Introduction: Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017)

On May 18, 2017, 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]. The Board’s decision concerned situations where the record of an alien in removal proceedings contains information from which a reasonable factfinder could conclude that one or more grounds of mandatory denial of an application for relief apply to the alien. The Board held that, under 8 C.F.R. 1240.8(d) (2016), the alien bears the burden in such cases of proving by a preponderance of the evidence that such grounds of mandatory denial of the application for relief do not apply.

In this article, we will examine the facts, procedural history, and broader ramifications of the Board’s decision in the Matter of M-B-C-.

Facts and Procedural History: 27 I&N Dec. at 31-32

The respondent, a native and citizen of Bosnia-Herzegovina, was admitted to the United States in refugee status on September 29, 1988. On January 15, 2002, the respondent’s status was adjusted to that of a lawful permanent resident (LPR).

On August 25, 2011, the Department of Homeland Security (DHS) charged the respondent as removable and initiated removal proceedings. The respondent was charged as being removable under section 237(a)(1)(A), as an alien who was inadmissible at the time of entry or adjustment of status (i) under section 212(a)(6)(C)(i) as an alien who had procured admission and adjustment of status by fraud or willful misrepresentation of a material fact, and (ii) under section 212(a)(7)(A)(i)(I), as an immigrant who did not possess a valid passport.

The DHS’s charges stemmed from the allegation that the respondent had omitted information about his military service during the Bosnian War on his Form I-590, Application for Classification as Refugee, and his Form I-485, Application to Register Permanent Residence or Adjust Status. The respondent conceded that he was removable as charged, and he applied for various forms relief from removal, including a waiver of deportability under section 237(a)(1)(H) of the INA.

In proceedings, the Immigration Judge heard testimony from both the respondent and a historian with DHS who testified about the Bosnian War. The Immigration Judge found that the respondent was not a credible witness. The Immigration Judge held that the respondent was ineligible for a section 237(a)(1)(H) waiver of deportability because he had failed to establish that he was not barred from section 237(a)(1)(H) relief as an alien who had assisted or otherwise participated in genocide or as an alien who had committed, ordered, incited, assisted, or otherwise participated in the commission of any extrajudicial killing. The Immigration Judge denied the respondent’s applications for asylum and withholding of removal on the basis that he was subject to the persecutor bars found in sections 208(b)(2)(A)(1)(i) and 241(b)(3)(B)(i) respectively. Accordingly, the Immigration Judge denied all of the respondent’s applications for relief from removal.

Appeal: 27 I&N Dec. at 32

The respondent appealed the Immigration Judge’s adverse decision to the BIA. He argued that the Immigration Judge was incorrect in concluding that he was barred from seeking a section 237(a)(1)(H) waiver based on his conduct during the Bosnian War. He also argued that the Immigration Judge improperly determined that he was subject to the persecutor bars to asylum and withholding of removal. The primary question was whether the DHS had to prove that the respondent was subject at least one mandatory denial ground to relief, or whether the respondent had to prove that he was not subject.

Legal Standards for Waiver: 27 I&N Dec. at 32-33

The respondent sought a waiver of deportability under section 237(a)(1)(H). This waiver applies to aliens subject to removal for having been inadmissible at the time of entry or adjustment of status. If an alien is eligible for the section 237(a)(1)(H) waiver, the decision of whether to grant the waiver is discretionary. However, certain aliens are barred from eligibility for the section 237(a)(1)(H) waiver. Any alien who is described in section 237(a)(4)(D) of the INA is ineligible for waiver. Section 237(a)(4)(D) encompasses aliens described in sections 212(a)(3)(E)(ii) and 212(a)(3)(E)(iii)(II) of the INA.

Relevant to the instant case, section 212(a)(3)(E)(ii) contains an inadmissibility provision for any alien who ordered, incited, assisted, or otherwise participated in “genocide.” The term “genocide” is defined in 18 U.S.C. 1091(a) (2012). The pertinent part of 18 U.S.C. 1091(a) reads as follows:

  • Basic Offense.-Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such-
    • kills members of that group;
    • causes serious bodily injury to members of that group;
    • causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
    • subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
    • imposes measures intended to prevent births within the group; or
    • transfers by force children of the group to another group;

Also relevant to the instant case, section 212(a)(3)(E)(iii)(II) renders inadmissible: “[a]ny alien who, outside the United States, has committed, ordered, incited, assisted, or otherwise participated in the commission of … under color of law any foreign nation any extrajudicial killing.” The Board cited to the pertinent definition for “extrajudicial killing,” found in the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, sec. 3(a), 106 Stat. 73, 73:

a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

The Board explained that under section 240(c)(4)(A) of the INA, an alien seeking relief from removal has the burden of establishing eligibility for the relief sought. Under 8 C.F.R. 1240.8(d), if the evidence suggests that an alien is subject to one or more grounds for the mandatory denial of an application for relief from removal, the alien will have the burden of establishing that he or she is not subject to such grounds.

