M-B-C

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 (BIA 2017)                           Interim Decision #3892




                        Matter of M-B-C-, Respondent
                               Decided May 18, 2017

                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals


  Where the record contains some evidence from which a reasonable factfinder could
conclude that one or more grounds for mandatory denial of an application for relief may
apply, the alien bears the burden under 

(d) (2016) to prove by a
preponderance of the evidence that such grounds do not apply.
FOR RESPONDENT: Simon Tsang, Esquire, Tampa, Florida
FOR THE DEPARTMENT OF HOMELAND SECURITY: James E. M. Craig, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MULLANE, Board Member:


    In a decision dated March 12, 2015, an Immigration Judge denied the
respondent’s request for a waiver of deportability under section 237(a)(1)(H)
of the Immigration and Nationality Act, 

(a)(1)(H) (2012),
and his applications for asylum and withholding of removal under sections
208 and 241(b)(3) of the Act, 

 and 1231(b)(3) (2012). 1 The
respondent has appealed from that decision. The appeal will be dismissed.

               I. FACTUAL AND PROCEDURAL HISTORY
    The respondent is a native and citizen of Bosnia-Herzegovina who was
admitted to the United States as a refugee on September 29, 1998. On
January 15, 2002, his status was adjusted to that of a lawful permanent
resident. On August 25, 2011, the Department of Homeland Security
(“DHS”) initiated removal proceedings by filing a notice to appear charging
that the respondent is removable under section 237(a)(1)(A) of the Act as an


1
   Although the respondent applied for additional forms of relief from removal during the
proceedings, he has only meaningfully challenged the Immigration Judge’s decision to
deny his request for a section 237(a)(1)(H) waiver and his applications for asylum and
withholding of removal. We consider any issues regarding the other forms of relief to be
waived. See Matter of R-A-M-, 

, 658 n.2 (BIA 2012).

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alien who was inadmissible at the time of entry or adjustment of status under
section 212(a)(6)(C)(i) of the Act, 

(a)(6)(C)(i) (2012), as an
alien who procured admission and adjustment of status by fraud or willful
misrepresentation of a material fact, and under section 212(a)(7)(A)(i)(I)
as an immigrant who did not present a valid passport. These charges were
based on allegations that the respondent omitted information about his
military service during the Bosnian War from both his Registration for
Classification as Refugee (Form I-590) and his Application to Register
Permanent Residence or Adjust Status (Form I-485). The respondent
conceded removability and applied for, among other things, a waiver of
deportability under section 237(a)(1)(H) of the Act, asylum, and withholding
of removal.
    The Immigration Judge heard testimony from the respondent and from
Michael MacQueen, a senior historian in the Human Rights Law Division of
the DHS, who testified as a subject-matter expert on the Bosnian War. In her
decision, the Immigration Judge found that the respondent was not a credible
witness and denied all of his applications for relief. Specifically, the
Immigration Judge denied the respondent’s application for a section
237(a)(1)(H) waiver after determining that he did not meet his burden of
establishing that he is not barred from such relief as an alien who assisted or
otherwise participated in genocide or as an alien who committed, ordered,
incited, assisted, or otherwise participated in the commission of any
extrajudicial killing. The Immigration Judge also denied the respondent’s
applications for asylum and withholding of removal, concluding that
he is subject to the persecutor bar in sections 208(b)(2)(A)(i) and
241(b)(3)(B)(i) of the Act.
    On appeal, the respondent challenges the Immigration Judge’s adverse
credibility determination. He also argues that the Immigration Judge erred
in concluding that he is barred from seeking a section 237(a)(1)(H) waiver
based on his activities during the Bosnian War. Additionally, the respondent
contends that the Immigration Judge improperly determined that he is
ineligible for asylum and withholding of removal. We review the
Immigration Judge’s findings of fact, including her findings regarding the
respondent’s credibility, to determine if they are clearly erroneous. 

(d)(3)(i) (2016). We review de novo questions of law, discretion,
and judgment, and all other issues on appeal. 

(d)(3)(ii).

                          II. LEGAL STANDARDS
   The Attorney General may, pursuant to section 237(a)(1)(H) of the Act,
waive the removability of certain aliens who are inadmissible at the time of


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entry or adjustment of status. However, such a discretionary waiver is
unavailable to any alien described in section 237(a)(4)(D), which includes
those described in sections 212(a)(3)(E)(ii) and (iii)(II) of the Act.
    Section 212(a)(3)(E)(ii) of the Act renders inadmissible any alien who
ordered, incited, assisted, or otherwise participated in “genocide,” as defined
in 

(a) (2012), which provides, in relevant part:

       (a) Basic Offense.—Whoever, whether in time of peace or in time of war and with
     the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial,
     or religious group as such—
         (1) kills members of that group;
         (2) causes serious bodily injury to members of that group;
         (3) causes the permanent impairment of the mental faculties of members of the
       group through drugs, torture, or similar techniques;
         (4) subjects the group to conditions of life that are intended to cause the physical
       destruction of the group in whole or in part;
         (5) imposes measures intended to prevent births within the group; or
         (6) transfers by force children of the group to another group;
       shall be punished . . . .

