Matter of D-R-, Respondent
Interim Decision #3902
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided September 14, 2017
27 I&N Dec. 105 (BIA 2017)
FOR RESPONDENT: Don P. Chairez, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael McVicker, Associate Legal Advisor
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien‘s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.- In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien‘s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.
MALPHRUS, Board Member:
This case is before us on remand from the United States Court of Appeals for the Ninth Circuit for further clarification of those portions of our decision in Matter of D-R-, 25 I&N Dec. 445 (BIA 2011), in which we found the respondent removable under section 237(a)(1)(A) of the Immigration and Nationality Act,
We incorporate by reference the factual and procedural history set forth in Matter of D-R-, 25 I&N Dec. at 446-49, but will also summarize relevant parts of our decision. In addition, we incorporate by reference sections C, D, E, and F of Part II concerning documentary evidence and expert testimony, interpretation issues, the respondent‘s motion to terminate, and his ineligibility for asylum and other relief and protection from removal. Id. at 457-64. Because the Ninth Circuit did not address those portions of our decision, we reaffirm our determinations in them without further discussion.
The respondent is a native and citizen of Bosnia-Herzegovina who was admitted to the United States as a refugee in June 1999 and adjusted his status to that of a lawful permanent resident in 2002. In 2008, the Department of Homeland Security (“DHS“) issued a notice to appear, charging that the respondent is removable because he made a material misrepresentation on his refugee application—that is, he did not disclose that he was a Special Police officer and “Squad” (later changed to “platoon“) commander in the Republika Srpska during the Bosnian War.2 In 2009, the DHS lodged an additional charge of removability against the respondent, charging that he had participated in the extrajudicial killing of Bosnian Muslims. This charge was based on information indicating that in July 1995, the respondent and his subordinates took part in capturing 200 Bosnian Muslim men while patrolling a road near Konjevic Polje. These men were deliberately killed shortly thereafter.
The Immigration Judge found that the respondent‘s deliberate omission from his refugee application that he was a Special Police officer constituted a willful misrepresentation of a material fact under section 212(a)(6)(C)(i) of the Act. She also concluded that the DHS had shown by clear and convincing evidence that the respondent “assisted, or otherwise participated in” extrajudicial killing under section 212(a)(3)(E)(iii)(II) of the Act. Consequently, the Immigration Judge ordered the respondent removed from the United States. On appeal, we affirmed her decision that the respondent is removable as charged.3
II. ANALYSIS
A. Material Misrepresentation
For an Immigration Judge to find that an alien is inadmissible under section 212(a)(6)(C)(i) of the Act, there must be clear, unequivocal, and convincing evidence that the alien, “by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States.” The respondent conceded that he was an officer in a Special Police unit during the war; that in July 1995, he and his unit were assigned to the Konjevic Polje road where 100 to 200 Bosnian Muslims surrendered to them; and that he lied about his employment on his Form I-590 refugee application. We must decide whether the respondent‘s omission from his refugee application that he was a Special Police officer during the Bosnian War was a “material” misrepresentation under section 212(a)(6)(C)(i) of the Act.
In Matter of D-R-, 25 I&N Dec. at 450-51, we concluded that this omission could have influenced the decision to grant him refugee status. Thus, we agreed with the Immigration Judge that the respondent‘s concealment constituted a willful misrepresentation of a material fact.
The Ninth Circuit held that we did not correctly apply the standard for determining the materiality of a misrepresentation set forth in Forbes v. INS, 48 F.3d 439 (9th Cir. 1995).4 The court explained that this standard includes
On remand, the DHS argues that we are not bound by the Ninth Circuit‘s standard in Forbes because the term “material” in the Act is ambiguous. Pursuant to the tenets of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (”Chevron“), 467 U.S. 837 (1984), and National Cable & Telecommunications Ass‘n v. Brand X Internet Services (”Brand X“), 545 U.S. 967 (2005), the DHS contends that we should explicitly exercise our authority to define the term “material,” because we are the agency charged with administering section 212(a)(6)(C)(i) of the Act.
