Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
445
Matter of D-R-, Respondent
Decided April 6, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The respondent’s deliberate omission from his refugee application that he was a special
police officer during the Bosnian War, during which time he served in an entity that was
part of the Armed Forces of the Republic of Srpska, could have affected or influenced the
Government’s decision whether to grant him refugee status and was therefore a willful
misrepresentation of a material fact.
(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and
Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record
supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian
Muslims that his unit was involved in capturing, including evidence of his command
responsibility, his presence, his platoon’s active participation, and the finding that
he must have been aware that many other Bosnian Muslims who were similarly situated
had been executed nearby several days earlier.
(3) An Immigration Judge may make reasonable inferences from direct and circumstantial
evidence in the record as a whole and is not required to accept a respondent’s account
where other plausible views of the evidence are supported by the record.
(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge,
skill, experience, training, or education and who has specialized knowledge that will
assist the Immigration Judge to understand the evidence or to determine a fact in issue.
FOR RESPONDENT: Richard A. Kulics, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: Charles W. Baccus, Assistant
Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:
The respondent, a native and citizen of Bosnia and Herzegovina and lawful
permanent resident of the United States, has appealed from a written decision
of the Immigration Judge, dated November 24, 2009, finding the respondent
removable based on conduct arising out of his service as a special police
officer during the Bosnian War and ordering him removed from the
United States to Bosnia and Herzegovina. The Immigration Judge found thatCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
446
the respondent’s omission from his refugee application that he had served
as a special police officer constituted a willful misrepresentation of a material
fact, which rendered him removable under section 237(a)(1)(A) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien
who was inadmissible at the time of entry under section 212(a)(6)(C)(i) of the
Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006). The Immigration Judge also
concluded that the Department of Homeland Security (“DHS”) had proven
by clear and convincing evidence that the respondent “assisted, or otherwise
participated” in an extrajudicial killing and is therefore removable under
section 237(a)(4)(D) of the Act. Consequently, the Immigration Judge ordered
the respondent removed from the United States.
The respondent argues that his omission from the refugee application was
not a material misrepresentation and that the Immigration Judge engaged
in impermissible speculation to conclude that he assisted in an extrajudicial
killing. He also argues that he was denied a fair hearing because counsel in the
proceedings below did not object to the DHS’s documentary evidence and
testimony, and he makes other arguments that he claims warrant a remand
or termination of proceedings. The DHS has filed a brief in opposition to the
appeal. The appeal will be sustained in part and dismissed in part, and the
record will be remanded for further proceedings.
We review the findings of fact made by the Immigration Judge to determine
whether they are “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i) (2010);
see also Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review de novo all
questions of law, discretion, and judgment, including the question whether the
parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii);
see also Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).
I. FACTUAL AND PROCEDURAL HISTORY
The Bosnian War was a civil conflict arising from the dissolution
of the former Yugoslavia. It was fought from 1991 to 1995 between
the ethnic Serb-dominated Republic of Srpska and the Federation
of Bosnia-Herzegovina, which was dominated by Bosnian Muslims. Prior
to the war, the respondent served as a police officer for 21 years in the
Republic of Srpska, where he specialized in training dogs to search for drugs
and criminals. During the civil war, consistent with the Republic of Srpska
Constitution, the Republic of Srpska Ministry of Internal Affairs police force,
known as the “MUP,” became part of the Armed Forces of the Republic
of Srpska.
During this time, the respondent was employed as a special police officer,
and in the summer of 1995, he was assigned to the Special Police Brigade
at the Ministry of Internal Affairs’ Jahorina Training Center, which was
overseen by Dusko Jevic. While there, the respondent served as the leaderCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
447
of the third platoon in the 2nd Company of the Training Center, where about
25 special police officers served under his command. His duties included
being a dog training instructor and training police officers to secure or guard
roads and regulate traffic. The respondent’s platoon and two others were
under the command of Nedjo Ikonic.
One of the final major events of the war concerned what became known
as the Srebrenica massacre, where, in July 1995, the Serbian forces took
control of a United Nations safe area in eastern Bosnia and, over the course
of 1 week, executed between 5,000 and 7,000 Bosnian Muslim men and boys.
To prove its case, the DHS presented expert testimony and documents from the
United Nations International Criminal Tribunal for the Former Yugoslavia
at The Hague (“ICTY”) and the Bosnian War Crimes Tribunal.
The documentary evidence, which the Immigration Judge found
to be relevant and probative, included State Department reports, findings from
ICTY trial judgments, and copies of real-time dispatch reports from field
officers during the war that were seized by the ICTY after the war. It also
included a 5-minute video compiled by the prosecutor for the ICTY as part
of the proceedings in the prosecution of Vidoje Blagojevic and Dragan Jokic
and photographic images from a video taken by an independent Belgrade
filmmaker, both of which primarily showed captured Bosnian Muslims
along the Bratunac-Konjevic Polje road on July 13, 1995. See Prosecutor
v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Trial
Judgement (Int’l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005),
http://www.icty.org/x/cases/blagojevic_jokic/tjug/en/bla-050117e.pdf.
The record also included MUP records showing the respondent’s service
with the Special Police Brigade during the war. Richard Butler, a criminal
research specialist with the DHS who formerly worked as a military analyst for
the ICTY, testified on military operations that occurred in Eastern Bosnia from
1992 to 1995, including those specifically related to the Srebrenica massacre.
The Immigration Judge found his expert testimony to be credible and
persuasive.
The testimony and evidence showed that as the Serbian Army overtook
Srebrenica and Bosnian Muslims fled the area, thousands were executed.
See, e.g., Prosecutor v. Radislav Kristic, Case No. IT-98-33-T, Trial
Judgement (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001),
http://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf [hereinafter ICTY
Kristic Trial Judgement] (“As thousands of them attempted to flee the area,
they were taken prisoner, detained in brutal conditions and then executed.”).
