- Facts of the Case
- Relevant Statutes
- Matter of D-R-, 25 I&N Dec. 445, 451-456 (BIA 2017)
- Ninth Circuit Remands
- Matter of D-R-, 27 I&N Dec. 105, 115-123 (BIA 2017) — Overview
On April 6, 2011, the Board of Immigration Appeals (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]. In the decision, the Board determined that the respondent was removable for having assisted in the extrajudicial killing of 200 Bosnian Muslims during the Bosnian War. Although the evidence did not suggest that he had personally killed any Bosnian Muslims, the Board determined that his unit had been involved in capturing the Bosnian Muslims, that the respondent had command responsibility, and that the respondent had been aware of similarly situated Bosnian Muslims who had been executed en masse nearby only days earlier.
The United States Court of Appeals for the Ninth Circuit issued an unpublished decision on appeal on March 24, 2015, in Radojkovic v. Holder, 599 Fed.Appx. 646 (Mem) [PDF version]. On appeal, the Ninth Circuit remanded the case to the Board for further proceedings regarding its determination that the respondent was deportable as an alien who had “assisted, or otherwise participated in” extrajudicial killing as defined in section 237(a)(4) under section 237(a)(4) of the INA. Specifically, the Ninth Circuit took the position that the Board had not fully applied a relevant precedent two-part test on the issue established in Miranda Alvarado v. Gonzales, 449 F.3d 915, 926 (9th Cir. 2006) [PDF version].
On September 14, 2017, the Board issued a second published for-precedent decision in the case in Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) (“Matter of D-R- 2017”) [PDF version]. In this decision, the Board declined to follow Miranda Alvarado, instead defining its own two-part analysis for determining whether an alien had “assisted, or otherwise participated in” extrajudicial killing as defined in section 237(a)(4) of the INA. The Board stated that an adjudicator should consider “(1) the nexus between the alien's role, acts, or inaction in the extrajudicial killing, and (2) his scienter, meaning his prior contemporaneous knowledge of the killing.” Ultimately, the Board affirmed its earlier decision from Matter of D-R- 2011 and found that the respondent was removable under section 237(a)(4) of the INA.
In this article, we will examine both Matter of D-R- 2011 and Matter of D-R- 2017 with respect to the Board's analysis of whether the respondent had assisted in extrajudicial killing as defined in section 237(a)(4). We will incorporate by reference the facts of the case from the relevant section of our article providing an overview of both Matter of D-R- decisions [see article]. To jump straight to the new rule established by the Board in Matter of D-R- 2017, please see the following link [see section].
The Matter of D-R- cases addressed a variety of other issues in addition to section 237(a)(4). In Matter of D-R- 2017, the Board issued new precedent on the definition of the term “material” in the context of section 212(a)(6)(C)(i) inadmissibility for fraud or willful misrepresentation of a material fact to procure an immigration benefit. Please see our full article to learn more [see article]. Finally, please see our article on a variety of other issues addressed by the Board exclusively in Matter of D-R- 2011, including the admissibility of expert testimony [see article].
The respondent, a native and citizen of Bosnia, was charged as removable on two separate grounds. In this article, we will examine the charge that the respondent was removable under section 237(a)(4) of the INA as an alien who had “assisted, or otherwise participated in” extrajudicial killings. The charges stemmed from the respondent's service in the Bosnian War.
As we stated in the introduction, we discussed the facts of the case in detail in our introductory article to the Matter of D-R- decisions. Before continuing, it is important to read our discussion of the facts of the case from that article [see section]. We incorporate the facts by reference into this article.
Our discussion concerns the proper interpretation of section 237(a)(4)(D) of the INA. Section 237(a)(4)(D) reads as follows:
Any alien described in clause (i), (ii), or (iii) of section 212(a)(3)(E) of [the INA] … is deportable.
Section 237(a)(4)(D) incorporates by reference the inadmissibility provisions found in section 212(a)(3)(E) of the INA. As we will see, the respondent in the instant case was alleged to be described by section 212(a)(3)(E)(iii). That provision reads as follows:
- Commission of acts of torture or extrajudicial killings
- Any alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of-
- I. any act of torture, as defined in section 2340 of title 18; or
- II. under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note),
- is inadmissible.
