Matter of D-R-, 25 I&N Dec 455 (BIA 2011), 27 I&N Dec. 105 (BIA 2017): Facts and Procedural History

 

Introduction

In this article, we will provide an overview of the facts and procedural history of the precedent Board of Immigration Appeals (BIA) decisions in the Matter of D-R-, 25 I&N Dec. 455 (BIA 2011), and the Matter of D-R-, 27 I&N Dec. 105 (BIA 2017). These decisions touch on a variety of issues, but chief among them are adjudicating when a “misrepresentation of a material fact” is “material” for purpose of inadmissibility under section 212(a)(6)(C)(i) of the INA, and adjudicating whether an alien is removable under section 237(a)(4)(D) for having “assisted, or otherwise participated in” extrajudicial killings.

Matter of D-R-

After explaining the procedural history of the case, we will examine the underlying facts in detail. Then we will provide links to our full articles on specific issues addressed in the decisions as well as to related articles that involve similar issues. Please see our list of detailed articles to learn about the rules that came out of the Matter of D-R- decisions.

Overview

On April 6, 2011, the BIA issued a published for-precedent decision in the Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (“Matter of D-R- 2011”) [PDF version]. The case concerned a native and citizen of Bosnia and Herzegovina who had omitted from his application for refugee status his service for the Armed Forces of the Republic of Srpska during the Bosnian War. The Board concluded that he was removable under section 237(a)(1)(A) of the Immigration and Nationality Act (INA) for having been inadmissible at the time of admission under section 212(a)(6)(C)(i) for misrepresentation of a material fact. The Board also concluded that the respondent was removable under section 237(a)(4)(D) of the INA as an alien who had “assisted, or otherwise participated in” extrajudicial killings. Additionally, the Board rejected several other claims by the respondent regarding the admissibility of documentary evidence and expert testimony, the competency of his interpreter, the termination of his removal proceedings, and his eligibility for other forms of relief from removal.

The respondent appealed from the Board's decision to the United States Court of Appeals for the Ninth Circuit. You may see the oral arguments before the three-judge panel of the Ninth Circuit below (courtesy of the Ninth Circuit's YouTube channel):

The Ninth Circuit issued an unpublished not-for-precedent decision on March 24, 2015, titled Radojkovic v. Holder, 599 Fed.Appx. 646 (Mem) [PDF version]. The Ninth Circuit granted the petition for review and remanded the case to the Board for clarification of two points from Matter of D-R- 2011. First, regarding the fraud or willful misrepresentation issue, the Ninth Circuit noted that the misrepresentation must be “material” in order for inadmissibility to attach. However, the Ninth Circuit noted that the Board had not applied both prongs of the Ninth Circuit's method for determining materiality as set forth in Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) [PDF version]. It asked the Board to clarify if it in fact had intended to issue an interpretation of the term “material” that would be entitled to administrative deference. Second, regarding the Board's determination of removability for assisting or otherwise participating in persecution, the Ninth Circuit found that the Board had not fully applied the Ninth Circuit's precedent on the issue, applying a two-prong test, as found in Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) [PDF version]. Accordingly, the Ninth Circuit remanded for clarification by the Board regarding the relevance and applicability of the two-prong test.

On September 14, 2017, over six years after its first decision in the case, the Board issued a published decision in the Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) [PDF version] (“Matter of D-R- 2017”). First, the Board reaffirmed its determination on all points not addressed by the Ninth Circuit. Second, the Board declined to follow Forbes, and instead issued its own definition of “material” under section 212(a)(6)(C)(i) of the INA. Third, the Board also declined to follow the two-prong test set forth in Miranda Alvarado, and instead set forth its own test for determining whether an alien assisted, or otherwise participated in an extrajudicial killing.

Facts

The facts of the case were comprehensively outlined by the Board in Matter of D-R- 2011 at 25 I&N Dec. at 446-449. This was supplemented by the Board in Matter of D-R- 2017 at 27 I&N Dec. at 106-107.

The respondent, a native and citizen of Bosnia and Herzegovina, was a lawful permanent resident of the United States. 25 I&N Dec. at 446. In June of 1999, the respondent had been originally admitted to the United States as a refugee. 25 I&N Dec. at 449. He adjusted status to that of an alien lawfully admitted for permanent residence in 2002. Id. The respondent was placed in removal proceedings in 2009 after it was discovered that he had “omitted from his application for refugee status that he had served as a special police officer for the Republic of Srpska during the Bosnian War.” Id. The respondent explained that he had omitted his service history because an agent of International Organization for Migration (IOM) had helped him complete his refugee status application and had advised him that including his service in the Bosnian War would lead to the denial of his application. Id.