Butler testified that when the Serbian Army overtook Srebrenica, the
Commander of the Jahorina Training Center received an urgent message
to secure the Bratunac-Konjevic Polje road between Konjevic Polje and the
village of Kravika, a key escape route through the rugged mountainous terrain
for fleeing Bosnian Muslims. Butler explained that the respondent’s platoon,Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
448
along with others from the Training Center, arrived on the road on July 12 and
stayed until at least July 19. During that week, they did not leave the area and
even slept outdoors.
While there, the respondent’s platoon and others secured or guarded
segments of the road and conducted joint “sweep” operations with Army
troops and other special police in the surrounding mountainous area to secure
the road and nearby area from escaping Bosnian Muslims. Butler’s testimony
referenced a real-time field report in evidence, which stated that “two MUP
companies [including] part of the forces for the Dog Breeding and Training
Center [led by the respondent] have sealed off the area and are fighting the
remaining Muslim forces from Srebrenica.” Butler also testified that between
July 12 and July 18, 1995, many Bosnian Muslims surrendered or were
captured along various segments of this road and that field communications
showed that the MUP were almost entirely responsible for securing the road.
On the morning of July 13, 1995, a total of about 1,000 Bosnian Muslim
men and boys (as young as age 15) surrendered on different points of the
Bratunac-Konjevic Polje road, including in the area of Sandici-Novici, which
is the area of the road where the respondent testified that he and his platoon
were stationed. Evidence showed Bosnian Muslims being induced to come out
of the rough terrain by promises of food and water and humane treatment.
Those who surrendered were taken to a warehouse in the village of Kravica,
traveling in a convoy of dozens of trucks and buses on the Bratunac-Konjevic
Polje road that the respondent and his men helped patrol. At the warehouse,
which was less than 2 miles from the respondent’s position on the road, MUPs
shot and killed approximately 1,000 men and boys within 2 hours. Butler
testified that they were then buried in mass graves.
On July 16 or 17, the 2nd Company Special Police Brigade under Ikonic’s
command, which included the respondent’s platoon as well as two Army units
from the Bratunac Brigade, were involved in a joint sweep operation that
resulted in the capture of about 200 Bosnian Muslim men and boys and four
young children along the Bratunac-Konjevic Polje road.
Jevic, the commander of the Training Center where the 2nd Company
Special Police Brigade was based, testified on behalf of the respondent
by televideo. According to his own testimony, Jevic was responsible for
having the men loaded onto the buses. Those under Jevic’s command,
including the respondent’s platoon, loaded the men onto buses before they
were driven away. Jevic said that it was his understanding that the men were
to be taken to Zvornik and that he could not have known what would happen
to them. Jevic also stated that he never ordered these or any other captured
Bosnian Muslims to be killed. Furthermore, he said he had no knowledge that
anyone under his command, including the respondent, ordered these or any
other captured men to be killed. Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
1 The four children captured along with the others were taken elsewhere and were not
harmed.
2 In response to the question regarding his employment on the refugee application
Biographic Information sheet (Form G-325C), which he signed in September 1998, the
respondent indicated that from May 1992 to the present, he was “unemployed (part time
jobs).” Moreover, on his refugee application, the Form I-590 (Registration for Classification
as Refugee), which he signed in October 1999, the respondent indicated that his military
service was only as a private in a Yugoslavian guard unit from 1970 to 1971. Later, when
completing his application for permanent residence, the respondent answered “none” to the
question about military service on the Form I-485 (Application to Register Permanent
Resident or Adjust Status), although the Immigration Judge did not address any issue
of misrepresentations on that application.
449
It is undisputed that none of the 200 who were captured were ever heard
from again.1
According to Butler’s testimony, they were apparently killed
unlawfully, probably in a manner similar to the men at the Kravica warehouse.
Butler also testified that it was well known by the time these 200 were
captured that mass executions of Bosnian Muslims were taking place.
Four years later, in June 1999, the respondent was admitted to the
United States as a refugee, and he subsequently adjusted his status to that
of a lawful permanent resident in January 2002. The respondent omitted from
his application for refugee status that he served as a special police officer
in the Republic of Srpska during the Bosnian War.2
He testified that
he omitted this information because an International Organization for
Migration (“IOM”) agent who assisted him in completing his application told
him that he would be disqualified for refugee status if he revealed his former
employment as a police officer. The respondent argues that the evidence does
not establish that this omission constitutes a willful misrepresentation
of a material fact under section 237(a)(1)(A) of the Act.
In addition, the respondent asserts that the Immigration Judge engaged
in improper speculation to conclude that he “assisted, or otherwise
participated” in an extrajudicial killing and is therefore removable under
section 237(a)(4)(D) of the Act. The respondent does not dispute that he was
present at the time the 200 men, all of whom he said were adult soldiers,
surrendered to the police and military units that were there at the time, and
he said that the Army took them away on the buses. He said that he did not
know where the men were being taken or what would happen to them. He also
denied ever hearing about the Kravica warehouse killings or any other mass
executions of Bosnian Muslims while he served in the special police during the
war. Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
450
II. ANALYSIS
A. Material Misrepresentation
We agree with the Immigration Judge that the respondent’s omission from
his application for refugee status that he served as a special police officer
in the Republic of Srpska constitutes a willful misrepresentation of a material
fact, which renders him removable under section 237(a)(1)(A) of the Act
as an alien who was inadmissible at the time of entry. Section 212(a)(6)(C)(i)
of the Act renders inadmissible any alien who, “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 or other benefit provided under this Act.” The test for whether
“concealments or misrepresentations were material is whether they had
a natural tendency to influence the decisions of the Immigration and
Naturalization Service.” Kungys v. United States, 485 U.S. 759, 772 (1988);
see also Mwongera v. INS, 187 F.3d 323, 330 (3d Cir. 1999) (citing Matter
of Kai Hing Hui, 15 I&N Dec. 288, 289 (BIA 1975)); Matter of Bosuego,
17 I&N Dec. 125, 130 (BIA 1979, 1980) (stating that a misrepresentation
is material if it “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”). It is not necessary for the Government to show that the
statement actually influenced the agency, only that the misrepresentation was
capable of affecting or influencing the governmental decision. United States
v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001).