The respondent in this case was alleged to have assisted in extrajudicial killing under the color of law of a foreign nation as described in section 212(a)(3)(E)(iii)(II). The primary matter at issue in both cases, but especially Matter of D-R- 2017, is the proper reading of “assisted, or otherwise participated in” the commission of an extrajudicial killing as applied to the established facts.
In removal proceedings, the Immigration Judge concluded that the Department of Homeland Security (DHS) had established by clear and convincing evidence that the respondent had “committed, ordered, incited, or otherwise participated in” an extrajudicial killing, therefore triggering mandatory removability under section 237(a)(4)(D) of the INA.
The Board explained that in order to determine whether a respondent is removable under section 237(a)(4)(D), the DHS must establish the following:
- That he or she acted “under color of law”; and
- That he or she “committed, ordered, incited, assisted, or otherwise participated” in the commission of an extrajudicial killing.
Regarding the instant case, the Board determined that the respondent's actions in the Bosnian War in the period in question “were clearly under color of law.” To this effect, the Board noted that the respondent's “service with the Jahornia Training Center Special Police Brigade in 1995 was under the authority of the commander of the Center.” Furthermore, “under the Constitution of the Republic of Srpska, the special police answered to the military command during wartime.” The Board added that , even if he had not been answering to military command, the respondent would have still been acting under color of law in his capacity as a police officer for the Republic of Srpska.
The point of contention in the case was whether the DHS had in fact proven by clear and convincing evidence that the respondent had “ordered, incited, assisted, or otherwise participated in” an extrajudicial killing. The respondent argued that the Immigration Judge erred in finding that the DHS had met its burden.
The Board noted that the INA does not specifically define the phrase “ordered, incited, assisted, or otherwise participated.” However, the same phrase has been interpreted in the context of the “persecutor bar” to asylum (section 208(b)(2)(A)(i)) and withholding of removal (section 241(b)(3)(B)) In the Matter of A-H-, 23 I&N Dec. 774, 784 (A.G. 2005) [PDF version], then-Attorney General John Ashcroft issued a published decision on the issue. The Board noted that the Attorney General held that the terms “are to be given broad application.” Id. at 785. Furthermore, the Attorney General held that the terms as employed in the persecutor bar context do not require that the individual have had direct involvement in the persecution. Id. The Attorney General stated that when determining whether the persecutor bar applies, “[i]t is appropriate to look at the totality of the relevant conduct…” Id.
Section 212(a)(3)(E) of the INA was amended by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (“IRTPA”). Accordingly, the Board looked to the legislative history to determine the meaning of the terms “ordered, incited, assisted, or otherwise participated” as included in section 212(a)(3)(E). Specifically the Board looked to the United States Senate Report for the proposed Anti-Atrocity Alien Deportation Act of 2003, S.710, 108th Cong. (2003). The Board noted that language from the Anti-Atrocity Alien Deportation Act of 2003 was incorporated into the IRTPA, adding credence to its relevance. The Board noted that the Senate report stated that the proposal was “intended to close loopholes in U.S. immigration laws aliens who have committed serious forms of human rights abuses abroad to enter and remain in the country.” The Board also quoted the following passage of the report, reproduced below:
The Board suggested that the cases cited in the Senate Report “indicate that there is a continuum of conduct ranging from passive acceptance, which does not meet the legal standard, to active, personal, participation, which clearly does.” The Board also stated that the cases make clear that an individual can be found to have “assisted” in persecution in the persecutor bar context even if they have not “personally engaged in acts of violence” (citing to Kalejs v. INS, 10 F.3d 441, 444 (7th Cir. 1993) [PDF version]). With reference to the legislative history, the Board concluded “that inadmissibility under section 212(a)(3)(E) of the Act is established where it is shown that an alien with command responsibility knew or should have known that his subordinates committed unlawful acts covered by the statute and failed to prove that he took reasonable measures to prevent or stop such acts or investigate in a genuine effort to punish the perpetrators.”