Accordingly, he was charged as being removable under section 237(a)(1)(A) of the INA for having been inadmissible at the time of admission for fraud or willful misrepresentation of a material fact under section 212(a)(6)(C)(i). The Department of Homeland Security (DHS) also alleged that the respondent was removable under section 237(a)(4)(D) for having “assisted, or otherwise participated in” extrajudicial killings. The respondent contested both charges, but the Immigration Judge would, for the forthcoming reasons, find him removable as charged.

The respondent had served as a police officer in the then-Republic of Srpska and the Federation of Bosnia-Herzegovina. 25 I&N Dec. at 446. During the Bosnian War, a conflict that ensued from 1991 to 1995, the Republic of Srpska Ministry of Internal Affairs police force (“MUP”), in which the respondent served, became part of the Armed Forces of the Republic of Srpska. Id. The police force became part of the military in accord with the then-Republic of Srpska constitution. Id.

In the summer of 1995, the respondent was assigned to the Special Police Brigade at the Ministry of Internal Affairs' Jahorina Training Center. Id. This was overseen by Dusko Jevic. Id. In that capacity, the respondent served as leader of the third platoon in the 2nd Company of the Training Center, with command responsibility over 25 special police officers. 25 I&N Dec. at 447.

In July of 1995, an event called the Srebrenica massacre occurred. Serbian forces executed between 5,000 and 7,000 Bosnian Muslim men and boys in a one-week period. During proceedings in immigration court, the Department of Homeland Security (DHS) presented extensive documentary evidence about the massacre. This evidence included:

  • Expert testimony and documents from the United Nations International Criminal Tribunal for the Former Yugoslavia at the Hague (“ICTY”) and the Bosnian War Crimes Tribunal;
  • State Department reports;
  • Findings from ICTY trial judgments;
  • Copies of real-time dispatch reports from field officers during the war that had been seized by ICTY after the war;
  • A five minute video compiled by the prosecutor for the ICTY as part of the proceedings in the prosecution of Vidoje Blagojevic and Dragan Jokic (who the respondent had served under); and
  • Photographic images from a video taken by an independent Begrade filmmaker showing captured Bosnian Muslims along the Bratunac-Konjevic Polje road on July 13, 1995. Id.

The Immigration Judge found the above evidence to be relevant and probative. Id.

The DHS also submitted records from the MUP showing that the respondent had indeed served with the Special Police Brigade during the Bosnian War. Id.

Richard Butler, a criminal research specialist with the DHS who had formerly worked as a military analyst for the ICTY, provided expert testimony on behalf of DHS. Id. The Immigration Judge found his testimony to be both credible and persuasive. Butler's testimony provided details on military operations around Srebrenica in 1995 and the ensuing massacres. Butler's testimony and other evidence “showed that as the Serbian Army overtook Srebrenica and Bosnian Muslims fled the area, thousands were executed.” Id.

Butler testified that when the Serbian Army overtook Srebrenica, an urgent message was sent to the Commander of the Jahorina Training Center where the respondent was serving. Id. Butler showed that the respondent and his platoon were sent to patrol the Bratunac-Konjevic Polje road on July 12, 1995, and they remained there until July 19, 1995. 25 I&N Dec. at 447-48. The platoon did not leave the road at any time during that week. 25 I&N Dec. at 448. During that week, the respondent's platoon and others patrolling the road “secured or guarded segments of the road and conducted joint 'sweep' operations with Army troops and other special police in the surrounding mountainous area to secure the road and the nearby area from escaping Bosnian Muslims.” Id. Butler offered extensive testimony and evidence detailing the MUP's role in securing the road and capturing Bosnian Muslims along the road, many of whom had surrendered. Id. He explained that the MUP had almost exclusive responsibility for securing the road. Id.

The Board explained that on the morning of July 13, 1995, “a total of about 1,000 Bosnian Muslim men and boys (as young as age 15) surrendered on different points of the Bratunac-Konjevic Polje road, including in the area of Sandici-Novici, which is the area of the road where the respondent testified that he and his platoon were stationed.” Id. Evidence submitted by the DHS showed that Bosnian Muslims found on the road were “being induced to come out of the rough terrain by promises of food and water and humane treatment.” Id. This occurred where the respondent was patrolling. Id. Those who surrendered were placed on buses and taken to a warehouse in the village of Kravica, where MUPs shot and killed approximately 1,000 Bosnian Muslim men and boys in less than 2 hours. Id. The victims were buried in mass graves. Id. The DHS showed that the warehouse where the massacre took place was less than two miles from the respondent's position on the road. Id.