The respondent admits that he failed to disclose his former employment
as a police officer during the Bosnian War on his refugee application but
argues that it was not a material misrepresentation. We do not agree.
Todd Gardner, a Special Assistant with the Refugee Affairs Division of the
United States Citizenship and Immigration Services, who is also an attorney
and an expert in refugee processing, testified that failure to disclose police and
military service during the Bosnian War would have prevented an appropriate
line of inquiry regarding whether the applicant was barred from refugee status
as a persecutor. He said that including this information would have prompted
further questioning because of the human rights abuses that occurred
during the war, although it would not have caused an automatic rejection
of an application.
Contrary to the respondent’s argument, the DHS does not need to establish
that but for the misrepresentation, the respondent would have been denied
refugee status. See United States v. Matsumaru, 244 F.3d at 1101; see also,
e.g., Ali v. U.S. Att’y Gen., 443 F.3d 804, 812-13 (11th Cir. 2006). The
respondent’s deliberate omission from his refugee application that he was
a special police officer in the Republic of Srpska during the Bosnian WarCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
3 To the extent the respondent implies that his failure to disclose his service as a police
officer should be excused based on the advice he claimed to have received from the IOM
officer who assisted him in completing his application, we do not agree. “‘The element
of willfulness is satisfied by a finding that the misrepresentation was deliberate and
voluntary.’ The INS does not need to show intent to deceive; rather, knowledge of the
falsity of the representation will suffice.” Mwongera v. INS, 187 F.3d at 330 (quoting Witter
v. INS, 113 F.3d 549, 554 (5th Cir 1997)); see also Espinoza-Espinoza v. INS, 554 F.2d 921,
925 (9th Cir. 1977). The respondent does not dispute that his failure to disclose the
information was intentional. We therefore conclude that the willfulness element has been
met.
4 Section 237(a)(4)(D) of the Act was also amended by section 5501(b) of the IRTPA,
118 Stat. at 3740.
5 According to 28 U.S.C. § 1350(3)(a) (2006), the term “extrajudicial killing” means
“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.”
451
could have influenced the Government’s decision whether to grant him refugee
status. Accordingly, the respondent’s concealment constitutes a willful
misrepresentation of a material fact, which renders him removable under
section 237(a)(1)(A) of the Act.3
B. Extrajudicial Killing
We also agree with the Immigration Judge’s conclusion that the DHS has
proven by clear and convincing evidence that the respondent “committed,
ordered, incited, assisted, or otherwise participated” in an extrajudicial killing
and therefore is removable under section 237(a)(4)(D) of the Act. This section
cross-references section 212(a)(3)(E), which was amended by the Intelligence
Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat.
3638 (“IRTPA”), to make aliens who have committed torture or extrajudicial
killings inadmissible to, and removable from, the United States.4
Specifically,
section 5501(a) of the IRTPA, 118 Stat. at 3740, amended section 212(a)(3)(E)
of the Act by adding the following provision:
(iii) Commission of Acts of Torture or Extrajudicial Killings
Any alien who, outside the United States, has committed, ordered, incited,
assisted, or otherwise participated in the commission of—
(I) any act of torture, as defined in section 2340 of title 18, United States
Code; or
(II) 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
(28 U.S.C. 1350 note), is inadmissible.5Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
452
To determine whether the respondent is subject to removability under
section 237(a)(4)(D) of the Act, the DHS must establish that he acted “under
color of law” and that he “committed, ordered, incited, assisted, or otherwise
participated” in the commission of an extrajudicial killing. The respondent’s
actions during this period were clearly under color of law. His service with the
Jahorina Training Center Special Police Brigade in 1995 was under the
authority of the commander of the Center, and under the Constitution of the
Republic of Srpska, the special police answered to the military command
during wartime. However, even if he had been a police officer who was not
under the control of the military in 1995, for purposes of this statute, he would
have been acting under the color of law in his employment as a police officer
for the Republic of Srpska.
The respondent challenges the Immigration Judge’s determination that
the DHS proved by clear and convincing evidence that he “ordered,
incited, assisted, or otherwise participated” in an extrajudicial killing. While
the Act does not define the phrase “ordered, incited, assisted, or otherwise
participated,” the Attorney General has interpreted this phrase in the context
of the persecutor bar, saying that “[t]he plain meaning of the relevant words
in the statute is broad enough to encompass aid and support provided
by a political leader to those who carry out the goals of his group, including
statements of incitement or encouragement and actions that result
in advancing the violent activities of the group.” Matter of A-H-, 23 I&N Dec.
774, 784 (A.G. 2005). The terms “are to be given broad application” and
“do not require direct personal involvement in the acts of persecution.” Id.
“It is appropriate to look at the totality of the relevant conduct in determining
whether the bar to eligibility applies.” Id. at 785.
The United States Senate Report for the proposed Anti-Atrocity
Alien Deportation Act of 2003, S.710, 108th Cong. (2003), explains the
role of command authority as a form of assistance or participation
in persecution and indicates the intended broad reach of the legislation.
S. Rep. No. 108-209, at 10, 2003 WL 22846178, at *10 (Leg. Hist.). The
Anti-Atrocity Alien Deportation Act of 2003 was not passed as separate
legislation, but the statutory language from this bill was incorporated into the
IRTPA, which was enacted into law. The report states that the proposed act
was “intended to close loopholes in U.S. immigration laws that have allowed
aliens who have committed serious forms of human rights abuses abroad
to enter and remain in the country.” Id. at 1-2, 2003 WL 22846178, at *1-2.
It further provides as follows:
The statutory language—“committed, ordered, incited, assisted, or otherwise
participated in”—is intended to reach the behavior of persons directly or personally
associated with the covered acts, including those with command responsibility.