Regarding the instant case specifically, the Board concluded that the Immigration Judge had made reasonable inferences in determining that the respondent had assisted in the commission of extrajudicial killings because he knew or at least should have known that the 200 Bosnian Muslims he helped arrest would be killed unlawfully. The Board cited to its decision in Matter of S-P-, 21 I&N Dec. 486, 489-90 (BIA 1996) [PDF version], wherein it noted that the motivation of a persecutor involves questions of fact.
The respondent argued that he had not known what would happen to the 200 captured Bosnian Muslims and that the Immigration Judge's conclusions were merely speculative. However, the Board determined that “the Immigration Judge's findings were based on reasonable inferences from direct and circumstantial evidence of the record as a whole, not on speculation.”
The Board agreed with the Immigration Judge's conclusion that, based on evidence in the record and testimony from the DHS expert witness Richard Bulter, the respondent must have heard the sounds of protracted gunfire during the executions at the Kravika warehouse a few days prior to his participating in capturing 200 additional Bosnian Muslims in the same area. Furthermore, the Board added that an International Warrant issued for the arrest of the respondent by his native Bosnia and Herzegovina stated that the respondent “knew that his subordinates took part in the execution of detainees at Kravica.” Based on the conclusion that the respondent necessarily had known about the earlier Kravica warehouse killings, the Board concluded that it was reasonable for the Immigration Judge to infer that the respondent had then assisted in the unlawful killing of 200 Bosnian Muslims that his unit was involved in capturing on the same stretch of road just a few days later. The Immigration Judge reasoned that the respondent either knew or should have known that the Bosnian Muslims his unit helped capture would likely meet a similar fate to those killed at the Kravica warehouse.
Butler had testified that it was well known at the time of the capture of the 200 Bosnian Muslims that the Serbians were committing mass killings of Bosnian Muslims. The Board noted that there was no evidence in the record that the respondent personally ordered an extrajudicial killing. However, the Board concluded that the evidence was sufficient to show that he had assisted in extrajudicial killings. The Board noted the following four fact findings in support of this conclusion:
- The respondent's command responsibility;
- The respondent's presence;
- The respondent's platoon's active participation; and
- The respondent's necessary awareness of recent mass killings of other similarly situated Bosnian Muslims in the same immediate area.
The Board found that the Immigration Judge did not err in discrediting the respondent's “wholesale denial of any knowledge or culpability related to mass executions of Bosnian Muslims captured on the Bratunac-Konjevic Polje road.” Citing to Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985), the Board explained that a finder of fact choosing between two permissible views of the evidence cannot be clearly erroneous. The Board also cited to controlling precedent from the Ninth Circuit from Blanco v. Mukasey, 518 F.3d 714, 721 (9th Cir. 2008) [PDF version], wherein the Ninth Circuit held that an Immigration Judge did not err in rejecting an applicant's plausible account based on contrary evidence.
To this effect, the Board noted several differences between the respondent's testimony and Butler's testimony, the latter of which was supported by documentary evidence. These included differences regarding the duration of time the respondent was stationed on the Bratunac-Konjevic Polje road, the purpose of the operations conducted, and the circumstances of the operations.
The Board cited to the Supreme Court decision in INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992) [PDF version], wherein the Supreme Court held that the motives of persecutors may be assessed through direct or circumstantial evidence. In Kalejs v. INS, 10 F.3d at 444, the Seventh Circuit noted that direct evidence may be lacking in persecutor bar cases due to the lack of victim witnesses. The Board took the position that “fact-finding in the persecutor bar context is analogous to fact-finding in the context of extrajudicial killing.” The Board noted that, regarding the facts of the instant case, the evidence established that 200 Bosnian men and boys who surrendered “under the guise of humane treatment” were captured and later executed.
For the foregoing reasons, the Board affirmed the Immigration Judge's conclusion that the respondent was removable under section 237(a)(4)(D). The Board rejected the respondent's argument that the application of section 237(a)(4)(D) was impermissibly retroactive, citing to Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) [PDF version].