Board’s Analysis: 27 I&N Dec. at 34

The Board reviewed the respondent’s challenges to the Immigration Judge’s adverse credibility determination, to the Immigration Judge’s finding that he was subject to mandatory bars to section 237(a)(1)(H) relief, and and to the Immigration Judge’s conclusion that he was ineligible for asylum and withholding of removal. The Board ultimately denied the respondent’s appeal on all points. In the subsequent sections, we will examine the Board’s analysis regarding each of the respondent’s claims in turn.

Board Finds No Clear Error in Adverse Credibility Determination: 27 I&N Dec. at 32, 34-35

The Board reviewed the Immigration Judge’s adverse credibility determination for clear error, the sole basis upon which the Board could disregard that determination. The Board found that it did not find any clear error in the Immigration Judge’s adverse credibility determination. Rather, the Board stated that the decision was “based on specific and cogent reasons, including inconsistencies in the respondent’s testimony, as well as an implausible aspect of his testimony.”

The Immigration Judge had heard testimony from Michael MacQueen, a senior historian in the Human Rights Law Division of DHS. MacQueen testified that the case involved events that occurred during the Bosnian War in the 1990s. The War was thought between the Army of the Republic of Srpska (VRS), composed mostly of Eastern Orthodox Serbs; the Army of the Republic of Bosnia and Herzegovina, composed mostly of Muslim Bosniaks; and the Croatian Defense Counsel, which was composed mostly of Roman Catholic Croats. MacQueen testified that the war was largely waged against civilians and featured ethnic cleansing. Notably, in July of 1995, the VRS commenced an offensive against Srebrenica which resulted in the massacre of approximately 8,000 men and boys.

MacQueen testified that the respondent served in the VRS from May 1992 to July of the same year. The respondent served in the town of Ilijaš. MacQueen testified that VRS soldiers engaged in summary executions in and around Ilijaš during the time that records indicated the respondent was stationed there.

MacQueen then testified that the respondent then took a leadership role as a company commander in the Bratunac Light Infantry Brigade until the fall of 1993. MacQueen testified that during the time the respondent was in a leadership role in the Bratunac Light Infantry Brigade, the Brigade was involved in the systematic expulsion of the civilian population and the killing of “hundreds, if not thousands” of Muslim civilians.

MacQueen testified that the respondent joined the Ministry of Internal Affairs Bratunac Police, and served there until the fall of 1994. He testified that the Bratunac Police did not commit any significant human rights abuses during the period in which the respondent served.

MacQueen then testified that the respondent served in the Janja Special Police from November of 1994 to June 1996. He explained that the special police units from Janja were deployed in the area of operations of Srebrenica during the July 1995 massacre. Furthermore, members of the Janja Special Police were involved in killing and capturing civilians who attempted to escape the massacre.

The respondent contradicted aspects of MacQueen’s testimony regarding the details of his service. He denied ever having a part in capturing, killing, or forcibly expelling civilians while serving in the VRS. He categorically denied serving with the special police in Janja, instead claiming that he had served in the reserve police force. However, the Board noted that MacQueen’s testimony was supported by extensive documentary evidence in the record. Furthermore, the Board stated that the respondent had “submitted written pleadings admitting the factual allegations contained in the notice to appear…”

The respondent testified that he served in the VRS from 1992 to 1993, but denied that he possessed an official rank. He confirmed that he had been a company commander in the Bratunac Light Infantry brigade and that he commanded approximately 100 soldiers. He denied ever having had a part in capturing, killing, or forcibly expelling civilians while he was in the VRS. The respondent confirmed that he had been transferred to the Bratunac Police in 1993.

However, the respondent denied that he had served with the Janja Special Police. He testified that he had served in the reserve police force. The Board noted that the respondent’s testimony was inconsistent both with MacQueen’s testimony and with the evidence in the record. The record contained a decision prepared by the Municipality of the Bijelina Department of Veterans and Civil Protection which certified that the respondent had served with the Janja special oolice during the period that MacQueen testified he had served. Furthermore, MacQueen testified that the English translation of the document that had been provided was incorrect and that the original document indicated that the respondent served in the Janja special police. The respondent conceded the latter point on appeal.

