599 F. App'x 646
9th Cir.2015Background
- Radojkovic, a Bosnian national, seeks review of BIA’s dismissal of his appeal from an IJ’s removal order.
- IJ found Radojkovic removable for material misrepresentation to procure entry under 8 U.S.C. §1182(a)(6)(C)(i) and for participating in an extrajudicial killing under §1182(a)(3)(E)(iii) & §1227(a)(4)(D).
- BIA affirmed the IJ, but Omits the second prong of the materiality test requiring government to show a fair inference that a disqualifying fact actually existed.
- Court notes Chevron and Brand X deference arguments are unrebutted by BIA’s explicit intent to interpret statute; BIA’s omission raises interpretive ambiguity.
- Court remands to BIA to clarify its intent regarding materiality’s second prong and the Miranda Alvarado two‑part test for aiding an extrajudicial killing.
- Petition granted and remanded to the BIA for clarification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Materiality standard for misrepresentation | Radojkovic argues BIA erred by omitting the 'fair inference' prong. | BIA relied on Forbes but did not articulate the second prong’s application or intent. | Remanded for clarification on whether second prong was intended. |
| Participation in extrajudicial killing test | Radojkovic contends Miranda Alvarado two‑part test applies to determine culpability. | BIA referenced a continuum of conduct but did not apply Miranda Alvarado’s two‑part test. | Remanded for clarification on relevance and application of Miranda Alvarado test. |
Key Cases Cited
- Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) (materiality requires evidence to raise inference of a disqualifying fact)
- Kungys v. United States, 485 U.S. 759 (U.S. 1988) (governs materiality standard in misrepresentation cases)
- Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006) (requires personal involvement and purposeful assistance for persecution-related culpability)
- Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir. 2004) (BIA must intend to issue an interpretation for Chevron deference to apply)
- Hernandez v. Ashcroft, 345 F.3d 824 (9th Cir. 2003) (BIA must show intent to interpret term for deference to apply)
- In re D-R-, 25 I. & N. Dec. 445 (B.I.A. 2011) (BIA materiality framework in removal/eligibility contexts)
- In re Vides Casanova, 26 I. & N. Dec. 494 (B.I.A. 2015) (discusses command responsibility under related provisions)