Command responsibility holds a commander responsible for unlawful acts when
(1) the forces who committed the abuses were subordinates of the commander (i.e.,Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
453
the forces were under his control either as a matter of law or as a matter of fact);
(2) the commander knew, or, in light of the circumstances at the time, should have
known, that subordinates had committed, were committing, or were about to commit
unlawful acts; and (3) the commander failed to prove that he had taken the necessary
and reasonable measures to (a) prevent or stop subordinates from committing such
acts, or (b) investigate the acts committed by subordinates in a genuine effort
to punish the perpetrators. Attempts and conspiracies to commit these crimes are
encompassed in the “otherwise participated in” language. This language addresses
an appropriate range of levels of complicity for which aliens should be held
accountable, and has been the subject of extensive judicial interpretation and
construction. See Fedorenko v. United States, 449 U.S. 490, 514 (1981); Kalejs
v. INS, 10 F.3d 441, 444 (7th Cir. 1993); U.S. v. Schmidt, 923 F.2d 1253, 1257–59
(7th Cir. 1991); Kulle v. INS, 825 F.2d 1188, 1192 (7th Cir. 1987).
Id. at 10, 2003 WL 22846178, at *10.
The cases cited in this provision indicate that there is a continuum
of conduct ranging from passive acceptance, which does not meet the legal
standard, to active, personal participation, which clearly does. See United
States v. Schmidt, 923 F.2d at 1258 (citing Fedorenko v. United States, 449
U.S. at 512 n.34). See generally Matter of J-B-N- & S-M-, 24 I&N Dec. 208,
213-14 (BIA 2007) (discussing the particular significance of cases that
Congress cited with approval in legislative history). These cited cases
also make clear that one can be found to have “assisted” in persecution
even if he has not “personally engaged in acts of violence.” Id.; see also
Kalejs v. INS, 10 F.3d at 444 (stating that “assistance” in persecution
is an independent basis for deportation, which “may be inferred from the
general nature of the person’s role in the war, so the atrocities committed
by a unit may be attributed to the individual based on his membership and
seeming participation”). In light of this legislative history, we conclude that
inadmissibility under section 212(a)(3)(E) of the Act is established where
it is shown that an alien with command responsibility knew or should have
known that his subordinates committed unlawful acts covered by the statute
and failed to prove that he took reasonable measures to prevent or stop such
acts or investigate in a genuine effort to punish the perpetrators.
The Immigration Judge made reasonable inferences from the totality of the
record to conclude that the respondent assisted in the commission
of extrajudicial killings because he knew that the 200 Bosnian Muslims would
be killed unlawfully, and even if he did not, he should have known that they
would. We find no clear error in these factual findings. See Matter of J-B-N-
& S-M-, 24 I&N Dec. at 215 (finding no clear error in the Immigration Judge’s
fact-finding as to the persecutors’ motive); Matter of S-P-, 21 I&N Dec. 486,
489-90 (BIA 1996) (noting that the motivation of the persecutor involves
questions of fact).
The respondent argues that he did not know what would happen to the 200
captured Bosnian Muslims and that the Immigration Judge’s conclusions to theCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
454
contrary were speculative. However, the Immigration Judge’s findings were
based on reasonable inferences from direct and circumstantial evidence of the
record as a whole, not on speculation. It is clear that “rank speculation and
conjecture ‘cannot be substituted for objective and substantial evidence.’”
Nuru v. Gonzales, 404 F.3d 1207, 1226 (9th Cir. 2005) (quoting Bandari
v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000)); see also Salaam v. INS, 229 F.3d
1234, 1238 (9th Cir. 2000) (noting that factual findings cannot be based
on an “unsupported assumption”). However, an “inference is not a suspicion
or a guess. It is a reasoned, logical decision to conclude that a disputed fact
exists on the basis of another fact that is known to exist.” Siewe v. Gonzales,
480 F.3d 160, 168 (2d Cir. 2007) (quoting Bickerstaff v. Vassar Coll., 196 F.3d
435, 448 (2d Cir. 1999) (internal quotation marks and brackets omitted)).
An inference is not impermissible as long as it is supported by “record facts,
or even a single fact, viewed in the light of common sense and ordinary
experience.” Id. at 169. “Drawing inferences from direct and circumstantial
evidence is a routine and necessary task of any factfinder,” and “[i]n the
immigration context, the IJ is the factfinder.” Id. at 167.
The Immigration Judge reasonably found, based on the testimony and
evidence, that the respondent was aware of the Kravica warehouse killings
before his unit was involved in capturing the 200 men and boys in question
several days later. For example, the ICTY Krstic Trial Judgment, which was
introduced as evidence in these proceedings, concluded that the Drina Corps
Command “must have been well aware of the fact that the executions had
taken place at the Kravica Warehouse” by the evening of July 13, 1995, given
their proximity to the area and the noise and high levels of activity associated
with the massive scale of the executions. ICTY Krstic Trial Judgment, supra,
at ¶ 215. Butler indicated that it was implausible that the respondent would
not have heard the mass executions, based on his close proximity to the
Kravika warehouse. Moreover, an International Warrant for the respondent’s
arrest issued by the Court of Bosnia and Herzegovina, which was also admitted
into evidence, states that the respondent “knew that his subordinates took part
in the execution of detainees at Kravica.”
Given that the respondent must have been aware of the Kravica warehouse
killings, it was also reasonable for the Immigration Judge to infer that the
respondent assisted in the unlawful killing of the 200 Bosnian Muslims that his
unit was involved in capturing on the same stretch of road a few days later
because he knew or should have known that they would face a similar fate.
As Butler testified, it was well known at this time that Serbians were
committing mass killings of Bosnian Muslims. While there is no evidence that
the respondent ordered any extrajudicial killing, the totality of the record
supports the conclusion that he assisted in such killing. This includes his
command responsibility, his presence, his platoon’s active participation, and
the finding that he must have been aware that mass killings of other similarlyCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
6 The respondent testified that when he saw Bosnian Muslims surrender on the road, “they
would take off their weapons and put them together, and on the other side, [would put their]
documents” before they were taken away in buses. Butler testified in a different context that,
in general, the separation of Bosnian Muslims from their identity documents was common
and was an indication that they would be executed.