The United States Supreme Court has held that a circuit court must accord deference under Chevron to an agency‘s interpretation of a statute unless “Congress has directly spoken to the precise question at issue” and congressional intent is clear. Chevron, 467 U.S. at 842. The agency‘s interpretation of a statute applies, regardless of the circuit court‘s contrary precedent, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982; see also Holder v. Martinez Gutierrez, 132 S. Ct. 2011, 2017 (2012) (holding that the Board‘s position on a statute “prevails if it is a reasonable construction of the statute, whether or not it is the only possible interpretation or even the one a court might think best“); Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en banc) (concluding that the courts should accord Chevron deference to the Board because we exercise the “authority to ‘give[] ambiguous statutory terms “concrete meaning“‘” (alteration in original) (citations omitted)); Matter of M-H-, 26 I&N Dec. 46, 49 (BIA 2012).
1. “Material”
The term “material” is not defined in section 212(a)(6)(C)(i) or elsewhere in the Act, and the Ninth Circuit has not held that its meaning is unambiguous. Rather, in Forbes the Ninth Circuit looked to Kungys v. United States, 485
Because the denaturalization statute did not define the term “material,” the Court looked to the lower courts’ general understanding of that term in another context—namely, statutes criminalizing false statements to public officials. Id. at 769-70. The Court found that the “most common formulation of that understanding is that a concealment or misrepresentation is material if it ‘has a natural tendency to influence, or was capable of influencing, the decision of’ the decisionmaking body to which it was addressed.” Id. at 770 (emphasis added) (citation omitted). The majority opinion declined to further clarify the meaning of the phrase “natural tendency.”
The majority of the Federal circuit courts appear to have adopted the “natural tendency” standard from Kungys as a general standard for defining the term “material” in a variety of contexts. Beyond the “natural tendency” standard, however, there is no consensus in the courts as to the interpretation of the term “material” in section 212(a)(6)(C)(i) of the Act, as we discuss more fully below. Thus, because the definition of “material” in this particular context is ambiguous, we may exercise our authority as the agency administering the statute to explain our construction of this term.
2. “Fair Inference”
The Ninth Circuit took the second prong of its materiality test—the “fair inference” test—from Justice Brennan‘s concurrence in Kungys. Justice Brennan agreed with the majority‘s “natural tendency” test, but he added that “a presumption of ineligibility does not arise unless the Government produces evidence sufficient to raise a fair inference that a statutory disqualifying fact actually existed.” Kungys, 485 U.S. at 783 (Brennan, J., concurring) (emphasis added).
Although it was first proposed in a concurrence, the “fair inference” test has been widely held to be controlling in the context of prosecutions
The Court in Maslenjak did not include or refer to Justice Brennan‘s “fair inference” test. In fact, the Court opined, “A yet-stricter causal requirement, demanding proof positive that a disqualifying fact would have been found, sets the bar so high that ‘we cannot conceive that Congress intended’ that result.” Id. at 1930 (quoting Kungys, 485 U.S. at 777).
We decline to adopt or apply the Forbes “fair inference” test to questions of inadmissibility under section 212(a)(6)(C)(i) of the Act. First, although the Ninth Circuit assumed the test to be applicable in Forbes, other circuit courts have differed as to whether the “fair inference” test is applicable to the question of the materiality of a misrepresentation. For example, the Seventh Circuit has opined that the test applies to the fourth step in the Supreme Court‘s analysis of section 340(a) of the Act—that is, to determine whether a “naturalized citizen . . . procured citizenship as a result of the misrepresentation or concealment.” Latchin, 554 F.3d at 713 (emphasis added) (quoting Kungys, 485 U.S. at 767) (internal quotation mark omitted); see also United States v. Nguyen, 829 F.3d 907, 916-17 (8th Cir. 2016) (noting that the “fair inference” test was applied in Kungys to determine whether naturalization was “procured by” the misrepresentation, rather than whether the misrepresentation was “material“).
