M-B-C
27 I. & N. Dec. 31
| BIA | 2017Background
- Respondent, a Bosnian national admitted as a refugee in 1998 and later an LPR, conceded removability based on alleged fraud and failure to disclose military/police service during the Bosnian War.
- IJ denied respondent’s section 237(a)(1)(H) waiver and applications for asylum and withholding, finding him not credible and subject to the persecutor bar.
- DHS presented expert testimony and documentary evidence placing the respondent in VRS units, Bratunac Light Infantry Brigade (company commander), Ministry of Internal Affairs Bratunac Police, and Janja Special Police at times/places where mass summary executions and the Srebrenica massacre occurred.
- Respondent denied participation or knowledge of atrocities and disputed service in Janja Special Police; documentary evidence and photos contradicted those denials.
- Board affirmed IJ: respondent’s testimony was incredible; his service where extrajudicial killings/genocide occurred indicated he may have participated or had command responsibility; he failed to prove by a preponderance that bars did not apply.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Credibility of respondent’s testimony | Denials of participation and lack of knowledge; denies special police service | Documentary evidence, photos, and expert testimony contradict denials | IJ’s adverse credibility finding upheld; testimony not credible |
| Whether evidence indicates respondent may have participated in extrajudicial killings (triggering burden under 8 C.F.R. §1240.8(d)) | No direct proof respondent participated; lack of personal involvement means bars don’t apply | Service in units/locations/times of killings and command role indicate he may have participated or knew of abuses | Record contains some evidence that a reasonable factfinder could conclude the bars may apply; respondent must prove otherwise by preponderance and failed to do so |
| Application of genocide and extrajudicial-killing inadmissibility provisions (§212(a)(3)(E)(ii)/(iii)) | Challenges sufficiency of evidence linking him to genocide/extrajudicial killings | Expert and documentary evidence link respondent’s units to genocide and killings during his service | Respondent’s service at relevant times/places indicates he may have assisted/participated in genocide and extrajudicial killings; he did not rebut by preponderance |
| Persecutor bar to asylum/withholding | Argues lack of personal culpability and motivation irrelevant | Participation or assistance in persecution (regardless of motive) bars relief | Persecutor bar applies; asylum and withholding denied |
Key Cases Cited
- Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) (under 8 C.F.R. § 1240.8(d), evidence indicating an alien may have participated in extrajudicial killings shifts burden to alien to prove by a preponderance the statutory bar does not apply)
- Haddam v. Holder, [citation="547 F. App'x 306"] (4th Cir. 2013) (referenced for remand/context on Matter of A-H- principles)
- Radojkovic v. Holder, [citation="599 F. App'x 646"] (9th Cir. 2015) (referenced on application/remand of BIA decisions concerning command responsibility and participation standards)