455
situated Bosnian Muslims were ongoing at this time, particularly the
nearby mass execution at the Kravica warehouse several days earlier.
The Immigration Judge was not required to credit the respondent’s
wholesale denial of any knowledge or culpability related to the mass
executions of Bosnian Muslims captured on the Bratunac-Konjevic Polje
road.6
She did not commit clear error in crediting the version of events that the
DHS presented through expert testimony and documentary evidence.
An Immigration Judge is not required to accept a respondent’s assertions, even
if plausible, where there are other permissible views of the evidence based
on the record. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574
(1985) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”); see also
Blanco v. Mukasey, 518 F.3d 714, 721 (9th Cir. 2008) (finding that it was not
error for the Immigration Judge to reject the applicant’s plausible account
of the circumstances based on contrary evidence); Don v. Gonzales, 476 F.3d
738, 744 (9th Cir. 2007) (stating that the Immigration Judge is not required
to interpret the evidence in the manner advocated by the applicant).
The Immigration Judge reasonably rejected the respondent’s claims
of “ignorance” about the circumstances, finding that his testimony “was
contradicted on multiple occasions by the testimony of other witnesses and the
documents.” For example, the respondent testified that he was not aware
of any mass executions taking place while he was involved in guarding and
patrolling the Bratunac-Konjevic Polje road and claimed that he had never
heard of the Kravica warehouse killings. However, Butler testified that it was
not plausible that the respondent would have been unaware of the Kravica
warehouse killings at the time they happened. The respondent claimed that
he and his men were stationed on the road for only 3 or 4 days on dates that
he could not remember, while Butler testified that they were there from July 12
until at least July 19.
The respondent also claimed his platoon’s only interaction with Bosnian
Muslims was upon the surrender of the 100 to 200 men, that he never saw
buses travel along the road other than the three buses for these men, and that
when his platoon was involved in joint sweep operations, they were not
looking for “anything specific.” However, Butler testified that there was much
traffic on the road during this period, including on July 12 and 13 when
thousands of women and children who had been taken out of Srebrenica afterCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
7 When he testified in the respondent’s case, Jevic said that his testimony before the ICTY
was accurate.
456
being separated from men and boys were transported along this road in dozens
of convoys of buses. In addition, Jevic testified in a transcribed interview for
the ICTY, which was included in the record in this case, that the respondent’s
platoon encountered dead Bosnian Muslims while conducting sweep
operations along the Bratunac-Konjevic Polje road on July 16 and 17.7
Jevic
also indicated that the purpose of the sweep operations was to find escaping
Bosnian Muslims.
The need for a fact-finder to consider both direct and circumstantial
evidence in the persecutor bar context is well established. See, e.g., INS
v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992) (holding that persecutors’
motives may be established by direct or circumstantial evidence). It is often
the case that there is not direct evidence that the respondent persecuted
anyone, in part because of the lack of victim witnesses. See Kalejs v. INS,
10 F.3d at 444. The fact-finding in the persecutor bar context is analogous to
the fact-finding in the context of extrajudicial killing. Also, contrary to the
respondent’s assertions, the evidence here establishes more than a simple case
of men dying incident to the military objectives inherent in a civil war.
Instead, many men and boys who surrendered, often under the guise of
humane treatment, were captured and later executed. Moreover, the
respondent does not claim to have even asked what happened to the 200 who
surrendered to his unit and others, at that time or any later time.
Given the testimony and evidence as a whole, the Immigration Judge made
reasonable inferences from the record to conclude that the respondent knew
or should have known that the 200 men and boys would be unlawfully killed.
Consequently, the DHS met its burden to establish that the respondent
is removable under section 237(a)(4)(D) of the Act.
The respondent alternatively argues that the application of this ground
of removability to him would be impermissibly retroactive. It is true that the
conduct in dispute occurred in 1995, years prior to the enactment of the IRTPA
in 2004. However, the IRTPA provides that the amendments to sections
212(a)(3)(E) and 237(a)(4)(D) of the Act shall apply to “offenses committed
before, on, or after the date of enactment” of the IRTPA. IRTPA § 5501(c),
118 Stat. at 3740. Thus, his argument is inconsistent with the plain language
of the statute. See Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006).
In any event, “neither the Immigration Judge nor this Board may rule
on the constitutionality of the statutes that we administer.” Matter
of Rodriguez-Carrillo, 22 I&N Dec. 1031, 1035 (BIA 1999). Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
8 We do not intend to suggest that this exception to the Lozada requirements should
be applied outside of this circuit.
457
C. Documentary Evidence and Expert Testimony
The respondent alternatively argues that the documentary evidence and
expert testimony that the Immigration Judge relied on to conclude that
he assisted in extrajudicial killings was “obviously inadmissible and unreliable
evidence.” Even though his prior counsel eventually stipulated at the hearing
that he had no objection to the admissibility of any of the Government’s
evidence, the respondent asserts that the attorney’s failure to object to this
evidence constituted ineffective assistance of counsel, deprived him of due
process, and warrants a remand.
First, the respondent’s failure to object to the admission of the evidence
before the Immigration Judge constituted a waiver, and the issue was not
preserved for our review on appeal. See Matter of J-Y-C-, 24 I&N Dec. 260,
261 n.1 (BIA 2007); Matter of Garcia-Reyes, 19 I&N Dec. 830, 832 (BIA
1988); see also, e.g., Torres de la Cruz v. Maurer, 483 F.3d 1013, 1022-23
(10th Cir. 2007). It appears that after initially making some evidentiary
objections, counsel below made a tactical decision to focus his arguments
on the sufficiency of the evidence to establish whether the respondent was
involved in an extrajudicial killing, given his denials. See Matter of Gawaran,
20 I&N Dec. 938, 942 (BIA 1995) (noting that “in the absence of egregious
circumstances, an alien is bound by the ‘reasonable tactical actions’ of . . .
counsel” (quoting Matter of Velasquez, 19 I&N Dec. 377, 383 (BIA 1986)).