Moreover, when considering the question of inadmissibility under section 212(a)(6)(C)(i) of the Act, other circuit courts have not applied the “fair
The Eleventh Circuit has explained that “a heightened burden of proof [under the fair inference test] is not appropriate in a prosecution that would not result in loss of citizenship.” United States v. Pirela Pirela, 809 F.3d 1195, 1201 (11th Cir. 2015). In a decision rendered after Forbes, the Ninth Circuit also acknowledged that the “fair inference” test was based on the singular seriousness of the potential loss of citizenship. United States v. Alferahin, 433 F.3d 1148 (9th Cir. 2006). In that decision, the court held that “the Kungys decision established a more rigorous definition of materiality that is unique to the context of denaturalization proceedings.” Id. at 1155 (emphases added). The court noted that Justice Brennan‘s concurrence in Kungys “emphasized that ‘citizenship is a most precious right, and as such should never be forfeited on the basis of mere speculation or suspicion.‘” Id. (quoting Kungys, 485 U.S. at 783-84 (Brennan, J., concurring)).
Meanwhile, the Supreme Court has declined to decide whether its definition of the term “material” in denaturalization proceedings also applies when considering inadmissibility under section 212(a)(6)(C)(i) of the Act. Cf. Fedorenko v. United States, 449 U.S. 490, 509 (1981) (declining to decide whether the standard for materiality outlined in Chaunt v. United States, 364 U.S. 350 (1960), applies to false statements in visa applications). In other contexts, the Court has reaffirmed its conclusion in Kungys that a false statement is material if it has “a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (alteration in original) (citation omitted) (relating to conviction for failure to report income on tax returns); see also United States v. Wells, 519 U.S. 482, 489 (1997).7
We therefore decline to follow the “fair inference” test set forth in Forbes. Pursuant to Chevron and Brand X, we exercise our authority as the agency implementing section 212(a)(6)(C)(i) of the Act to define the term “material” and apply its definition, including in cases arising in the Ninth Circuit, to promote national uniformity in the interpretation of the Act.
We have already considered the definition of the term “material” in determining whether an alien was “excludable” under former section 212(a)(19) of the Act, the precursor to section 212(a)(6)(C)(i). See Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980). In that case, an Immigration Judge found that an alien had misrepresented certain material facts when she applied for a nonimmigrant transit visa in 1967. The Board ultimately reversed the Immigration Judge‘s decision and terminated proceedings, because the record was unclear as to the effect of the misrepresentations on the consular officer‘s decision to issue the visa. In so doing, we concluded that “the materiality requirement . . . is satisfied if either (1) the alien is excludable on the true facts or (2) the misrepresentation tends to shut off a line of inquiry which is relevant to the alien‘s eligibility and which might well have resulted in a proper determination that he be excluded.” Id. at 127. We further ruled that the Government must show that the facts “would have likely been uncovered and considered but for the misrepresentation,” and then the burden shifts to the alien “to establish that no proper determination of inadmissibility could have been made.” Id. at 131.
