25 I. & N. Dec. 445
BIA2011Background
- Respondent is a Bosnian native and US lawful permanent resident, who admitted to serving as a special police officer in the Republic of Srpska during the Bosnian War and omitting that fact from his refugee application.
- DHS charged respondent with willful misrepresentation rendering him inadmissible under 8 U.S.C. § 1227(a)(1)(A) and removal under § 237(a)(1)(A) based on the omission.
- DHS also charged removal under § 237(a)(4)(D) based on evidence that respondent aided, ordered, or participated in an extrajudicial killing during the Srebrenica-related offenses, with his unit involved in capturing victims on the Bratunac-Konjevic Polje road.
- Evidence included ICTY/Bosnian War records, real-time field reports, MUP records, expert military testimony, and a videotape; contemporaneous mass executions were alleged (e.g., Kravica warehouse killings).
- Respondent argued the omission was not material, and that the IJ’s inference of involvement in extrajudicial killings was impermissible speculation; he also challenged evidentiary and procedural aspects.
- Board sustained the appeal in part, dismissed in part, and remanded for further proceedings, including a limited remand to address protection under the Convention Against Torture.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Material misrepresentation | DHS argues omission was willful and material to refugee eligibility. | Respondent claims omission not material or willful. | Omission is a willful material misrepresentation rendering removal under 237(a)(1)(A). |
| Extrajudicial killings | DHS proved by clear and convincing evidence respondent assisted in extrajudicial killings under color of law. | Respondent contends the IJ relied on speculation; no direct proof of participation. | DHS established removal under 237(a)(4)(D) based on totality of record and inference from conduct. |
| Evidence and expert testimony | DHS evidence, including expert testimony, is probative and properly admitted. | Evidence and expert qualification/object chain of custody issues were asserted as improper. | Evidence properly admitted and weighted; no reversible error in admission or weight. |
| Remand and relief scope | Record remand appropriate to address relief options and potential deferral under CAT. | Proceedings should terminate or asylum/withdrawal considerations should be revisited. | Record remanded to consider deferral of removal under CAT; asylum/withholding denied due to removability. |
Key Cases Cited
- Kungys v. United States, 485 U.S. 759 (U.S. 1988) (materiality requires concealment capable of influencing decisions)
- United States v. Matsumaru, 244 F.3d 1092 (9th Cir. 2001) (test for materiality of misrepresentation in immigration cases)
- Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005) (broad interpretation of persecution-related participation)
- Kalejs v. INS, 10 F.3d 444 (7th Cir. 1993) (assistance in persecution may be inferred from role)
- Fedorenko v. United States, 449 U.S. 490 (U.S. 1981) (command responsibility and persecution framework)
- Matter of J-B-N- & S-M-, 24 I&N Dec. 208 (BIA 2007) (importance of contextual evidence in persecutor determinations)