As a general rule, to prevail on an ineffective assistance of counsel claim,
the respondent must satisfy the requirements set forth in Matter of Lozada,
19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). In addition
to substantially complying with these requirements, the respondent must also
show prejudice as a result of his attorney’s ineffectiveness. Id. at 640. In the
United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this
case arises, prejudice exists when the performance of counsel is so inadequate
that there is a reasonable probability that but for the attorney’s negligence, the
outcome of the proceedings may have been different. See Maravilla Maravilla
v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). “To prevail, the respondent[]
must show that the conduct of former counsel was so egregious that it rendered
[the] hearing unfair.” Matter of B-B-, 22 I&N Dec. 309, 311 (BIA 1998).
The Ninth Circuit has held that an alien need not strictly comply with all
the procedural requirements of Matter of Lozada when the record reflects
a “clear and obvious case of ineffective assistance of counsel.” Castillo-Perez
v. INS, 212 F.3d 518, 526 (9th Cir. 2000); see also Ray v. Gonzales, 439 F.3d
582, 588 (9th Cir. 2006).8
The respondent, through new counsel on appeal,Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
9 The Federal Rules of Evidence, while not binding, may provide helpful guidance
in immigration proceedings because the fact that specific evidence would be admissible
under the Federal Rules “lends strong support to the conclusion that admission of the
evidence comports with due process.” Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996);
see also, e.g., Malkandi v. Holder, 576 F.3d 906, 916 (9th Cir. 2009) (noting that while strict
rules of evidence do not apply in immigration proceedings, the report in question would have
been admissible under the Federal Rules); Matter of DeVera, 16 I&N Dec. at 270-71 (finding
that a document was properly given full weight where its reliability was ensured because it
fell within an express hearsay exception under the Federal Rules of Evidence).
10 The respondent also argues that he is not fluent in English, so the DHS’s documentary
evidence was inadmissible because it had not been translated into his native language.
However, no such requirement exists in immigration proceedings. Cf. 8 C.F.R. § 1003.33
(2010) (providing that any foreign language document must be translated into English
to be admissible in Immigration Court). In any event, the respondent used a court-provided
interpreter at the hearing.
458
seeks to invoke this exception because he has not fulfilled the requirements
of Lozada, including affording prior counsel an opportunity to respond to the
allegations and filing a complaint with the appropriate disciplinary authorities.
We do not agree that ineffective assistance of prior counsel was clear and
obvious in this case.
In immigration proceedings, the “sole test for admission of evidence
is whether the evidence is probative and its admission is fundamentally fair.”
Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995); see also, e.g., Nyama
v. Ashcroft, 357 F.3d 812, 816 (8th Cir. 2004); Matter of DeVera, 16 I&N Dec.
266, 268-69 (BIA 1977). It is well settled that the Federal Rules of Evidence
are not binding in immigration proceedings and that Immigration Judges have
broad discretion to admit and consider relevant and probative evidence.
Matter of Interiano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010); Matter
of DeVera, 16 I&N Dec. at 268; see also section 240(b)(1) of the Act, 8 U.S.C.
§ 1229a(b)(1) (2006); Navarrette-Navarrette v. Landon, 223 F.2d 234,
237 (9th Cir. 1955) (stating that “administrative tribunals may receive
evidence which a court would regard as legally insufficient”).9

The respondent argues that the DHS’s documentary evidence was
inherently unreliable because it was not authenticated and there was no proper
chain of custody.10 In the Ninth Circuit, official records and public documents
from foreign governments may be authenticated either through the
requirements of 8 C.F.R. § 1287.6 (2010) or through any recognized
procedure, including the Federal Rules of Evidence. Vatyan v. Mukasey, 508
F.3d 1179, 1182-83 (9th Cir. 2007). The method of authentication that the
party submitting the evidence utilizes may affect the weight of the evidence,
and Immigration Judges “retain broad discretion to accept a document
as authentic or not based on the particular factual showing presented.”Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
11 One of the DHS exhibits contained a certificate of authenticity from the ICTY and
a written declaration signed by the custodian of the records, which would have established
the admissibility of this document without testimony.
12 While Butler did not separately reference every piece of evidence the DHS submitted, the
respondent’s attorney later withdrew his objections to any of the DHS’s evidence, making
further explanation of specific documents unnecessary.
459
Id. at 1185. Under the Federal Rules of Evidence, authentication “is satisfied
by evidence sufficient to support a finding that the matter in question is what
its proponent claims,” and may be accomplished through testimony
of a “witness with knowledge.” See Fed. R. Evid. 901(a)–(b)(1).
In this case, Butler testified specifically about how the ICTY seized records
from the archives of military and police installations, noting his own
participation in some investigative search teams and operations. He also
discussed the ICTY certification process for court proceedings, including how
documents were identified, catalogued, and stored. While he was not involved
in seizing or storing specific documents entered into evidence in this case,
he recognized the indexing and control numbers that were placed on them
in the certification process. He specifically discussed various documents
in evidence, including MUP records of the respondent’s service during the
war, ICTY trial judgments, the International Arrest Warrant, the video, and
photographic images from the video footage.11 In United States v. Vidacak,
553 F.3d 344 (4th Cir. 2009), which involved a criminal prosecution in Federal
district court for false statements related to immigration documents arising out
of the Bosnian War, the Fourth Circuit upheld the admission of some similar
evidence based on testimony by Butler.12 Also, as the Vidacak court discussed,
issues regarding authentication and chain of custody generally go to the weight
of the evidence, not its admissibility. Id. at 350 (citing United States
v. Cardenas, 864 F.3d 1528, 1531 (10th Cir. 1989)).
The respondent also argues that his counsel should have objected
to Butler’s qualifications as an expert witness and alleges that Butler’s
testimony should have been deemed inadmissible hearsay. We do not agree.
An expert witness is broadly defined as someone who is “qualified as an expert
by knowledge, skill, experience, training, or education.” Fed. R. Evid. 702;
see also Thomas v. Newton Int’l Enterprises, 42 F.3d 1266, 1269 (9th Cir.