   Section 212(a)(3)(E)(iii)(II) of the Act renders inadmissible “[a]ny alien
who, outside the United States, has committed, ordered, incited, assisted, or
otherwise participated in the commission of . . . under color of law of any
foreign nation, any extrajudicial killing.” For purposes of this section, the
term “extrajudicial killing” is defined as

     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.

Torture Victim Protection Act of 1991, 

(a), 

, 73.
    The respondent has the burden to establish that he satisfies the applicable
eligibility requirements for his applications for relief from removal. See
section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A) (2012). “If the
evidence indicates that one or more of the grounds for mandatory denial of
the application for relief may apply, the alien shall have the burden of proving
by a preponderance of the evidence that such grounds do not apply.” 

(d) (2016) (emphases added).




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                                  III. ANALYSIS
                                    A. Credibility
    We are not persuaded of any clear error in the Immigration Judge’s
adverse credibility determination, which is based on specific and cogent
reasons, including inconsistencies in the respondent’s testimony, as well as
an implausible aspect of his testimony. See section 240(c)(4)(C) of the Act;
see also section 208(b)(1)(B)(iii) of the Act; Matter of J-Y-C-, 

 (BIA 2007).
    This case involves events that occurred during the Bosnian War, a
conflict arising from the dissolution of the former Yugoslavia. The war was
fought along ethnic lines between the Army of the Republic of Srpska
(“VRS”), which was primarily composed of Eastern Orthodox Serbs; the
Army of the Republic of Bosnia and Herzegovina, a group that was mostly
made up of Muslim Bosniaks; and the Croatian Defense Counsel, which was
mostly composed of Roman Catholic Croats. Mr. MacQueen explained that
the war was largely waged against the civilian population and was
characterized by ethnic cleansing. Early in the war, the Serbs were able to
dominate most of Bosnia and Herzegovina, but Bosniaks secured pockets of
resistance, including areas in and around the Bosnian city of Srebrenica. In
July 1995, the VRS commenced an offensive against Srebrenica, which
ultimately resulted in the forced removal of 25,000 women and small
children and the massacre of approximately 8,000 men and boys.
    Mr. MacQueen testified that the respondent served in the VRS in the town
of Ilijaš from May 1992 until July 1992. In July 1992, the respondent
assumed a leadership role as company commander in the Bratunac Light
Infantry Brigade, where he served until the fall of 1993. The respondent then
joined the Ministry of Internal Affairs Bratunac Police, where he served until
the fall of 1994. He served in the Janja Special Police from November 1994
until June 1996.
    According to Mr. MacQueen, VRS soldiers engaged in summary
executions in and around Ilijaš during the time that the respondent was
stationed there. He testified that when the respondent served in the Bratunac
Light Infantry Brigade, the unit was involved in the systematic expulsion of
the civilian population and the killing of hundreds, if not thousands, of
Muslim civilians. Mr. MacQueen further testified that the special police
units from Janja were deployed in the area of operations of Srebrenica during
the July 1995 massacre and were involved in killing and capturing Muslim
civilians who attempted to escape. 2
2
   According to Mr. MacQueen, the Bratunac Police did not commit any significant human
rights abuses during the respondent’s service from the fall of 1993 to the fall of 1994.

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    The respondent testified that he served in the VRS from 1992 to 1993.
Although he denied possessing an “official” rank, he confirmed that he was
elevated to the position of company commander in the Bratunac Light
Infantry Brigade and that he commanded approximately 100 soldiers in that
role. He claims to have never had a part in capturing, killing, or forcibly
expelling civilians during his service in the VRS. The respondent also
confirmed that he was transferred to the Bratunac Police in late 1993.
    The respondent denies that he served with the special police in Janja,
testifying instead that he served in Janja’s reserve police force. This
testimony is inconsistent with that of Mr. MacQueen, as well as documentary
evidence in the record. The record contains a decision prepared by the
Municipality of Bijeljina Department of Veterans and Civil Protection,
certifying that the respondent served as a member of the “Ministry of Internal
Affairs of the Republic of Srpska, Local Police Unit Janja,” from November
1994 until June 1996. Mr. MacQueen testified that the English translation of
this document is incorrect and that the original Serbo-Croation document
indicates that the respondent served in the Janja special police. The
respondent concedes that this is the case on appeal.
    The record also contains photographs showing the respondent wearing a
uniform that Mr. MacQueen testified was indicative of service in the special
police. Finally, the respondent submitted written pleadings admitting the
factual allegations contained in the notice to appear, including the allegations
that he served in the Ministry of Internal Affairs Special Police Brigade. In
light of this evidence, we are not persuaded of any clear error in the
Immigration Judge’s finding that the respondent served in the special police
force in Janja from November 1994 until June 1996, and we agree that the
respondent’s testimony to the contrary undermines his credibility as a
witness.
    When questioned, the respondent testified that he had never heard of any
Muslim civilians being captured, killed, or forced to leave their homes during
the time of his service, apart from some incidents that occurred on the other
side of Bosnia. We agree with the Immigration Judge that it is implausible
that the respondent would be ignorant of the human rights abuses that
occurred in and around Ilijaš during the time of his service in the VRS or of
those committed by members of the Bratunac Light Infantry Brigade when
he served with that group. It was reasonable for the Immigration Judge to
conclude that the respondent’s professed ignorance of such abuses further
undermines his credibility as a witness.
    In view of the foregoing inconsistencies and the implausibility of the
respondent’s testimony, and upon consideration of all relevant evidence, we
conclude that the Immigration Judge’s adverse credibility determination is
not clearly erroneous. See 