The Board noted that the record contained photographs of the respondent wearing a uniform that MacQueen testified was indicative of service in the Janja Special Police. Furthermore, the respondent had submitted written pleadings admitting the factual allegations contained in the notice to appear. The Board held that it found no clear error in the Immigration Judge’s finding that the respondent had served in the Janja special police in the times testified to by MacQueen, and furthermore agreed with the Immigration Judge that the respondent’s contrary testimony undermined his credibility as a witness.

Finally, the respondent testified that he had never heard of any Muslim civilians being captured, killed, or forced to leave their homes during his time of service from 1992 to 1996, except for some incidents that occurred on the other side of Bosnia. The Board agreed with the Immigration Judge that the respondent’s claims of ignorance of human rights abuses committed by the VRS and by the Bratunac Light Infantry Brigade during his time of service were implausible. Furthermore, the Board held that it was reasonable for the Immigration Judge to conclude that the respondent’s implausible testimony further undermined his credibility as a witness.

Respondent Fails to Show He is Not Inadmissible for Extrajudicial Killings: 27 I&N Dec. at 36-38

The Board explained that the respondent did not offer evidence to rebut or challenge the accuracy of MacQueen’s testimony regarding the following events:

1. Summary executions in and around Ilijaš between May and July of 1992;
2. Summary executions in and around Bratunac between July 1992 and November 1993; and
3. Summary executions in and around Srebrenica in July 1995.

The respondent did not meaningfully challenge the Immigration Judge’s determination that the above events constituted extrajudicial killings within the meaning of section 212(a)(3)(E)(iii)(II) of the INA. The respondent also conceded that he had been operating under color of law during his military and police service.

However, the respondent argued that the record was insufficient to indicate that he may have committed, ordered, incited, assisted, or otherwise participated in the commission of any extrajudicial killings. The respondent based his argument on the fact that the DHS did not provide any direct evidence of his personal involvement in extrajudicial killings or that he was aware of any of the summary executions or human rights abuses described in MacQueen’s testimony.

The Board explained that, under the Attorney General (AG) decision in the Matter of A-H-, 23 I&N Dec. 774, 784 (A.G. 2005) [PDF version], remanded on other grounds, Haddam v. Holder, 547 F.App’x 306 (4th Cir. 2013), the terms “committed, ordered, incited, assisted, or otherwise participated” under the INA “are to be given broad effect” and “do not require direct personal involvement” in the acts in question in a given case. In the Matter of D-R-, 25 I&N Dec. 445, 453 (BIA 2011) [PDF version], remanded on other grounds, Radojkovic, v. Holder, 599 F.App’x 646 (9th Cir. 2015), the Board held that there is a continuum from passive acceptance of extrajudicial killings, which does not meet the legal standard for inadmissibility, to active participation in such killings, which does meet the legal standard for inadmissibility. In D-R-, the Board held that, where an alien had command responsibility, he or she will be found to be inadmissible under section 212(a)(3)(E) if it is established that he or she “knew or should have known that his [or her] subordinates committed unlawful acts covered by the statute and failed to prove that he [or she] took reasonable measures to prevent or stop such acts or investigate in a genuine effort to punish the perpetrators.”

The Board explained that the instant case was distinguishable from the Matter of D-R- with respect to which party bore the burden of proof. In Matter of D-R-, the DHS bore the burden of demonstrating by clear and convincing evidence that the alien in the case was removable under section 237(a)(4)(D). However, the Board explained that under 8 C.F.R. 1240.8(d), if the evidence “indicates” that mandatory denial grounds “may apply” to an alien seeking relief from removal, the alien has the burden to show that such grounds do not apply. The DHS had already established through clear and convincing evidence that the respondent was removable on other grounds. The question of his eligibility for a waiver of deportability was distinct.

The Board took the position that 8 C.F.R. 1240.8(d) requires a showing by the government that is less than the preponderance (weight) of the evidence standard. To this effect, the Board noted the regulation’s use of the terms “indicates” and “may apply,” and it stated that had the regulation intended for the higher preponderance of the evidence standard to apply, it would have said as much. Accordingly, the Board articulated the following rule:

[W]here the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of the application may apply, the alien bears the burden under 8 C.F.R. 1240.8(d) to prove by a preponderance of the evidence that such grounds do not apply.

The Board explained that its reading of 8 C.F.R. 1240.8(d) is supported by the decision of the United States Court of Appeals for the Eighth Circuit in Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) [PDF version] [see article].

The Board agreed with the Immigration Judge that the respondent’s service in the VRS around Ilijaš at a time when VRS soldiers engaged in extrajudicial killings was sufficient to indicate that he may have committed, ordered, incited, assisted, or otherwise participated in those extrajudicial killings, thus indicating that he may have been an alien described in section 212(a)(3)(E)(iii)(II) of the INA. The Board agreed with the Immigration Judge that the respondent’s testimony that he had no knowledge of any extrajudicial killings that occurred in or around Ilijaš in the time in which he served there lacked credibility, and was insufficient to meet his burden.

