Vladimir Maric v. Jefferson B. Sessions, III

United States Court of Appeals
For the Eighth Circuit
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No. 15-3835
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Vladimir Maric
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III,1 Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: December 14, 2016
Filed: April 18, 2017
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Before LOKEN, MURPHY, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Vladimir Maric is a citizen of Bosnia and Herzegovina, part of the former
Yugoslavia, who was admitted into the United States as a refugee with his wife and
two children in September 1999 and became a lawful permanent resident in 2001.
1
Jefferson B. Sessions, III, has been appointed to serve as Attorney General of
the United States and is substituted as respondent. See Fed. R. App. P. 43(c).
The Department of Homeland Security (“DHS”) commenced removal proceedings in
January 2011, charging that Maric obtained immigration benefits by fraud or willful
misrepresentation of a material fact. See 8 U.S.C. § 1182(a)(6)(C)(i). After a
hearing, the Immigration Judge (“IJ”) found Maric removable because, at the time of
his admittance and adjustment of status, he concealed that he had served in the Army
of the Serb Republic, Vojska Republika Srpske (“VRS”), from January 2, 1995 to
January 27, 1996, a period that encompassed the July 1995 massacre of thousands of
Bosnian Muslim prisoners in Srebrenica, Bosnia and Herzegovina. Maric applied for
a discretionary waiver of deportation under 8 U.S.C. § 1227(a)(1)(H). The IJ found
Maric ineligible for this relief because he failed to prove he is not an alien who
“committed . . . assisted, or otherwise participated in” extrajudicial killings under
color of law of any foreign nation. 8 U.S.C. § 1182(a)(3)(E)(iii). The Board of
Immigration Appeals (“BIA”) affirmed. Maric petitions for review, arguing the BIA
erred by not requiring the government to prove by clear and convincing evidence that
he was inadmissible under § 1182(a)(3)(E). We deny the petition for review.
1. Section 212(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a), lists classes of aliens who are “ineligible for visas or admission.” Class
3 encompasses “[s]ecurity and related grounds,” which include an alien who has
committed or participated in extrajudicial killings. See § 1182(a)(3)(E)(iii). Class
6 is entitled “[i]llegal entrants” and includes those who obtain immigration benefits
by fraud or material misrepresentation. See § 1182(a)(6)(C)(i). A “material”
misrepresentation is one that has “a natural tendency to influence the decisions” of
the DHS. Matter of D-R-, 25 I. & N. Dec. 445, 450 (BIA 2011).
Section 237(a) of the INA, 8 U.S.C. § 1227(a), lists classes of removable
aliens. An alien who was inadmissible at the time of entry or adjustment of status is
removable. §1227(a)(1)(A). This category includes an alien who was inadmissible
for fraud or material misrepresentation under § 1182(a)(6)(C)(i). However, an alien
removable for this reason may be eligible for a discretionary waiver of removal if he
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meets the criteria in § 1227(a)(1)(H), unless he is “an alien described in paragraph
(4)(D),” a cross reference to § 1227(a)(4)(D). Section 1227(a)(4)(D) in turn cross
references § 1182(a)(3)(E)(iii). Thus, an alien who has participated in extrajudicial
killings under color of law of a foreign nation is ineligible for this waiver of removal.
The Attorney General’s regulations provide that DHS must prove that an alien
is removable by clear and convincing evidence. See 8 C.F.R. § 1240.8(a). But an
alien applying for a waiver of removal under § 1227(a)(1)(H) “has the burden of
proof to establish that . . . [he] satisfies the applicable eligibility requirements.” 8
U.S.C. § 1229a(c)(4)(A). “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.” 8 C.F.R. § 1240.8(d).
2. At the hearing, Michael MacQueen, a senior historian in DHS’s Human
Rights Division, testified that the VRS and other forces participated in a coordinated
killing operation at Srebrenica in July 1995. The IJ found that Maric’s failure to
disclose his service in the VRS at this time was a material misrepresentation under
§ 1182(a)(6)(C)(i), making Maric removable under § 1227(a)(1)(A).2 Maric
requested a waiver under § 1227(a)(1)(H). DHS presented evidence that Maric may
have participated in the atrocities at Srebrenica. VRS enrollment and attendance
records list Vladimir Maric, with the correct birth date, as carrying out combatant
assignments for the Sixth Battalion, Third Company, of the Zvornik Brigade
throughout most of the month of July 1995. MacQueen also testified that records of
the International Criminal Tribunal for the former Yugoslavia establish that members
of the Sixth Battalion were housed during this time at a school building in Petkovci.
On July 14, the VRS detained around 1,000 Bosnian Muslim men and boys captured
2
Maric did not appeal the finding he is removable to the BIA or in his petition
for review to this court.
