On September 14, 2017 the Board of Immigration Appeals (BIA or Board), in another extremely lengthy opinion, ruled on the appeal of a native of Bosnia-Herzegovina who had been found removable by the Immigration Judge (IJ) both for willful misrepresentation of a material fact under INA § 212(a)(6)(C)(i) for failing to disclose on his refugee application that he was a Special Police officer and Squad/Platoon commander during the Bosnian War and for participating in the extrajudicial killing of Bosnian Muslims, a separate ground under INA § 212(a)(3)(E)(iii)(II). Initially, the BIA affirmed the IJ’s ruling and remanded the record to allow the respondent to apply for deferral of removal but respondent refused to do so and the IJ certified the case to the Board, which then dismissed the appeal. Respondent was subsequently removed, but on remand, the Ninth Circuit of Appeals asked for clarification of the BIA’s analysis in finding 1) that respondent’s failure to disclose his service as Serbian Special Police officer on his refugee application was a material misrepresentation and 2) that he assisted in the extrajudicial killing of Bosnian civilians, per Matter of D-R-, 25 I&N Dec. 445 (BIA 2011). In the instant decision, the BIA reaffirmed its earlier ruling, clarifying its standard for determining if one has “assisted, or otherwise participated in the commission of … any extrajudicial killing.”
Initially, in its analysis, the Board noted that the first question was whether respondent’s omission from his refugee application that he had been a Special Police Officer was a “material” misrepresentation. Referencing the Ninth Circuit’s opinion in Forbes v. INS, 48 F.3rd 439 (9th Cir. 1995), which defined the materiality of a misrepresentation via two inquiries: 1) whether the concealments have a natural tendency to influence the Government’s decision regarding a respondent’s admission and 2) whether there is sufficient evidence to raise a fair interference that a statutorily disqualifying fact actually existed, the Board upheld the DHS appellate argument that it need not apply the 2nd part of the Forbes test because the term “material” in the Act is ambiguous and, per the tenets of deference set forth in the U.S. Supreme Court cases “Chevron” and “Brand X”, the BIA may exercise its authority to explain its own construction of the term. Thus, the Board declined to adopt or apply the Forbes “fair inference” test in questions of admissibility under INA § 212(a)(6)(C)(i), as other circuits differ on whether this part of the test applies to the materiality of a misrepresentation. Instead, it held that the most reasonable reading is that the “fair reference” test applies to whether one procured an immigration benefit by his misrepresentation, not to whether the misrepresentation is “material”; it therefore adopted the “natural tendency” test as the general standard for determining the materiality of a misrepresentation. Specifically, held the BIA, it will consider whether the misrepresentation tends to shut off a line of inquiry relevant to admissibility and that would predictably have disclosed other facts relevant to eligibility for a visa, other documentation, or admission to the U.S.
The Board also reaffirmed its conclusion in Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980) that after DHS meets its burden of proof, the burden shifts to the respondent “to establish that no proper determination of inadmissibility could have been made.”
Next, as to the materiality of respondent’s misrepresentation, the BIA found that the IJ had properly determined that respondent’s service in the Special Police would have a “natural tendency” to influence the asylum officer’s decision on the refugee application, e.g., was an omission that shut off a relevant line of inquiry. Further, respondent produced no evidence rebutting DHS’s showing of materiality and thus could not establish he would have been admissible had the true facts been disclosed; the Board therefore held that respondent “willfully made a material misrepresentation.”
The BIA then dissected the impact of Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) on determining whether one has “assisted” in persecution under the persecutor bar to political asylum, noting that the case holds that in evaluating potentially persecutorial conduct, it is necessary to examine the relation of one’s acts to the persecution itself, including whether one acted in self-defense, how long the actor was involved, and what threats were used to compel assistance. However, concluded the Board, the phrase “assisted, or otherwise participated in” is ambiguous and under the Chevron and Brand X standards of deference, the BIA need not follow the Miranda Alvarado definition.
Constructing its own standard, the Board began by adopting the “generally accepted premise” that there is a continuum of conduct against which one’s actions must be evaluated to determine whether he assisted or otherwise participated in extrajudicial killing. Citing to the Attorney General’s decision in Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), the BIA noted that to “assist” means to “give support or aid: help”, while “to participate” means “to take part in something (as an enterprise or activity)”; that these terms are to be given “broad application”; and, an adjudicator must look at the totality of the relevant conduct to determine whether the persecutor bar applies, i.e., whether respondent’s role was material or integral to the killing. Further, held the BIA, while mere acquiescence or membership in an organization is insufficient, the evidence need not show that an alleged persecutor “had specific actual knowledge that his actions assisted in a particular act” of extrajudicial killing. Rather, the accused must have had sufficient knowledge that his actions might assist in such persecution to make such actions culpable.
Because here, the respondent admitted that about 200 men were left with him and his unit before they were loaded onto buses, the IJ found that there is sufficient nexus between his actions and their killings, i.e., the respondent “assisted” in loading them onto the buses having the requisite scienter (prior or contemporaneous knowledge) that the men were being transported to their deaths. As the Board found no clear error in this determination, the IJ’s decision was reaffirmed and the appeal dismissed. Matter of D-R-, 25 I&N Dec. 105 (BIA 2017).