While the Tenth Circuit has viewed the Kungys and Matter of Bosuego standards as distinct, Solis-Muela v. INS, 13 F.3d 372, 376 (10th Cir. 1993), other circuits have cited the two decisions together when considering materiality in this context. See, e.g., Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999); cf. Monter v. Gonzales, 430 F.3d 546, 556-58 (2d Cir. 2005).8
Thus, we adopt the Kungys “natural tendency” test as our general standard for determining whether an alien‘s misrepresentation is “material” under section 212(a)(6)(C)(i) of the Act. Specifically, we will consider whether the misrepresentation tends to shut off a line of inquiry that is relevant to the alien‘s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.9
Finally, we reaffirm our conclusion in Matter of Bosuego, 17 I&N Dec. at 131, that after the DHS meets its burden of proof, the burden shifts to the alien “to establish that no proper determination of inadmissibility could have been made.” See, e.g., Maslenjak, 137 S. Ct. at 1930 (“Even when the Government can make its two-part showing, however, the defendant may be able to overcome it . . . [and should have] an opportunity to rebut the Government‘s case . . . .“); Habib v. Lynch, 787 F.3d 826, 831-32 (7th Cir. 2015) (stating that the alien could have rebutted the presumption that he acquired lawful permanent resident status as a result of his willful misrepresentation of a material fact by proving that he was eligible for adjustment of status despite the misrepresentation); cf. Monter, 430 F.3d at 557 (“[W]here an immigration court finds that an alien has made a material misrepresentation, the [Immigration Judge] must also determine whether that alien has rebutted the resulting presumption that he or she would have been removable if the true facts had been known . . . .“).
In determining that the respondent‘s omission of his Special Police service from his asylum application was material, the Immigration Judge relied on the testimony of Todd Gardner, a Special Assistant with the Refugee Affairs Division of the United States Citizenship and Immigration Services. He testified that an asylum applicant‘s failure to disclose police and military service during the Bosnian War would have prevented an appropriate line of inquiry regarding whether the person was barred from refugee status as a persecutor. He also stated that including this information would have prompted further questioning. In addition, he opined that the respondent‘s omission was material insofar as the refugee officers in Bosnia were trained to address issues of human rights in Bosnia with applicants.
The Immigration Judge also relied on the testimony of Richard Butler, a Criminal Research Specialist at the Human Rights Violator and War Crimes Unit of Immigration and Customs Enforcement.10 Mr. Butler asserted that if an individual admitted to being a member of the police or military during the Bosnian War, his application would have been set aside for further review.
The respondent argues that because service with the army of the Republic of Srpska was not “in and of itself a ground of inadmissibility,” any misrepresentation regarding such service is not material. However, the “natural tendency” standard is not so stringent. In Kungys, for example, the Court concluded that while the alien‘s true date and place of birth were not directly relevant to his citizenship application, they would have a “natural tendency” to influence the determination, even if they only “disclosed other facts relevant to his qualifications.” Kungys, 485 U.S. at 774.
The evidence is much stronger here than in Matter of Bosuego, where the Government conceded that the alien‘s admission as a nonimmigrant would not have been denied based on the misrepresented facts alone. In that case, we determined that the record contained “no reference whatever to other pertinent factors” that would have influenced the consul‘s determination, and no attempt was made to “develop the relevant facts in existence when the respondent presented herself before the consul.” Matter of Bosuego, 17 I&N Dec. at 128.
Accordingly, we conclude that the Immigration Judge made proper factual findings to determine that the respondent‘s service in the Special Police would have had a “natural tendency” to influence the decision of the local asylum officers to approve his application. The omission shut off a line of inquiry relevant to the respondent‘s eligibility for asylum. As the Immigration Judge found, if the respondent had revealed his service in the
Further, the respondent was given ample opportunity to establish that he would have been admissible had the facts been disclosed. He was able to cross-examine both Mr. Butler and Mr. Gardner and to present his own testimony and evidence at the hearing. Both he and his daughter testified. The respondent did not produce evidence to rebut a showing by the DHS that his Special Police service was material to his asylum application. Thus, we conclude that he willfully made a material misrepresentation in procuring admission into the United States. The respondent is therefore inadmissible under section 212(a)(6)(C)(i) of the Act and removable under section 237(a)(1)(A).11
B. Extrajudicial Killing
Under section 212(a)(3)(E)(iii)(II) of the Act, an alien is inadmissible” if he or she has “committed, ordered, incited, assisted, or otherwise participated in the commission of . . . under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991.”12
The respondent admitted that he was the leader of the third platoon in the 2nd Company Special Police Brigade of the Jahorina Training Center during July 1995. The 2nd Company was led by Nedjo Ikonic. About 25 Special Police officers served under the respondent‘s command. His duties included
On July 16 or 17, 1995, the 2nd Company, including the respondent‘s platoon, and two army units were ordered to perform a “sweep” of the area around the road, during which another 200 men were captured or surrendered. The respondent admitted that he was present when the men surrendered. He also admitted that the men were left with him and Nedjo Ikonic for approximately 30 minutes before being loaded onto buses. Dusko Jevic, the commander of the Jahorina Training Center, testified at the respondent‘s removal hearing. He stated that he was responsible for the transportation of the men and that those under his command, including the respondent‘s platoon, actually loaded the men onto the buses. The men were taken away and killed.
