News From the Courts

Posted on: May 30th, 2017
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CA8 Finds BIA Properly Placed Burden on Petitioner to Prove That Statutory Bar to Waiver Relief Did Not Apply

Vladimir Maric, a citizen of Bosnia and Herzegovina was admitted in 1999 as a refugee with his wife and two children to the United States. While he became a lawful permanent resident in 2001, the Department of Homeland Security (DHS) commenced removal proceedings in January 2011, asserting that he obtained immigration benefits by fraud or willful misrepresentation of a material fact. An Immigration Judge (IJ) found Maric removable due to his concealment of his time served from January 2, 1995 through January 27, 1996 in the Army of the Serb Republic, Vojska Repubika Srpske (VRS). This omission is particularly important due to the time frame in which it occurred. In July 1995, thousands of Bosnian Muslim prisoners were massacred in Srebrenica, Bosnia and Herzegovina. Maric applied for a discretionary waiver of deportation, but the IJ found his ineligible for this relief because of his failure to prove himself to not be an alien who has “committed… assisted, or otherwise participated in” extrajudicial killings under color of law of any foreign nation. This decision was affirmed by the Board of Immigration Appeals (BIA). Maric subsequently petitioned for review with the argument that the BIA erred by not requiring the government to prove by clear and convincing evidence proving his inadmissibility.

Listed in the Immigration and Nationality Act (INA) are classes of aliens which are “ineligible for visas or admission.” Included within the “security and related grounds” class is aliens who have committed or participated in extrajudicial killings, and included in the “illegal entrants” class are those who obtain immigration benefits through fraud or material misrepresentation. While an alien removal for this reason might be eligible for a discretionary waiver of removal, aliens who have participated in extrajudicial killings under color law of a foreign nation, including Maric, are ineligible for this waiver. Though the Attorney General’s regulations state that the onus is on DHS to prove that an alien is removable through clear and convincing evidence, an alien applying for a waiver of removal in this situation “has the burden of proof to establish that … [he] satisfies the applicable eligibility requirements.” If evidence presented indicates that any of the grounds for mandatory denial of the application may apply, then it is the responsibility of the alien to supply evidence proving otherwise.

Michael MacQueen, a senior historian in DHS’s Human Rights Division, testified at the hearing that the VRS did in fact participate in the July 1995 coordinated killing operation in Srebrenica. Maric’s failure to disclose his service in the VRS during this time was a material misrepresentation making his removable, according to the Immigration Judge. DHS presented evidence which suggested that Maric may have participated in the atrocities in Srebrenica, which were confirmed by MacQueen. VRS enrollment and attendance records list Vladimir Maric, with the correct birth date, as having carried out combatant assignments for the Sixth Battalion, Third Company, of the Zvornik Brigade throughout most of the month of July 1995. MacQueen also testified about records from the International Criminal Tribunal for the former Yugoslavia indicate that members of the Sixth Battalion were housed at a school building in Petkovci. On July 14, the VRS detained about 1,000 Bosnian Muslim men and boys who were captured in the process of fleeing the area. Members of the Sixth Battalion took the prisoners from the school building to a nearby dam, where they executed the prisoners by automatic rifle, and buried them in mass graves. Maric testified that in January 1995 he was forcibly conscripted by the VRS, and that in July, the only day he was on active duty was on the 22nd when the VRS removed him from a marketplace, gave him an old military uniform and a gun, and bused him to Petkovci. He then walked to Bajkovica and was instructed to sit and watch the trenches. He testified he saw unarmed men crossing a bridge, but he never witnessed any shooting or dead bodies. He also provided two documents related to his military service, a certificate of exemption from September 1994 which showed his previous exemption from the draft due to medical reasons, and a certificate of conscription demonstrating service in the Zyornik Brigade from January 2 to April 4, 1995.

The Immigration Judge, after weighing this evidence, concluded that Maric may have participated in the extrajudicial killings in Srebrenica which would make him ineligible for a waiver of removal. The burden was placed on Maric to produce evidence demonstrating that grounds for mandatory denial of a waiver did not apply, and the IJ denied Maric’s request for a waiver of removal, finding his testimony regarding his limited military service as lacking credibility and the documents he provided did not relate to his involvement with the Zvornik Brigade in July 1995.

Maric appealed the decision to the BIA, asserting that the IJ erred in not requiring DHS to prove that he had in fact participated in the Srebrenica massacre, but the BIA rejected this contention. DHS did not charge Maric with removability due to his participation in extrajudicial killings, but rather DHS proved by clear and convincing evidence that he was removable due to his willful misrepresentation of a fact. Thus, the issue was whether he was eligible for waiver relief from that removal. Therefore, the BIA found that since the IJ found the government’s evidence to “indicate[s] that one or more of the grounds for mandatory denial of application for relief may apply,” the burden was properly placed on Maric to prove his eligibility for waiver relief by a preponderance of the evidence.

Maric argued again on appeal that the BIA and IJ erred in not requiring DHS to introduce clear and convincing evidence which indicated that he was inadmissible and therefore removable because of his participation in the extrajudicial killings at Srebrenica. The Court of Appeals, however, also denied this petition for review for the same reasons as the IJ and BIA before it. Maric’s willful misrepresentation of facts removed his eligibility for the waiver of relief.