(d)(3)(i).

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                            B. Extrajudicial Killing

    The respondent has not offered any evidence to rebut or otherwise
challenge the accuracy of the description of events outlined by
Mr. MacQueen—namely, the summary executions (1) in and around Ilijaš
between May and July 1992; (2) in and around Bratunac between July 1992
and November 1993; and (3) in and around Srebrenica in July 1995. The
respondent also has not meaningfully challenged the Immigration Judge’s
determination that these events constitute extrajudicial killings within the
meaning of section 212(a)(3)(E)(iii)(II) of the Act. In addition, the
respondent concedes that he operated under color of law throughout his
police and military service. Nevertheless, the respondent contends that the
record evidence is insufficient to indicate that he may have committed,
ordered, incited, assisted, or otherwise participated in the commission of any
extrajudicial killings because the DHS has not provided any direct evidence
that he was ever personally involved in or aware of the summary executions
and other human rights abuses outlined above.
    It is well settled, however, that the terms “committed, ordered, incited,
assisted, or otherwise participated” under the Act “are to be given broad
application” and “do not require direct personal involvement in the acts” in
question. Matter of A-H-, 

 (A.G. 2005), remanded on
other grounds, Haddam v. Holder, 

 (4th Cir. 2013). Rather,
“there is a continuum of conduct ranging from passive acceptance, which
does not meet the legal standard, to active, personal participation, which
clearly does.” Matter of D-R-, 

 (BIA 2011), remanded
on other grounds, Radojkovic v. Holder, 

 (9th Cir. 2015).
We have concluded that an alien is inadmissible under section 212(a)(3)(E)
of the Act where it is established 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.” 

    Moreover, unlike Matter of D-R-, where the DHS bore the burden of
demonstrating the alien’s removability under section 237(a)(4)(D) of the Act
by clear and convincing evidence, in this case we must determine whether
the respondent is ineligible for a section 237(a)(1)(H) waiver. Thus, the
relevant inquiry under 

(d) is whether the evidence indicates
that the grounds for mandatory denial in sections 212(a)(3)(E) and
237(a)(4)(D) of the Act may apply to him so that he then has the burden to
show that they do not apply.
    In using the terms “indicates” and “may apply” together, 

(d) does not create an onerous standard and necessarily means a

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showing less than the preponderance of the evidence standard. Otherwise,
the regulation would have simply employed the preponderance standard.
Accordingly, we hold that where the record contains some evidence from
which a reasonable factfinder could conclude that one or more grounds for
mandatory denial of the application may apply, the alien bears the burden
under 

(d) to prove by a preponderance of the evidence that
such grounds do not apply.
    The decision of the United States Court of Appeals for the Eighth Circuit
in Maric v. Sessions, 

 (8th Cir. 2017), supports our holding in
this regard. In that case, the court ruled that under 