The respondent appealed the adverse decision in Matter of D-R- 2011 to the Ninth Circuit. The Ninth Circuit remanded on two points, with one being the Board's conclusion that the respondent was removable under section 237(a)(4)(D).
The Ninth Circuit stated that the Board had “appeared” to adopt the definition of “commit, order, incite, assist, or otherwise participate” from its decision on the application of the same term in the persecutor bar context from Miranda Alvarado v. Gonzales, 447 F.3d 915, 926 (9th Cir. 2006). In that case, the Ninth Circuit explained that it established “a continuum of conduct against which an individual's actions must be evaluated so as to determine personal culpability.”
As we noted, the Board did indeed reference the “continuum of conduct,” albeit without direct reference to Miranda Alvarado. The Ninth Circuit explained that in the test it established in Miranda Alvarado, there are two requirements for establishing culpability for purpose of the persecutor bar to asylum and withholding of removal:
- Personal involvement; and
- Personal assistance.
The Ninth Circuit acknowledged that the Board had referenced this “continuum of conduct test,” but that it had done so without direct reference to Miranda Alvarado and without applying or addressing the relevance of the Miranda Alvarado two-part test. For this reason, the Ninth Circuit remanded to the Board for “further clarification regarding the relevance and applicability of the two-prong test established by Miranda Alvarado.”
As we discuss in our companion article, the government argued that the Board's definition of “material” in the section 212(a)(6)(C)(i) context was entitled to administrative deference from the Ninth Circuit under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) [PDF version]. Interestingly, the Ninth Circuit noted that, in briefing, the government did not argue that the Board's definition of “assisting” in an extrajudicial killing was entitled to. However, in oral arguments, the government did argue that the Board's definition of “assisting” in the section 237(a)(4) context was entitled to Chevron deference. You may watch a video of the oral arguments below:
In the next section, we will examine how the Board resolved the issues on remand from the Ninth Circuit.
On September 14, 2017, the Board resolved Matter of D-R- on remand from the Ninth Circuit in a second published for-precedent decision. In its decision, the Board explicitly declined to follow Miranda Alvarado, and it instead offered its own definition and test for determining when an alien “assisted, or otherwise participated in” extrajudicial killing. In the forthcoming subsections, we will examine each key aspect of the Board's important new decision.
Before continuing, we would like to again remind you that we discuss the facts of the case in detail in our general introduction to the two Matter of D-R- decisions [see section].
The Board explained that the alien in Miranda Alvarado had served as a language interpreter in Peru for interrogations of suspected Shining Path Members. Miranda Alvarado, 449 F.3d 918. According to the Ninth Circuit decision, the alien had served as an interpreter on two separate occasions, and the suspects in the interrogations were tortured. The alien himself witnessed the torturous acts. Id. at 920. On the basis of these facts, the Immigration Judge determined that the alien was barred from asylum because he had “assisted in the persecution of others.” Id.
In Miranda Alvarado, the Ninth Circuit determined that the term “assist[ing] or otherwise participat[ing] in the persecution of others” in the asylum bar statute was ambiguous. Id. at 921. The Ninth Circuit declined to afford the Board's affirming of the Immigration Judge's decision Chevron deference because the Board had merely affirmed the Immigration Judge's decision rather than issuing a published decision that had “the force of law.” Id. at 921-924. The Ninth Circuit also determined that Miranda Alvarado was distinguishable from the Attorney General decision on the persecutor bar in Matter of A-H-.
In Miranda Alvarado, the Ninth Circuit held that in order to determine whether an alien assisted in persecution, adjudicators must consider the following factors:
- Personal involvement in persecution; and
- Purposeful assistance in persecution. Id. at 927.