The Board continued summarizing the evidence. On either July 16 or 17, the 2nd Company Special Police Brigade under the command of Ikonic, which included the respondent's platoon, “were involved in a joint sweep operation that resulted in the capture of about 200 Bosnian Muslim men and boys and four young children along the Bratunac-Konjevic Polje road.”

Dusko Jevic, who had been the commander of the Training Center where the respondent's 2nd Company Special Police Brigade was based, provided televideo testimony on behalf of the respondent. Id. Jevic testified that he had been responsible for having the 200 men loaded onto buses. Id. Jevic said that those under his command, which included the respondent's platoon, loaded the men onto the buses on his orders. Id. Jevic testified that he understood at the time that the men would be taken to Zvornik but that there was no way that he could have known what would happen to them there. Id. He also testified that he had no knowledge of anyone under his command, including the respondent, ordering these or any other men to be captured or killed. Id.

The Board explained that the 200 men who were captured on either July 16 or 17 were never heard from again. 25 I&N Dec. at 489. The four boys who were captured were taken elsewhere and not harmed. 25 I&N Dec. at 489 & n.1. Butler testified that the 200 men were probably killed in a manner similar to that in which the men were killed at the Kravica warehouse. 25 I&N Dec. at 489. Butler further testified that it was “well known” by the time those 200 men were captured that massacres of Bosnian Muslims were taking place, contrary to the testimony of Dusko Jevic. Id.

As we noted at the top, the respondent's immigration charges stemmed from his omission of his service in the Bosnian War from his refugee application. The respondent argued that his admitted omission of his service was not material to his application for refugee status and therefore did not render him inadmissible at the time of entry under section 212(a)(6)(C)(i) of the INA and by subsequent effect, removable under section 237(a)(1)(A). Id.

Regarding the charge that he had “assisted, or otherwise participated” in an extrajudicial killing causing removability under section 237(a)(4)(D), the respondent conceded that he had been present at the time that the 200 men surrendered to police and military units. Id. The respondent stated that all of the men were adult soldiers. Id. He stated that, while he was admittedly present when the 200 men surrendered and when the Army took them away on buses, he had not known what would happen to the 200 men. Id. He also testified that he had not heard of the Kravica warehouse killings or any other executions of Bosnian Muslims while he served in the Bosnian War.

The Immigration Judge determined that the respondent was removable on both counts and this was upheld by the Board in both Matter of D-R- 2011 and 2017. Please see the next section of this article for links to articles where we discuss each of the issues in greater detail.

List of Articles on Matter of D-R-

This article is an introduction to the overall history of the two Matter of D-R- decisions and the facts underlying both. Because the Board's analysis is detailed and extensive on both the misrepresentation and extrajudicial killing points, we have dedicated full articles to each issue. Furthermore, we have a third article covering arguments of the respondent that were rejected by the Board in Matter of D-R- 2011 and not revisited in the 2017 decision. The following is our list of articles on Matter of D-R-:

  • Matter of D-R- (2011 and 2017): Determining when misrepresentation is “material” [see article]
  • Matter of D-R- (2011 and 2017): Removal for “assisting, or otherwise participating in” extrajudicial killings [see article]
  • Matter of D-R-, 25 I&N Dec. 445 (2011): Analysis Concerning Admissibility of Expert Testimony and Other Issues [see article]

Articles on Other Cases Involving Immigration and Bosnian War Service

We have several other articles that involve individuals with immigration issues stemming from their service in the Bosnian Civil War.

In Matter of M-B-C, 27 I&N Dec. 31 (BIA 2017), the Board considered who bears the burden of proof when the record of an alien in removal proceedings contains information indicating that the alien is subject to one or more grounds of mandatory denial of an application for relief. You may read our full article here [see article]. See also a similar case in our article on Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) [see article].

Finally, our article on Maslenjak v. United States, 582 U.S. ___ (2017) covers a recent consequential Supreme Court decision addressing whether a false statement forming the basis of criminal charges that can lead to denaturalization must be material [see article].

Conclusion

For more on the Matter of D-R- decisions, please see our detailed articles on the Board's rulings. Please refer back to this article for an overview of the rulings and a detailed look at the facts underlying all three of our articles on the Board precedents.