Recently the Board of Immigration Appeals (“BIA”) issued a decision in Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) where it analyzed two immigration sections of the INA – inadmissibility pursuant to INA 212(a)(3)(E)(iii)(II (an alien who assisted or otherwise participated in extrajudicial killing) and inadmissibility pursuant to INA 212(a)(6)(C)(i) (an alien who was inadmissible at the time of entry because of fraud or willful misrepresentation of a material fact).

Procedural History

Radojkovic, a citizen of Bosnia-Herzegovina, arrived to the US as refugee in 1999 and adjusted status to become a legal permanent resident (“LPR”) in 2002. Six years later, the Department of Homeland Security (“DHS”) issued a notice to appear charging him as removable because he made a material misrepresentation on his original refugee application. The DHS contended that Radojkovic did not disclose that he was a “special police officer” and “squad” commander in the national guard unit during the Bosnian war. The original charging document was later amended in 2009 to include that Radojkovic had participated in extrajudicial killings of 200 Bosnian men in 1995 during the war.

The Immigration Judge (“IJ”) found this omission on his refugee application constituted a willful misrepresentation of a material fact under INA 212(a)(6)(C)(i) and the IJ concluded that DHS had shown by clear and convincing evidence that Radojkovic had “assisted, or otherwise participated in” extrajudicial killing under INA 212(a)(3)(E)(iii)(II). The BIA affirmed the IJ’s decision in Matter of D-R-, 25 I&N 445 (BIA 2011). However, on petition for review, the Ninth Circuit remanded the case so the BIA so it could articulate why it did not follow Ninth Circuit precedent. Specifically, the court remanded the case to the BIA so it could analyze the second prong of the materiality test set out in Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) and to analyze the two part test with regards to the persecutor bar as articulated in Miranda Alvarado v. Gonzales, 449 F.3d 915. 926 (9th Cir. 2006). Radojkovic v. Holder, 599 f. App’x 646 (9^th Cir. 2015). Upon remand, the BIA declined to follow both Ninth Circuit decisions and denied Radojkovic’s appeal, again.

Material Misrepresentation

The term “material” is not defined in the INA and it’s meaning in the immigration context has varied in the circuit courts and the BIA. In Forbes, the consular officer was not notified of pending criminal charges of the immigration applicant and in absence of this information, granted the immigration benefit. The BIA set out a two part test to determine whether the concealments or misrepresentations are material: if they have a “natural tendency” to influence the decisions of the immigration officer and if the government has produced sufficient evidence to raise an inference that a disqualifying act actually exists. Forbes v. INA, 48 F.3d 439 (9th Cir. 1995). The Ninth Circuit concluded that the immigration officer would have had a natural tendency to inquire further if he had known about the pending criminal charges but he could not continue the questioning because of the omission. However, since the consular officer would not have actually denied the immigration benefit unless there was an actual conviction, he would have placed the case on hold pending an outcome. Thus, the court in Forbes held there was no “fair inference” of a disqualifying fact – i.e. a criminal conviction.

In the Matter of D-R-, the BIA only chose to follow the first part of the test – whether the misrepresentation had a “natural tendency” to influence an immigration officers questioning. The BIA, exercising its authority under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (“Chevron”), declined to follow the second prong of the test – the “fair inference” analysis. The BIA adopted the “natural tendency” test as the general standard for determining whether an alien’s misrepresentation is “material” and stated it would consider whether the misrepresentation tends to shut off a line of inquiry that is relevant to the alien’s admissibility and could have disclosed other facts relevant to visa eligibly, other documentation or admission to the U.S. Further, the BIA reaffirmed its decision in Matter of Bosuego, 17 I & N Dec. 125, 131 (BIA 1979; 1980) which held that after DHS meets if burden of proof, the burden shifts to the visa applicant to show that the inadmissibility finding is not supported.

Thus, the BIA concluded that Radojkovic’s omission that he was a “special forces” police officer during the Bosnian war, was a misrepresentation that was “material” because it shut off any further line of questioning by the refugee officer. The BIA did not require that there be any inference that Radojkovic was in fact a “special forces” officer and how that would have affected his refugee application.

Participation in Extrajudicial Killings

Next the BIA interpreted the term “assisted or otherwise participated” in the context of INA section 212(a)(3)(E)(iii)(II) of the INA in order to determine if Radojkovic participated in extrajudicial killings. The Ninth Circuit remanded Matter of D-R- so the BIA could apply the analysis of Miranda-Alvarado, 449 F.3d 915. 926 (9th Cir. 2006), a case analyzing the persecutory bar to asylum and withholding of removal. Mirando-Alvarado, a Peruvian military interpreter, interpreted during interrogations where prisoners were tortured. These facts prompted the court to look to "a continuum of conduct against which an individual's actions must be evaluated so as to determine personal culpability." The court also laid out a two-part test: whether there was personal involvement and whether there was purposeful assistance, not just actions that are tangential or passive. The court also looked to whether the assistance was integral in the overall persecutory act, and held that Miranda-Alvarado’s interpretation constituted assistance and thus he was barred from asylum.

In Matter of D-R-, the BIA concluded the term “assisted or otherwise participated in,” is not defined in the INA, is vague, and declined to follow Miranda-Alvarado and apply its two-part test. Again, the BIA exercised its own authority to provide guidance on the definition pursuant to Chevron. The BIA laid out its own two part test which considers (1) the nexus between the alien’s role, acts or inaction, and the extrajudicial killing; and (2) his scienter, or his prior or contemporaneous knowledge of the killing. Thus, the BIA concluded that even if the person’s actions were passive or even tangential in nature s/he could still be considered to have participated in persecution or extrajudicial killing if there was a nexus between the applicant’s role and the extrajudicial killing. The BIA also added a knowledge requirement that was not present in the Miranda-Alvarado. The BIA held that Radojkovic’s involvement as a “special forces” police officer amounted to participation in an extrajudicial killing because he was a commander of a unit that was present when over 200 men and boys were taken away to be killed. The BIA concluded that Radojkovic’s role had enough of a nexus to the killing of these men. The BIA rejected the Miranda-Alvardo’s holding which would have required to determine if Radojkovic’s role was active or passive and/or tangential or integral overall persecutory act. The BIA also relied on the doctrine of “command responsibility” which imputes persecutory conduct on commanders who should control subordinates in their ranks.

Conclusion

In evaluating both inadmissibility grounds the BIA strayed from Ninth Circuit law, citing to other circuits. This case will most likely be appealed to the Ninth Circuit. It will be interesting to see if the Ninth Circuit will determine these terms in the INA are in fact vague and consequently defer to the BIA’s interpretation of the statue when the court’s own precedent dictates otherwise.