The Ninth Circuit drew from the following footnote in the Supreme Court decision in Fedorenko v. United States, 449 U.S. 490, 512 at n.34 (1981) [PDF version]:
The Board highlighted the key passage of Miranda Alvarado, where the Ninth Circuit interpreted Fedorenko as “indicat[ing] a continuum of conduct against which an individual's actions must be evaluated so as to determine personal culpability.” Id. at 926. The Ninth Circuit held that adjudicators must examine the degree of relation between the alien's acts and the persecution, whether the alien acted in self-defense, how long the alien was involved in the acts, and whether (and if so, what) threats were used to compel the alien's assistance. Id. at 926-28. Citing to Matter of A-H-, the Ninth Circuit explained that actual “trigger-pulling” by the alien was not required. The Ninth Circuit cited to its own decision in Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004) [PDF version], in explaining that acquiescence or membership in an organization is not in and of itself sufficient to establish that an alien was a persecutor.
In Miranda Alvarado, the Ninth Circuit determined that the alien in the case was subject to the persecutor bar because the interrogations and persecution could not have proceeded without his interpreting. Id. at 928-29.
The Board noted that the Ninth Circuit itself found the phrase “assisted, or otherwise participated in” to be ambiguous. The Board noted that other circuits have differed on the meaning of the phrase. For one example, in Suzhen Meng v. Holder, 770 F.3d 1071, 1074 (2d Cir. 2014) [PDF version], the Second Circuit established a four-part test for determining whether the persecutor bars to asylum and withholding apply. However, the Board explained that it discovered “some consensus” in the decisions of the circuits that addressed the issue. The Board detailed that the circuits have determined that the Government must show evidence of:
- A nexus between the alien's acts and the persecution or extrajudicial killing; and
- The alien's scienter, or prior or contemporaneous knowledge of the effect of his or her actions.
The Board determined that the phrase “assisted, or otherwise participated in” found in section 212(a)(3)(E)(iii) of the INA is ambiguous. Under Chevron, administrative agencies are entitled to deference in interpreting ambiguous statutory phrases, provided that the interpretation is “reasonable.” After agreeing with the Ninth Circuit that the phrase is ambiguous, the Board declined to follow Miranda Alvarado. Instead, the Board opted to exercise its authority as an administrative agency interpreting the immigration laws under Chevron and Nat'l Cable & Telecommc'ns Ass'n v Brand X Internet Serv., 545 U.S. 967 (2005) [PDF version]. Brand X requires courts to afford Chevron deference to agencies even in cases where the courts had previously interpreted an ambiguous phrase in a contrary manner.
The Board began by adopting the “continuum of conduct” standard established in Fedorenko and cited to in both Miranda Alvarado and Matter of D-R- 2011.
Next, the Board looked to the Attorney General decision in Matter of A-H-, 23 I&N Dec. at 783-85. The Board explained that this decision remains precedent and is therefore binding on the Board as a published decision of the Attorney General. The Board explained that the Attorney General cited to a dictionary in defining the term “assist” as meaning “to give support or aid: help.” The Attorney General defined “to participate” as “to take part in something (as an enterprise or activity) usu[ally] in common with others.” Id. at 784. The Attorney General determined that the phrases “assist” and “to participate” should be “given broad application.” Id. The Attorney General also determined that adjudicators must evaluate the 'totality of the relevant conduct…” Id. at 785.
The Board concluded that the proper and most useful standard for determining whether an alien “assisted, or otherwise participated” in extrajudicial killings is based on the agreed upon principles of the various circuit courts.
The Board stated that adjudicators must consider “(1) the nexus between the alien's role, acts, or inaction and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.”
Regarding the “nexus” in the first prong, the Board actually agreed with the Ninth Circuit that in cases where an alien does not have “direct personal involvement,” it is important to consider “the degree of relation” of the acts of the alien to the persecution. However, the Board not did not consider it useful to distinguish between “active” and “passive” participation, noting that many forms of “passive” participation would be sufficient. Rather, the Board stated that adjudicators should consider “whether the alien's role was material or integral to the killing…” The Board did agree with the Ninth Circuit that acquiescence or membership in an organization is not sufficient by itself to establish culpability.