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while fleeing the area. Members of the Sixth Battalion removed prisoners from the
school building on July 15 to a nearby dam, executed them by automatic rifle, and
buried them in mass graves.
Maric testified that he was forcibly conscripted by the VRS in January 1995.
In July, he was on active duty only on July 22, when the VRS removed him from a
marketplace, provided him with an old military uniform and a gun, and bused him to
Petkovci. He walked to Bajkovica and was told to sit and watch the trenches. He saw
unarmed men crossing a bridge, but did not observe any shooting or dead bodies. He
provided two documents relating to his military service, a September 1994 certificate
of exemption showing he was previously exempt from the draft for medical reasons,
and a certificate of conscription demonstrating service in the Zvornik Brigade from
January 2 to April 4, 1995.
Based on this evidence, the IJ found that Maric may have participated in the
atrocities at Srebrenica, “extrajudicial killings” that would make him ineligible for a
waiver of removal under 8 U.S.C. §§ 1227(a)(4)(D) and 1182(a)(3)(E)(iii). Placing
the burden on Maric to prove by a preponderance of the evidence that grounds for
mandatory denial of a waiver did not apply, the IJ denied Maric’s request for a waiver
of removal, finding that his testimony regarding his limited military service was not
credible and the documents he submitted did not relate to his involvement with the
Zvornik Brigade in July 1995.
Maric appealed to the BIA, arguing that the IJ erred in not requiring DHS to
prove by clear and convincing evidence that he participated in the Srebrenica
massacre and therefore was inadmissible under § 1182(a)(3)(E)(iii), the burden of
proof placed on DHS in Matter of D-R-. The BIA rejected this contention. The issue
in Maric’s case “is not comparable,” the BIA explained, because in Matter of D-R-,
the DHS proved by clear and convincing evidence that respondent was removable
because he participated in extrajudicial killings. Here, DHS did not charge that Maric
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was removable because he was inadmissible under § 1182(a)(3)(E). Rather, DHS
proved by clear and convincing evidence that Maric was removable because he was
inadmissible under § 1182(a)(6)(C)(i) for willful misrepresentation of a material fact,
and thus the issue was whether he was eligible for waiver relief from that removal
under § 1227(a)(1)(H). As the BIA explained, when the IJ found that the
government’s evidence “indicates that one or more of the grounds for mandatory
denial of the application for relief may apply,” the IJ correctly applied 8 C.F.R.
§ 1240.8(d) and placed on Maric the burden to prove he is eligible for waiver relief
by a preponderance of the evidence.
3. On appeal, Maric again argues that the BIA and the IJ erred in not requiring
DHS to prove by clear and convincing evidence that he was inadmissible and
therefore removable because he participated in the extrajudicial killings at Srebrenica.
“We review the BIA’s legal determinations de novo, but we accord substantial
deference to the BIA’s interpretation of the statutes and regulations it administers.”
Godfrey v. Lynch, 811 F.3d 1013, 1017 (8th Cir. 2016) (quotation omitted).
Like the BIA, we conclude that Maric’s argument is contrary to the plain
language of the governing statutes and regulation. By statute, the discretionary
waiver of removal Maric seeks under § 1227(a)(1)(H) is available only if (i) he is
removable because he was inadmissible for fraud or material misrepresentation under
§ 1182(a)(6)(C)(i), and (ii) he is not “an alien described in” § 1227(a)(4)(D).
Consistent with the governing regulation, the IJ’s finding that DHS presented
evidence that “indicates” Maric may have participated in the extrajudicial killings at
Srebrenica placed on Maric the burden to prove by a preponderance of the evidence
that the statutory bar in § 1182(a)(3)(E)(iii) did not apply. See 8 C.F.R. § 1240.8(d).
Maric objects that shifting the burden of proof to him based solely on evidence that
“indicates” potential inadmissibility opens a government “backdoor” to find aliens
inadmissible and therefore removable without sufficient evidence. But the issue in
this case is not removability, it is Maric’s eligibility for relief from being removed
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because he willfully misrepresented material facts in obtaining immigration benefits.
“While the government bears the burden to prove the alien is deportable or
removable, it is the alien’s burden . . . to prove he is eligible for cancellation of
removal.” Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir. 2016).
Maric concedes that he is removable for willful misrepresentation and that
DHS’s evidence “indicates” that he may have participated or assisted in the
extrajudicial killings at Srebrenica in July 1995. In these circumstances, the BIA
properly placed on Maric the burden to prove that the statutory bar to waiver relief
in 8 U.S.C. § 1182(a)(3)(E)(iii) did not apply. Accordingly, we deny the petition for
review. We lack jurisdiction to grant Maric’s request for voluntary departure. See
8 U.S.C. § 1229c.
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