In remanding this case, the Ninth Circuit found that we did not apply the court‘s two-part test set forth in Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), for determining whether an alien had “assisted” in persecution under the “similarly worded” provisions known as the “persecutor bar” to asylum.14 Radojkovic, 599 F. App‘x at 648. The court remanded “for further clarification regarding the relevance and applicability of the two-prong test established by Miranda Alvarado.” Id.
1. Miranda Alvarado
The alien in Miranda Alvarado served as a language interpreter in Peru for interrogations of suspected Shining Path members. Miranda Alvarado, 449 F.3d at 918. During these interrogations, the suspects were often
The Ninth Circuit determined that the statute did not define, in unambiguous terms, what is meant by “‘assist[ing], or otherwise participat[ing]’ in the persecution of others.” Id. at 921 (alterations in original). However, it declined to apply Chevron deference to our decision because we had affirmed the Immigration Judge‘s decision, rather than issuing an opinion that had “the force of law.” Id. at 921-24. The court acknowledged that the Attorney General had subsequently issued a precedential opinion concerning the persecutor bar. Id. at 923 n.4 (citing Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), remanded on other grounds, Haddam v. Holder, 547 F. App‘x 306 (4th Cir. 2013)). It nevertheless found that the “factual posture” of that case made it distinguishable and that “the more general principles” enunciated by the Attorney General were “fully consistent with” prior Ninth Circuit case law. Id.
The court then ruled that determining whether an alien assisted in persecution, “requires a particularized evaluation of both personal involvement and purposeful assistance in order to ascertain culpability.” Id. at 927 (emphasis added). It looked to a footnote in Fedorenko, which “has since become the principal guide to interpreting persecutor exceptions generally.” Id. at 925. In that footnote, the Supreme Court stated:
[A]n individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians.
Id. at 925-26 (quoting Fedorenko, 449 U.S. at 512 n.34). The Ninth Circuit concluded that this footnote “indicated a continuum of conduct against which an individual‘s actions must be evaluated so as to determine personal culpability.” Id. at 926 (emphasis added).
According to the court, in evaluating an alien‘s conduct, it is necessary to examine “the degree of relation [the alien‘s] acts had to the persecution itself,” including whether the alien acted in self-defense, how long a period of time the alien was involved in the acts, and what threats were used to compel assistance. Id. at 926-28. The court explained that its standard “does not require actual ‘trigger-pulling‘” by the alien. Id. at 927 (quoting Matter of A-H-, 23 I&N Dec. at 784). With regard to the other end of the continuum,
The Ninth Circuit concluded that Miranda Alvarado had assisted in persecution because his “services were integral” to the persecution that occurred. Id. at 929. In reaching that determination, the court cited the Immigration Judge‘s finding that without the alien‘s services as an interpreter, “the interrogations could not proceed.” Id. at 928.
