27 I. & N. Dec. 105
BIA2017Background
- Respondent, a Bosnian native admitted as a refugee (1999) and later LPR (2002), omitted from his I-590 that he served as a Special Police/platoon commander during the Bosnian War.
- DHS charged removability for (1) willful misrepresentation of a material fact on his refugee application (8 U.S.C. § 1182(a)(6)(C)(i)) and (2) assisting or otherwise participating in extrajudicial killings (8 U.S.C. § 1182(a)(3)(E)(iii)(II)).
- Evidence showed respondent’s platoon secured the Konjevic Polje road in July 1995; about 200 Bosnian Muslim men surrendered and were loaded onto buses and later killed; respondent admitted custody of and participation in loading the captives.
- Immigration Judge found the omission material and that respondent assisted in extrajudicial killings; Board affirmed; Ninth Circuit remanded for clarification on tests applied for materiality and assistance/participation.
- On remand, the Board (1) adopts the Kungys “natural tendency” test (and Matter of Bosuego burden-shifting) to define “material” and rejects the Ninth Circuit’s Forbes/"fair inference" test for inadmissibility cases, and (2) articulates a two-part standard for "assisted or otherwise participated": (a) nexus between acts/role and the killing, and (b) scienter (prior or contemporaneous knowledge).
- Applying those standards, the Board reaffirmed that the omission was material (it shut off inquiry likely to disclose disqualifying facts) and that respondent’s custody/transport role with sufficient knowledge amounted to assistance in extrajudicial killings; removal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondent’s omission of Special Police service was a “material” misrepresentation under § 212(a)(6)(C)(i) | DHS: omission tended to shut off inquiry relevant to asylum admissibility and would predictably disclose disqualifying facts | Radojkovic/respondent: service alone isn’t per se disqualifying; omission not material absent proof it would have led to denial | Adopted Kungys “natural tendency” test; omission was material because it shut off relevant inquiry and respondent failed to rebut presumption |
| Whether Forbes/“fair inference” test applies to inadmissibility/materiality | DHS: Agency should define “material”; Forbes fair-inference test need not control; Chevron deference appropriate | Ninth Circuit (Forbes): two-part test (natural tendency + fair inference) governs materiality in its circuit | Board declines to follow Forbes fair-inference prong for § 212(a)(6)(C)(i); exercises Chevron authority and applies Kungys natural-tendency + Bosuego burden-shift; notes result would be same even under Forbes |
| Proper standard to determine “assisted or otherwise participated” in extrajudicial killing | DHS/Board: adopt agency standard considering nexus and scienter; evaluate totality of conduct including command responsibility where relevant | Ninth Circuit (Miranda Alvarado): used two-prong personal involvement + purposeful assistance test for persecutor bar; asked for clarification | Board adopts two-factor test (nexus between acts and killing; scienter—prior/contemporaneous knowledge) consistent with Fedorenko continuum and other circuits; declines to follow Miranda Alvarado as binding agency-wide rule |
| Whether respondent’s actions met the "assisted/participated" standard | DHS: custody of captives and assistance in loading buses, with knowledge of killings, provided sufficient nexus and scienter | Respondent: denied presence at killings and argued lack of knowledge; contended mere membership or nonviolent acts insufficient | Held respondent had custody, helped load captives, and had sufficient knowledge that transport would result in death; actions materially contributed to extrajudicial killings and removal affirmed |
Key Cases Cited
- Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) (applied a two-part materiality test in Ninth Circuit decisions)
- Kungys v. United States, 485 U.S. 759 (1988) (materiality as misrepresentation having a natural tendency to influence decisionmaker)
- Maslenjak v. United States, 137 S. Ct. 1918 (2017) (requirements for causal showing that misrepresentation would prompt investigation that ‘would predictably have disclosed’ disqualification)
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (Ninth Circuit’s persecutor-bar test emphasizing personal involvement and purposeful assistance)
- Fedorenko v. United States, 449 U.S. 490 (1981) (continuum of conduct for assistance in persecution; illustrative examples of minimal vs. integral participation)
- Chevron U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837 (1984) (agency statutory-interpretation deference)
- National Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretations may control even where circuit precedent differs)