Regarding the second prong, the Board noted that scienter has been considered by circuits other than the Ninth, which did not address it in Miranda Alvarado. The Board noted that it was not a question in Miranda Alvarado since the alien in that case was present when the persecution occurred. The Board explicitly agreed with both the Second and Fourth Circuits that the government is not required to establish that the persecutor have had “specific actual knowledge” that his or her actions assisted in a particular act of extrajudicial killing. The Board set a lesser standard that “the alien must have sufficient knowledge that the consequences of his actions may assist in acts of extrajudicial killing.”
The Board held that this does not disturb its precedents regarding “command responsibility” in both Matter of D-R- 2011 and Matter of Vides-Casanova, 26 I&N Dec. 494 (BIA 2015) [PDF version]. The Board thus continues to hold that “[a]n individual in a position of authority over the perpetrators of extrajudicial killing or persecution, such as a military commander, may be held accountable for failure to prevent his subordinates from committing such acts.”
The Board ultimately affirmed its decision from Matter of D-R- 2011 that the respondent was removable under section 237(a)(4) for having assisted in extrajudicial killings.
The Board explained that the record supported the conclusion that the respondent had assisted in loading onto buses 200 Bosnian men who were subsequently killed. It determined, regarding the first prong of its new test, that “[t]here is a sufficient nexus between the actions of the respondent and the extrajudicial killings.” This is because, despite not being present for the killings, he had custody of the men and assisted in loading them onto buses that would transport them to the location where they would be killed. The Board noted that this finding was consistent with similar cases from Federal circuit courts, including Quitanilla v. Holder, 758 F.3d 570, 577 (4th Cir. 2014) [PDF version] and Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006) [PDF version]. The Board added that the respondent's role in the extrajudicial killings in the instant case appeared to be more direct than the role of the alien in Miranda Alvarado, whom the Ninth Circuit found to be subject to the persecutor bar. The Board observed that the Ninth Circuit noted that the alien in Miranda Alvarado did not arrest the victims or take them to the place of torture.
Regarding the second prong of its new test, the Board held that the respondent in the instant case had the requisite scienter (or prior or contemporaneous knowledge) that the 200 Bosnian Muslim men he helped arrest and load onto buses were being taken to their deaths. This finding was based in part on the assertion — denied by the respondent — that the respondent was aware of the earlier extrajudicial killings at the Kravica warehouse. However, the Board incorporated by reference its determinations from Matter of D-R- 2011 (25 I&N Dec. at 451) that the Immigration Judge did not make a clear error in finding the respondent's claims of ignorance to be implausible. In addition to the respondent's proximity to the Kravica warehouse during the massacre only days before, he actually assisted in the capture of the 200 Bosnian Muslim prisoners. The Board noted that Butler, the expert witness, had testified that when the respondent had participated in the sweep to arrest the men, it was already well known that the Serbian military and Serbian Special Police were conducting mass executions of Bosnian Muslims.
The Board concluded that the Immigration Judge had drawn reasonable inferences from the totality of the record “to conclude that the respondent assisted in the commission of extrajudicial killings because he had sufficient knowledge that the 200 Bosnian Muslims would be killed unlawfully.” This determination was based on the respondent's:
- Responsibilities; and
Because the Board could find no clear error in the Immigration Judge's conclusions, it again reaffirmed the Immigration Judge's determination that the respondent was removable under section 237(a)(4)(D) of the INA.
In Matter of D-R- 2017, the Board provided its own definition of “assisted, or otherwise participated in,” along with a test, in the extrajudicial killings context. Presumably, the Board's definition will apply in the context of the persecutor bar to asylum and withholding of removal as well, considering the Board's analysis and the identical statutory terms. It remains to be seen whether the Ninth Circuit opts to afford deference to the Board's decision over its own decision in Miranda Alvarado, although it seems likely that it will considering that the Ninth Circuit noted in Miranda Alvarado that the statutory phrase “assisted, or otherwise participated in” was ambiguous.
An alien facing removal charges or other immigration consequences over allegations that he or she participated in extrajudicial killings or persecuted others should consult with an experienced immigration attorney immediately for case-specific guidance.