1994). An expert has “scientific, technical, or other specialized knowledge
[that] will assist the trier of fact to understand the evidence or to determine
a fact in issue.” Fed. R. Evid. 702; see also Matter of Marcal Neto, 25 I&N
Dec. 169, 176 (BIA 2010) (stating that Immigration Judges may rely
on experts “regarding matters on which they possess little or no knowledge
or substantive expertise”). Butler was clearly qualified to testify as an expert
on military operations during the Bosnian War. Butler worked for 7 years withCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
13 An Immigration Judge who finds an expert witness qualified to testify may give different
weight to the testimony, depending on the extent of the expert’s qualifications or based
on other issues regarding the relevance, reliability, and overall probative value of the
testimony as to the specific facts in issue in the case. For example, the fact that Butler was
employed by the DHS and had worked for the prosecutor at the ICTY could have affected
the weight that the Immigration Judge chose to give to his testimony, but it would not have
made the testimony inadmissible. See Tun v. Gonzales, 485 F.3d 1014, 1027 (8th Cir. 2007)
(stating that involvement in an advocacy organization may affect the weight of an expert’s
testimony but is not an adequate basis to exclude it); see also Akinfolarin v. Gonzales, 423
F.3d 39, 43 (1st Cir. 2005) (noting that the reasons that an expert’s affidavit was found
to lack reliability, which were held to be sufficient to exclude the evidence, could have
alternatively been applied to lessen the weight the evidence was given after admitting it).
See generally Fed.R.Evid. 702 (discussing relevance of the expert testimony, qualifications
of the expert witness, and reliability of the expert opinion).
14 The Fourth Circuit has held that the foreign government documents that Butler testified
about in the Federal court case were not inadmissible hearsay because they fell within the
hearsay exception of Rule 803(8) of the Federal Rules of Evidence, which concerns records
and reports of public agencies. United States v. Vidacak, 553 F.3d at 351.
15 The respondent also argues that Gardner, who testified regarding the respondent’s
omission on his refugee application, should not have been permitted to testify because he did
not process the respondent’s application and had no knowledge of the respondent’s case,
other than reviewing his refugee application at the hearing. However, as a United States
Government official with significant experience in refugee processing, Gardner was qualified
to testify as an expert and to give an opinion as to whether certain facts, if known, would
have influenced the Government’s decision whether to grant the application. See United
States v. Matsumaru, 244 F.3d at 1101-02.
460
the ICTY as a military analyst, specifically assisted in war crimes
prosecutions, is a retired U.S. Army intelligence officer, and previously
testified as an expert on the Srebrenica massacre before the ICTY at the
Hague, the Bosnian War Crimes Court, and Federal courts in the United
States.13 See, e.g., United States v. Vidacak, 553 F.3d at 347-49.
Further, since Butler was an expert witness, his testimony would not
constitute inadmissible hearsay, even under the Federal Rules. “An expert
is permitted to base his opinion on hearsay evidence and need not have
personal knowledge of the facts underlying his opinion.” Aguilar-Ramos
v. Holder, 594 F.3d 701, 706 n.7 (9th Cir. 2010). Also, an expert opinion may
include reasonable inferences that the expert draws from the available facts
and data. See Fed. R. Evid. 703. Thus, Butler’s testimony was not
inadmissible, and it was proper for him to testify as to his inferences from the
facts in evidence.14 Also, his testimony was clearly adequate to support the
admission of the DHS’s evidence in Immigration Court.15
Moreover, to the extent that any of the DHS’s testimonial or documentary
evidence, such as the transcript of Jevic’s testimony at the ICTY, could haveCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
461
constituted inadmissible hearsay in Federal court, this fact alone would not
make the evidence inadmissible in immigration proceedings. Hearsay
is admissible in immigration proceedings if it is reliable and probative. See,
e.g., Kim v. Holder, 560 F.3d 833, 836 (8th Cir. 2009); Matter of Grijalva,
19 I&N Dec. 713, 722 (BIA 1988); see also Duad v. United States, 556 F.3d
592, 596 (7th Cir. 2009) (noting that any rule prohibiting hearsay evidence
in immigration proceedings would be very detrimental to many asylum
seekers). However, the hearsay nature may affect the weight of the evidence.
See, e.g., Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir. 2006); Chen
v. Gonzales, 434 F.3d 212, 218 (3d Cir. 2005); Matter of Kwan, 14 I&N Dec.
175, 177 (BIA 1972).
The Immigration Judge found the evidence presented by the DHS
to be relevant and probative, and she properly considered it in making her
factual findings. We do not agree that this is a case which involves clear and
obvious ineffective assistance resulting from prior counsel’s failure to object
to that evidence. Accordingly, we find no merit to the respondent’s arguments
in this regard.
D. Interpretation Issues
The respondent next generally challenges the competency of the interpreter
and properly notes that “a competent translation is fundamental to a full and
fair hearing.” Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000); see also
Matter of Tomas, 19 I&N Dec. 464, 465 (BIA 1987). In such a challenge, the
respondent must show both that the interpreter did not perform competently
and that his hearing was prejudiced by that failure. Hartooni v. INS, 21 F.3d
336, 339-40 (9th Cir. 1994). The respondent has not met either requirement
here.
On appeal, the respondent quotes some passages of imperfect English that
he assumes are based on inaccurate translations and a few examples
of confusion in the transcript, such as where the interpreter asked the witness
to repeat some of his answers and to shorten them to allow her to interpret
them verbatim. However, the respondent has not cited specific examples
of material testimony that was not translated or was translated incorrectly.
In general, interpretations are more challenging when a witness is testifying
by televideo, as was the case here. An interpreter asking for clarification
or making a correction to an interpretation does not necessarily show that
the interpretation was inadequate and may instead indicate an effort
to be as accurate as possible.