2. “Assisted, or Otherwise Participated in”
As the Ninth Circuit has recognized, the Act does not “spell out what is meant by” the phrase “assisted, or otherwise participated in.” Id. at 921. Our survey of the Federal circuit court decisions reveals that interpretations of the phrase vary. However, there is some consensus that the Government must show evidence of (1) a nexus between an alien‘s acts and the persecution or extrajudicial killing and (2) the alien‘s scienter, or prior or contemporaneous knowledge of the effect of his actions. See Quitanilla v. Holder, 758 F.3d 570, 577 (4th Cir. 2014); Abdallahi v. Holder, 690 F.3d 467, 476 (6th Cir. 2012); cf. Suzhen Meng v. Holder, 770 F.3d 1071, 1074 (2d Cir. 2014).15 Other circuits have not created a clear standard.16
We conclude that the phrase “assisted, or otherwise participated in” under section 212(a)(3)(E)(iii) of the Act is ambiguous. For the following reasons, we decline to apply the standard outlined in Miranda Alvarado and will,
In constructing our standard, we begin by adopting the generally accepted premise, stated in Fedorenko, that there exists a “continuum of conduct against which an individual‘s actions must be evaluated” in determining whether he “assisted, or otherwise participated in” extrajudicial killing. Miranda Alvarado, 449 F.3d at 926.18
We then look to the Attorney General‘s decision in Matter of A-H-, 23 I&N Dec. at 783-85, which remains relevant precedent and sets forth some general principles for defining the phrase “assisted, or otherwise participated in” under the Act.19 The Attorney General quoted the dictionary in stating that “[t]o ‘assist’ means ‘to give support or aid: help‘” and “to ‘participate’ means ‘to take part in something (as an enterprise or activity) usu[ally] in common with others.” Id. at 784. Surveying relevant case law, he further concluded that “these terms are to be given broad application.” Id. Finally, he found it appropriate to look at the “totality of the relevant conduct in determining whether the bar to eligibility applies.” Id. at 785.20
In regard to nexus, we agree with the Ninth Circuit that if the alien did not have “direct personal involvement,” an important factor is “the degree of relation [the alien‘s] acts had to the persecution itself.” Miranda Alvarado, 449 F.3d at 927-28. It is less helpful to contrast “active” with “passive” participation, because there appears to be a general understanding that some conduct that can be viewed as “passive,” like guarding prisoners, is sufficient assistance or participation. Rather, we look at whether the alien‘s role was material or integral to the killing—or, as the DHS argues, whether the alien‘s role “contributed” to the ultimate harm. We also agree with the Ninth Circuit‘s ruling that “‘[m]ere acquiescence or membership in an organization’ is insufficient” to establish culpability. Id. at 927 (citation omitted).
Scienter also plays a role in many of the Federal circuit decisions on the issue. The Ninth Circuit did not discuss scienter in Miranda Alvarado, but the alien in that case was present in the room during the persecution.21 We agree with the Fourth and Second Circuits that “the evidence need not show that the alleged persecutor had specific actual knowledge that his actions assisted in a particular act of [extrajudicial killing].” Quitanilla, 758 F.3d at 577 (quoting Xu Sheng Gao v. U.S. Att‘y Gen., 500 F.3d 93, 103 (2d Cir. 2007)). Rather, “the alien must have had ‘sufficient knowledge that [his or] her actions may assist in [extrajudicial killing] to make those actions culpable.‘” Suzhen Meng, 770 F.3d at 1074 (citation omitted). Thus, direct proof of actual knowledge is not required. Instead, the alien must have sufficient knowledge that the consequences of his actions may assist in acts
None of the above disturbs our discussion of “command responsibility” in Matter of D-R- or our subsequent decision in Matter of Vides-Casanova, 26 I&N Dec. 494 (BIA 2015). An individual in a position of authority over the perpetrators of extrajudicial killing or persecution, such as a military commander, may be held accountable for failure to prevent his subordinates from committing such acts. A person with command responsibility may also be responsible for any failure to investigate or punish his subordinates when the evidence demonstrates that he knew they were involved. However, in analyzing the respondent‘s assistance and participation in the extrajudicial killings in this case, we need not rely on his command responsibility to support our decision.