For more information, view the full case.

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CA8 Finds Asylum Applicant Failed to Demonstrate That His Subjective Fear Was Objectively Reasonable

Francisco Lemus-Arita, a native and citizen of Guatemala appealed a 2016 decision by the Board of Immigration Appeals (BIA) which affirmed a decision to deny cancellation of removal by an Immigration Judge (IJ).

Lemus-Arita, a native and citizen of Guatemala, initially entered the United States in 2002, and returned to Guatemala in anticipation of bringing his wife and son back to his home country with them. After a period of approximately one month, he illegally entered the United States again on January 23, 2012, close to Brownsville, Texas. The Department of Homeland Security detained him and issued him a notice to appear, and Lemus-Arita conceded removability and filed an application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). When testifying in a hearing before an IJ, Lemus-Arita stated that upon his return to Guatemala, he learned of the August 2011 killing of his cousin, Oscar. It was rumored that the motive for Oscar’s killing was due to his involvement in a kidnapping, and that it was perpetrated by Anti-Secuestro, a vigilante group whose name translates to “anti-kidnapping”. His uncle, according to Lemus-Arita, shortly thereafter started a rumor that Lemus-Arita returned from the United States with the purpose of seeking revenge for his cousin’s death, which led to family members informing Lemus-Arita of the rumor that Anti-Sequestro was trying to locate and kill him. While he conceded that he was never actually harmed and that he never personally received threats nor saw anyone from the Anti-Sequestro group, Lemus-Arita, upon hearing these rumors, abandoned his plans of returning home to Guatemala and establishing a life and returned to the United States.

Although he testified about the rumors, Lemus-Arita failed to report the threats to the police or Guatemalan government due to rumors of the Anti-Sequestro group having members in the police department. Lemus-Arita’s father did file a police report, but no ensuing investigation ever materialized. Lemus-Arita’s sister, Evelyn, also testified in court, stating that, following Lemus-Arita’s departure from Guatemala, she saw trucks in her village painted with a symbol which identified them as a Guatemalan political party and which she associated with Oscar’s purported killers, though a direct identification of these individuals as the Anti-Sequestro group was not established. Evelyn additionally testified that armed men refusing to identify themselves and dressed in black clothing and ski masks came to her house and informed her of their intentions of finding and killing Lemus-Arita. According to her testimony, they also threatened her if she withheld information about her brother’s whereabouts, and though she was never harmed, they watched her house and followed her for several days. Lemus-Arita also testified that his sister called him and informed him of an assailant shooting at her house, though she was not harmed in the incident and did not file a police report.

While the Immigration Judge found Lemus-Arita’s testimony to be credible, he attributed only partial credibility to Evelyn’s testimony. He stated that inconsistencies and possible conflict of interest due to her own pending asylum application led him to this conclusion. The IJ then asserted Lemus-Arita’s disqualification from asylum due to his failure to establish that he had suffered past persecution or a well-founded fear of future persecution. This resulted in the IJ finding that Lemus-Arita also had not carried out his burden of establishing that he qualified for withholding of removal or relief under the CAT. Alternatively, the IJ concluded that Lemus-Arita never successfully demonstrated that any persecution he would be subjected to either by the government or a third party would be anything that the government is unwilling or unable to control. The BIA affirmed the decision made by the IJ.

Before the Court of Appeals, Lemus-Arits’s initial contention was the BIA’s incorrect standard of review to the IJ’s finding that he had not demonstrated an objectively reasonable fear of future persecution and that the matter requires remand. The court of appeals disagreed with Lemus-Arita’s interpretation of the ruling of the BIA which stated, “[w]e find no clear error of fact or mistake of law in the Immigration Judge’s assessment.”. Lemus-Arita interpreted this to mean that the BIA reviewed for clear error the BIA’s determination that Lemus-Arita’s fear of future persecution was objectively unreasonable, but the Court of Appeals disagreed with that view. Within the clause, the phase “clear error”, according to the Court of Appeals, modifies “fact,” not “mistake of law”. Since this misinterpretation by Lemus-Arita was his only evidence supporting his first contention, the Court of Appeals found no reason to conclude that the BIA applied the wrong standard of review.

Lemus-Arita then questioned the merit of the BIA decision, but his lack of evidence supporting his eventual persecution upon returning to Guatemala also undermined this claim. The Attorney General may grant asylum to any alien who demonstrates that they are a refugee, defined as an alien who is unwilling or unable to return his country of nationality because of persecution or well-founded fear of persecution, but the burden is placed upon the alien to provide evidence supporting the existence of persecution or potential persecution. As mentioned previously, the evidence supplied by Lemus-Arita was found to be insufficient to this end. The evidence supplied by his sister amounted to little more than rumors, with no physical evidence of harm and no paperwork suggesting that these events occurred. Furthermore, these accounts were three years removed at the time of the IJ’s decision and five years removed from the Court of Appeals decision. To speculate that the group would seek Lemus-Arita out after such a period of time was determined to be speculative and objectively unreasonable.

For these reasons, the Court of Appeals denied the petition.

For more information, view the full case.

 

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