the situation in Maric's case was not comparable to the situation in the Matter of D-R-. The reason for the DHS's contention was that in Matter of D-R-, the government sought to show that an alien was removable based on inadmissibility under section 212(a)(3)(E)(iii). Accordingly, the DHS had to meet the clear and convincing evidence standard in Matter of D-R- to establish that the alien was removable. However, in Maric's case, the removal charges were based on section 212(a)(6)(C)(i), willful fraud or misrepresentation of a material fact. The DHS had the burden, and sustained its burden, of proving through clear and convincing evidence that Maric was removable for having been inadmissible at the time of adjustment of status based on inadmissibility under section 212(a)(6)(C)(i). The DHS argued that, in Maric's case, the section 212(a)(3)(E)(iii) issue arose with respect to his eligibility for relief from removal, rather than with respect to whether he was removable, which the DHS had already established on other grounds. Accordingly, the DHS argued that both the Immigration Judge and the BIA were correct in finding that Maric bore the burden under 8 C.F.R. 1240.8(d) of proving by the preponderance of the evidence that he was not subject to the mandatory denial of his waiver of deportability application.

The Eighth Circuit agreed with the government's position. It explained that in order to be eligible for relief under section 237(a)(1)(H), an alien must be (1) removable for fraud or material misrepresentation; and (2) not described by section 237(a)(4)(D) (which includes inadmissibility under section 212(a)(3)(E)(iii)). Under 8 C.F.R. 1240.8(d), the burden shifts to the alien seeking a waiver when the evidence indicates that he or she may be subject to a mandatory denial ground to relief from removal. The Eighth Circuit rejected Maric's argument that the shifting burden opens a government “backdoor” which would allow it to find that aliens are removable without sufficient evidence because the issue in Maric's case was distinguishable from determining removability. The only issue regarding section 212(a)(3)(E)(iii) in Maric's case was his eligibility for relief from removal, not whether he was removable. The Eighth Circuit cited to its published decision in Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir. 2016) [PDF version], wherein it held that, while the government bears the burden of proving that an alien is deportable or removable, the alien has the burden of proving that he or she is eligible for cancellation of removal.

For the foregoing reasons, the Eighth Circuit denied Maric's petition for review.

Conclusion

Essentially, the Eighth Circuit explained that the issue of which party bears the burden of proof for showing that an alien is removable is a distinct issue from adjudicating an application for relief from removal. In the former case, the government faces a high burden. In the latter case, the burden rests with the alien to show that he is eligible for relief.

Had the government's removal charges been based on Maric having been inadmissible under the extrajudicial killings provision in section 212(a)(3)(E)(iii), it would have had the burden of proving that he was inadmissible under that provision by clear and convincing evidence, in accord with the Matter of D-R-, which dealt with that very issue. However, the government had already sustained its burden of showing that Maric was removable by clear and convincing evidence on other grounds. Since the section 212(a)(3)(E)(iii) issue arose in the relief from removal context, Maric bore the burden of proving by the weight of the evidence that he was not an alien described by that provision.

An alien facing removal proceedings should always consult with an experienced immigration attorney for expert case-specific guidance. To learn more about the burden of proof when seeking relief from removal, please see our article on the recent published BIA decision on the same issue discussed in Maric [see article].