Moreover, the respondent has not shown how “a better translation would
have made any difference in the hearing’s outcome.” Singh v. Ashcroft, 367
F.3d 1139, 1144 (9th Cir. 2004). The respondent has not identified where the
Immigration Judge relied on incomplete or incorrectly translated testimonyCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
462
in reaching her decision, and he has not shown that the outcome would have
been any different, particularly given the Immigration Judge’s finding that the
DHS’s evidence met the Government’s burden in this case.
E. Termination of Removal Proceedings
The respondent also seeks termination of the proceedings, arguing that the
Immigration Judge lacked jurisdiction to address the issues in this case and
that even if she did, the proceedings should be barred, because the respondent
had been granted lawful permanent resident status more than 5 years prior
to the commencement of these proceedings in March 2008.
The respondent’s contention that many of the underlying issues in this case
involve international law and war crimes, over which the Immigration Court
does not have jurisdiction or competency, is wholly without merit. Contrary
to the respondent’s assertions, these are civil immigration proceedings whose
purpose is to determine his eligibility to remain in this country, not to punish
him for criminal or other conduct in his home country. See generally INS
v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (noting that the purpose
of deportation or removal proceedings is not to punish past transgressions and
that “[p]ast conduct is relevant only insofar as it may shed light on the
respondent’s right to remain” in the United States).
As discussed above, it is the respondent who chose to apply for and obtain
refugee status in the United States and who was not truthful in the
representations he made in that regard. The gravamen of these proceedings
concerns whether he is entitled to maintain the privilege of the lawful
permanent resident status that he later received in the United States. The
Immigration Court clearly has the legal authority to adjudicate these matters.
See section 240(b)(1) of the Act; 8 C.F.R. §§ 1003.10(b), 1240.1(a)(1) (2010).
We also do not agree that these proceedings are barred by a statute
of limitations to revoke a grant of lawful permanent resident status. To revoke
a grant of adjustment of status, the DHS can commence either rescission
proceedings under section 246(a) of the Act, 8 U.S.C. § 1256(a) (2006),
or removal proceedings under section 240. See Biggs v. INS, 55 F.3d 1398,
1401 (9th Cir. 1995). Rescission proceedings must be instituted within 5 years
of the alien’s adjustment of status. See section 246(a) of the Act. However,
the Act places no such time restriction on removal proceedings, which can
be instituted at any time. See Biggs v. INS, 55 F.3d at 1401 & n.3.
Contrary to the respondent’s assertions, the DHS had authority to initiate
these removal proceedings, and a 5-year statute of limitations is not applicable.
See Matter of Belenzo, 17 I&N Dec. 374 (BIA 1981). The respondent urges
us to change our interpretation in light of Garcia v. Attorney General of the
United States, 553 F.3d 724 (3d Cir. 2009), which held that a 5-year statute
of limitations for seeking to rescind a grant of adjustment of status underCite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
463
section 246(a) of the Act also applies to removal proceedings. See also
Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996). However, this authority is not
consistent with the law of the Ninth Circuit, where the case at hand arises. See
Garcia v. Att’y Gen. of the U.S., 553 F.3d at 728 n.4; see also Monet v. INS,
791 F.2d 752, 754 (9th Cir. 1986); Oloteo v. INS, 643 F.2d 679, 681-83 (9th
Cir. 1981). We generally follow a circuit court’s precedent in adjudicating
a case arising in that circuit. Matter of Anselmo, 20 I&N Dec. 25, 31 (BIA
1989).
Moreover, we continue to view our longstanding approach to this issue
as consistent with the overall statutory scheme and congressional intent. See
Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010) (applying Chevron, U.S.A.,
Inc., v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984)). Removal
proceedings are different from rescission proceedings and have greater
procedural safeguards for the alien. Stolaj v. Holder, 577 F.3d 651, 656 (6th
Cir. 2009). Furthermore, Congress amended section 246(a) of the Act
to clarify that it is not necessary to rescind an alien’s permanent resident status
before commencing removal proceedings. See Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 378(a), 110
Stat. 3009-546, 3009-649; Kim v. Holder, 560 F.3d 833, 836-38 (8th Cir.
2009).
We are aware of no circuit that has adopted the Third’s Circuit’s view
regarding a 5-year statute of limitations on the commencement of removal
proceedings. See Garcia v. Att’y Gen. of the U.S., 553 F.3d at 729-31
(Fuentes, J., dissenting); see also, e.g., Stolaj v. Holder, 577 F.3d at 655-56;
Asika v. Ashcroft, 362 F.3d 264 (4th Cir. 2004). Based on the foregoing,
we affirm the Immigration Judge’s determination that removal proceedings
were properly instituted against the respondent.
F. Other Relief from Removal
Finally, the respondent requests that the record be remanded to allow him
to seek asylum, withholding of removal, and protection under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res.
39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984)
(entered into force June 26, 1987; for the United States Apr. 18, 1988)
(“Convention Against Torture”), on account of his fear of criminal
prosecution for war crimes based on his service during the war. Inasmuch
as the respondent is removable under section 237(a)(4)(D) of the Act,
he is statutorily ineligible for asylum, withholding of removal, and withholding
under the Convention Against Torture. Sections 208(b)(2)(A)(i), 241(b)(3)(B)
of the Act, 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B) (2006); 8 C.F.R.
§§ 1208.13(c), 1208.16(d)(2) (2010). Cite as 25 I&N Dec. 445 (BIA 2011) Interim Decision #3708
464
However, the respondent is statutorily eligible to seek deferral of removal
under the Convention Against Torture, and the Immigration Judge did not
consider this issue in the first instance. We will therefore remand the record
to the Immigration Judge for the sole purpose of providing the respondent the
opportunity to establish his eligibility for such protection. See 8 C.F.R.
§§ 1003.1(d)(3)(iv), 1208.16(c)(4). In remanding the record, we render
no judgment on the merits of the respondent’s claim for protection. See Matter
of Interiano-Rosa, 25 I&N Dec. at 266. Accordingly, the respondent’s appeal
will be sustained in part and dismissed in part, and the record will
be remanded.
ORDER: The appeal is sustained in part and dismissed in part.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.