(d),
once evidence is presented that “indicates” that an alien “may have
participated in . . . extrajudicial killings,” the alien bears the burden of
proving “by a preponderance of the evidence that the statutory bar in
[section 212(a)(3)(E)(iii)] did not apply.” Id. at 523.
    Mr. MacQueen’s testimony establishes that local VRS units were
responsible for the extrajudicial killings that occurred in and around Ilijaš
between May and July 1992 and that the Janja Special Police were
responsible, in part, for the extrajudicial killings that occurred in and around
Srebrenica in July 1995. The record further establishes that the respondent
served in the VRS in Ilijaš between May and July 1992 and that he served in
the Janja Special Police in July 1995.
    We agree with the Immigration Judge that the respondent’s service in the
VRS, in a location where VRS soldiers engaged in extrajudicial killings and
during the time those extrajudicial killings occurred, is sufficient to indicate
that he may have committed, ordered, incited, assisted, or otherwise
participated in those extrajudicial killings and that he therefore may be an
alien described in section 212(a)(3)(E)(iii)(II) of the Act. The respondent
therefore bore the burden of proving by a preponderance of the evidence that
he is not an alien described in that section. The sole evidence offered by the
respondent to meet this burden is his testimony that he had no knowledge of
any extrajudicial killings that occurred in or around Ilijaš during the time in
question. We agree with the Immigration Judge that this testimony, which
lacks credibility, is insufficient to meet the respondent’s burden.
    Similarly, the respondent’s service in the Janja Special Police, in a
location where its members engaged in extrajudicial killings and during the
time they occurred, is sufficient to indicate that he may have committed,
ordered, incited, assisted, or otherwise participated in those extrajudicial
killings. His incredible testimony denying that he served in or around
Srebrenica at that time is insufficient to meet his burden to prove by a
preponderance of the evidence that he did not engage in any of extrajudicial
killings that occurred there.


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    Mr. MacQueen’s testimony and the documentary evidence provided by
the DHS also establish that the Bratunac Light Infantry Brigade was involved
in the extrajudicial killing of Bosniak Muslims between late 1992 and early
1993, while the respondent was serving as a company commander. We agree
that this evidence is sufficient to establish that the respondent, as an
individual with command responsibility, either knew or should have known
of the extrajudicial killings that took place in his area of responsibility, and
therefore it indicates that the respondent may be an alien described in
212(a)(3)(E)(iii)(II) of the Act. We also conclude that the respondent’s
incredible testimony that he was unaware of any such killings is insufficient
to meet his burden to prove by a preponderance of the evidence that he is not
an alien described under that section of the Act.

                                     C. Genocide

    The respondent does not challenge the Immigration Judge’s
determination that the summary execution of 8,000 Bosniak Muslims in
Srebrenica in July 1995 constitutes genocide within the meaning of section
212(a)(3)(E)(ii) of the Act. As previously discussed, the record shows that
the Janja Special Police were responsible, in part, for those killings. The
respondent’s service in the Janja Special Police, in a location where its
members engaged in genocide and during the time the genocide occurred, is
sufficient to indicate that he may have assisted, or otherwise participated in
the genocide. As before, the respondent’s incredible testimony denying that
he served in or around Srebrenica at that time is insufficient to meet his
burden to prove by a preponderance of the evidence that he did not assist or
otherwise participate in the genocide that occurred there.

                  D. Asylum and Withholding of Removal

    Finally, the respondent has not challenged the Immigration Judge’s
determination that the summary executions discussed above qualify as
persecution of Bosniaks on account of a statutorily protected ground. Based
on the above discussion, we conclude that the evidence presented is sufficient
to indicate that the respondent may have assisted or otherwise participated in
this persecution and that his incredible testimony is insufficient to prove by
a preponderance of the evidence that he did not. Consequently, we agree
with the Immigration Judge that the respondent is ineligible for asylum and
withholding of removal because he is subject to the persecutor bar under
sections 208(b)(2)(A)(i) and 241(b)(3)(B)(i) of the Act. See Matter of J. M.
Alvarado, 

, 29–30 (BIA 2017) (holding that an alien who has
assisted or participated in persecution based on a protected ground is subject

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to the persecutor bar, without regard to the alien’s personal motivation for
assisting or otherwise participating in the persecution).

                             IV. CONCLUSION
    The DHS has presented extensive evidence showing not only that the
respondent was a member of military and police units that engaged in
extrajudicial killings and genocide during the Bosnian War, but also that his
service in those units corresponds with the times and locations of
extrajudicial killings and genocide. Based on this evidence, it was reasonable
for the Immigration Judge to conclude that the respondent may have
committed, ordered, incited, assisted, or otherwise participated in
extrajudicial killings and genocide and, consequently, that he might be an
alien described in sections 212(a)(3)(E)(ii) and (iii)(II) and 237(a)(4)(D) of
the Act. Apart from his testimony, which lacks credibility, the respondent
did not offer sufficient evidence to meet his burden of proving by a
preponderance of the evidence that he is not an alien described in those
provisions. It was also reasonable for the Immigration Judge to conclude that
the respondent may have ordered, incited, assisted, or otherwise participated
in persecution and that his incredible testimony does not establish by a
preponderance of the evidence that he is not subject to the persecutor bar.
    We will therefore uphold the Immigration Judge’s adverse credibility
finding and affirm her determination that the respondent has not established
eligibility for a waiver of deportability under section 237(a)(1)(H) of the Act
or for asylum or withholding of removal. Accordingly, the respondent’s
appeal will be dismissed.
    ORDER: The appeal is dismissed.




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