The Board also agreed that the respondent’s service in the Janja Special Police in a location where its members engaged in extrajudicial killings during the time such killings occurred was sufficient to indicate that he may have been an alien described in section 212(a)(3)(E)(iii)(II) of the INA. The Board further agreed with the Immigration Judge that the respondent’s incredible testimony outright denying that he had served in Srebrenica at that time was insufficient to meet his burden to prove by a preponderance of the evidence that he had not engaged in any extrajudicial killings there.

Finally, the Board held that MacQueen’s testimony and the documentary evidence submitted by the DHS was sufficient for establishing that the Brautanic Light Infantry Brigade was involved in the extrajudicial killing of Bosniak Muslims between late 1992 and early 1993, during the time in which the respondent was a company commander. The Board agreed that the evidence was sufficient to establish that the respondent, as an individual with command responsibility, knew or should have known of the extrajudicial killings in his area of responsibility, indicating that he may have been an alien described in section 212(a)(3)(E)(iii)(II). The Board further agreed that the respondent’s incredible testimony that he was not aware of any such extrajudicial killings in his area of responsibility was insufficient for meeting his burden of proving by the preponderance of the evidence that he was not described in section 212(a)(3)(E)(iii)(II).

Respondent Fails to Show that He is Not Inadmissible for Genocide: 27 I&N Dec. at 36

The respondent did not challenge the Immigration Judge’s determination that the summary execution of 8,000 Bosniak Muslims in Srebrenica in July 1995 constituted genocide within the meaning of section 212(a)(3)(E)(ii). The record showed that the Janja Special Police were responsible, in part, for those killings. Furthermore, record showed that the respondent served in the Janja Special Police in a location where its members engaged in genocide during the time when the genocide occurred.

The Board agreed with the Immigration Judge that the evidence in the record was sufficient to suggest that the respondent may be inadmissible under section 212(a)(3)(E)(ii). The Board concluded that the respondent’s “incredible testimony” denying that he had served in the Janja Special Police in or around Srebrenica at the time the genocide occurred was insufficient for meeting his burden of showing that he was not inadmissible under section 212(a)(3)(E)(ii).

Respondent Fails to Show that He is Not Barred from Asylum/Withholding: 27 I&N Dec. at 38-39

The respondent did not challenge the Immigration Judge’s determination that the summary executions we have discussed in this article qualified as persecution of Bosnians on account of a statutorily protected ground. The Board agreed with the Immigration Judge that the evidence was sufficient to establish that the respondent may have assisted or otherwise participated in the persecution. The Board concluded that the respondent’s “incredible testimony” was insufficient for meeting his burden that he was not subject to the persecutor bars to asylum and withholding of removal under sections 208(b)(2)(A)(1)(i) and 241(b)(3)(B)(i) respectively.

Decision

The Board found that the DHS presented extensive evidence showing that the respondent was a member of military and police units that engaged in extrajudicial killings and genocide during the Bosnian War, and that his service in those units occurred at times and places when and where extrajudicial killings and genocide occurred. The Board found that this evidence made it reasonable for the Immigration Judge to conclude that the respondent may be an alien described in sections 212(a)(3)(E)(ii), 212(a)(3)(E)(iii)(II), and 237(a)(4)(D) of the INA. The Board agreed with the Immigration Judge that the respondent’s incredible testimony combined with his proffer of insufficient evidence did not satisfy his burden of showing by the preponderance of the evidence that he was not described in the preceding provisions. Accordingly, the Board upheld the Immigration Judge’s adverse credibility finding and affirmed her decision that the respondent did not establish that he was eligible for a section 237(a)(1)(H) waiver of deportability, asylum, or withholding of removal. The Board dismissed the respondent’s appeal.

Conclusion

The key point of the decision is the Board’s interpretation of 8 C.F.R. 1240.8(d). The Board made clear that, in the context of an application for relief from removal, if the record contains evidence from which a reasonable factfinder could conclude that the alien is subject to at least one mandatory denial ground to relief from removal, the alien bears the burden of showing by the preponderance of the evidence that he or she is not subject to any mandatory denial grounds to relief from removal. The Board made clear that, in the waiver context, the government does not have to establish by the preponderance of the evidence that a mandatory denial ground applies.

If an alien is in removal proceedings, he or she should consult with an experienced immigration attorney immediately. An attorney will be able to determine if the alien has any avenues for seeking relief from removal, and how best to pursue such avenues.

Please see our article on the Eighth Circuit decision in Maric v. Sessions to read about a similar case on the same core issue [see article].