3. Application to the Respondent
The respondent admitted that he and his unit were stationed at the road near Konjevic Polje during the relevant days in July 1995. The Immigration Judge did not clearly err in finding that the respondent‘s Special Police unit was under the control of the military of the Republic of Srpska during that mission with Ikonic‘s company.
The mission of the respondent‘s platoon was to “secure” the road, and they conducted at least one “sweep” on July 16 or 17, which resulted in the capture or surrender of about 200 Bosnian Muslim men. The respondent admitted that the men were left with him and Nedjo Ikonic for approximately 30 minutes before being loaded on to buses. The Immigration Judge found that the record supported a conclusion that the respondent assisted in loading those individuals onto the buses. The respondent‘s attorney stipulated that the 200 men captured on that day were killed.
There is a sufficient nexus between the actions of the respondent and the extrajudicial killings. Although he was not present when the Bosnian Muslims who were captured by his unit were killed, he had custody of the men and assisted in loading them onto the buses that would take them to their deaths. Our conclusion is consistent with court decisions examining similar circumstances. For example, the Fourth Circuit decided that the persecutor bar applied to a sergeant who “oversaw the investigation and capture of twenty to fifty civilians and guerillas [and] then turned those captives over to his military superiors, where the prisoners were, according to the country reports, ‘routinely interrogated, tortured and sometimes killed.‘”
The respondent‘s role in these killings appears more direct than that of the alien in Miranda Alvarado. As the Ninth Circuit noted,
Miranda was not in a position of authority with regard to planning or inciting the interrogations; he did not directly apply the electric shocks or beatings; he did not supply the physical compulsion that allowed the torture to occur, as do armed guards; and he did not, forcibly or otherwise, arrest the victims or bring them to the place of torture.
Miranda Alvarado, 449 F.3d at 929 (emphasis added).
The respondent also had the requisite scienter—or prior or contemporaneous knowledge—that the 200 Muslim men were being transported to their deaths. While the respondent claimed that he was never in Kravica and did not know anything about the prior transportation of captured Bosnians and their killings, the Immigration Judge concluded that his claim was implausible based on the other evidence in the record. We find no clear error in this determination.23
We adopt and incorporate our determinations in Part II, section B, of Matter of D-R-, 25 I&N Dec. at 451-56, concerning the Immigration Judge‘s factual findings on this issue. For example, Mr. Butler testified that when the sweep on July 16 or 17 took place, it was already known that the Serbian military and Special Police were carrying out mass executions of Bosnian Muslims and that other military police had admitted having such knowledge. Moreover, the written evidence demonstrates that those posted on the Konjevic Polje road would have been aware not only of the transport of prisoners to mass executions because of troop movements and buses along the road but also of the killings at the nearby Kravica warehouse. Additionally, there is evidence that noncombatants were killed on the spot when they emerged from the woods bordering the road.
III. CONCLUSION
The respondent is inadmissible under section 212(a)(6)(C)(i) of the Act because his failure to disclose that he was a Special Police officer during the Bosnian War on his application for refugee status was a misrepresentation of a material fact that tended to shut off a line of inquiry relevant to his eligibility for asylum. He is also removable under section 237(a)(4)(D) of the Act because he assisted or otherwise participated in extrajudicial killings under section 212(a)(3)(E)(iii)(II). The Immigration Judge therefore properly ordered his removal from the United States. Accordingly, the respondent‘s appeal will be dismissed.
ORDER: The appeal is dismissed.
Notes
Kungys, 485 U.S. at 774 (emphasis added) (footnote omitted). In his concurrence, Justice Brennan specifically referenced and concurred with this test before adding his “fair inference” standard. See id. at 783.[T]he misrepresentation of [the date and place of Kungys’ birth in his naturalization petition] would have a natural tendency to influence the citizenship determination, and thus be a misrepresentation of material facts, if the true date and place of birth would predictably have disclosed other facts relevant to his qualifications.
a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.