BIA Construes Inadmissibility for Material Misrepresentation and Participation in Extrajudicial Killings

The Board of Immigration Appeals (BIA) has clarified the standard for when a misrepresentation is material, and thus, makes a non-citizen inadmissible.  The standard articulated is whether the misrepresentation tends to shut off a line of inquiry that is relevant to the non-citizen’s admissibility and that would predictably have disclosed other facts relevant to his or her eligibility for a visa, other documentation, or admission to the United States.  After the Department of Homeland Security (DHS) meets its burden of proof, the burden shifts to the non-citizen to establish that no proper determination of inadmissibility could have been made.

The BIA also crafted a standard for determining whether a non-citizen had assisted in the extrajudicial killings of others.  The court must consider (1) the nexus between the alien’s role, acts, or inaction, and the extrajudicial killing; and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing.  "[W]e look at whether the alien’s role was material or integral to the killing—or, as the DHS argues, whether the alien’s role 'contributed; to the ultimate harm. We also agree with the Ninth Circuit’s ruling that mere acquiescence or membership in an organization is insufficient to establish culpability."  Direct proof of actual knowledge is not required.  Instead, the non-citizen must have sufficient knowledge that the consequences of his actions may assist in acts of extrajudicial killing. The fact finder may look to direct or circumstantial evidence in the record to determine whether the alien had sufficient knowledge that his conduct may have assisted acts of extrajudicial killing.

The full text of Matter of D-R- can be found here: 

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

BIA Finds that Applicant for Fraud Waiver and Asylum has Burden to Prove he did not Participate in Genocide

The Department of Homeland Security presented expert testimony that the respondent served in a special police force during the Bosnian War, in an area of the country where large-scale genocide took place.  The applicant sought a fraud waiver under 237(a)(1)(H) and asylum-related relief.  The Board of Immigration Appeals held that given the expert testimony, the applicant had the burden of proving that the ineligibility bars for participating in extrajudicial killings and genocide did not apply.

The full text of Matter of M-B-C- can be found here:

https://www.justice.gov/file/967306/download

BIA Recognizes the Existence of Death Squads during Salvadoran Civil War; Strips Former Defense Minister of his Residence

Carlos Eugenio Vides Casanova served as the Director of the Salvadoran National Guard, and later as Minister of Defense during the Salvadoran Civil War.  The Department of Homeland Security alleged that he participated in acts of torture and extrajudicial killings during his tenure in these government positions.  The Immigration Judge agreed, finding that Mr. Vides assisted or otherwise participated in six well-known and documented instances of extrajudicial killing.  The judge also found that Mr. Vides to investigate the killings after the fact, to cooperate with the investigations (which he impeded), and to ultimately hold the accused perpetrators accountable.  The Board agree that these acts, when taken in context with Mr. Vides' role as a military commander, collectively amounted to assistance or participation in the killings.   The Board noted that the statute does not require the person to have taken personal action to promote or facilitate the alleged acts before or during their commission.  It is sufficient that he (1) had knowledge that his subordinates committed unlawful acts and (2) failed to take action to investigate those acts afterwards in a genuine effort to punish the perpetrators.  Mr. Vides, who affirmatively and knowingly shielded subordinates from the consequences of their acts and promoted a culture of tolerance for human rights abuses, fell within the ambit of the statute.

The full text of Matter of Vides Casanova can be found here: http://www.justice.gov/eoir/vll/intdec/vol26/3827.pdf