Vladimir Maric v. Jefferson B. Sessions, III
854 F.3d 520
| 8th Cir. | 2017Background
- Vladimir Maric, a Bosnian national admitted as a refugee in 1999 and LPR in 2001, faced DHS removal proceedings in 2011 for obtaining immigration benefits by fraud or willful misrepresentation (8 U.S.C. § 1182(a)(6)(C)(i)) for failing to disclose military service in the VRS.
- DHS proved by clear and convincing evidence that Maric was removable for the material misrepresentation; Maric sought a discretionary waiver under 8 U.S.C. § 1227(a)(1)(H).
- DHS introduced evidence suggesting Maric served in the Sixth Battalion, Zvornik Brigade in July 1995, during the Srebrenica massacres; historian testimony and VRS records tied his name and birth date to combat assignments that month.
- Maric testified he was forcibly conscripted, served only briefly in July 1995 (specifically July 22), and denied participation in killings; he submitted limited documentary proof of service.
- The IJ found DHS’s evidence indicated potential participation in extrajudicial killings, deemed Maric ineligible for the waiver under the statutory bar (8 U.S.C. § 1182(a)(3)(E)(iii)), and placed on Maric the burden to prove by a preponderance that the bar did not apply; the BIA affirmed.
Issues
| Issue | Maric's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether DHS needed to prove by clear and convincing evidence that Maric was inadmissible under § 1182(a)(3)(E)(iii) (participation in extrajudicial killings) before denying waiver eligibility | BIA/IJ should require DHS to prove inadmissibility under § 1182(a)(3)(E)(iii) by clear and convincing evidence (relying on Matter of D-R-) | DHS only needed to prove removability (fraud) by clear and convincing evidence; once DHS’s evidence “indicates” possible statutory disqualification, the alien bears the preponderance burden to show eligibility for waiver under 8 C.F.R. § 1240.8(d) | Court held DHS was not required to prove inadmissibility under § 1182(a)(3)(E)(iii) by clear and convincing evidence for waiver determination; placing preponderance burden on Maric was proper |
| Whether the IJ’s application of 8 C.F.R. § 1240.8(d) (shifting burden to alien when evidence indicates mandatory denial grounds) was lawful | Maric argued shifting the burden based on indicative evidence improperly lets the government avoid its burden to prove removability/disqualifying conduct | Government and BIA: regulation governs eligibility determinations for discretionary relief; alien bears burden to establish eligibility once government proves removability and evidence indicates disqualifying grounds | Held that regulation is consistent with statutes: government proved removability for fraud; because evidence indicated possible disqualifying conduct, the preponderance burden on Maric to prove eligibility was appropriate |
Key Cases Cited
- Godfrey v. Lynch, 811 F.3d 1013 (8th Cir. 2016) (standard of review; deference to BIA interpretations)
- Andrade-Zamora v. Lynch, 814 F.3d 945 (8th Cir. 2016) (alien bears burden to prove eligibility for cancellation/waiver once government proves removability)