In re O.R.E.
| Decision Date | 21 July 2021 |
| Docket Number | Interim Decision #4023 |
| Citation | 28 I&N Dec. 330 |
| Parties | Matter of O-R-E-, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Immigration Judges and the Board lack the authority to recognize the equitable defense of laches in removal proceedings.
(2) The respondent's willful misrepresentations regarding his name, location of his residence, timing of his departure from Rwanda, and membership in political organizations on his Registration for Classification as Refugee (Form I-590) and supporting documents were "material" within the meaning of section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), and he is therefore removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2018).
(3) The evidence indicates that the respondent ordered, incited, assisted, or otherwise participated in the Rwandan genocide, and he did not produce sufficient countervailing evidence to demonstrate that he is not subject to the genocide bar at section 212(a)(3)(E)(ii) of the Act.
FOR RESPONDENT: Matthew Lytle Benson, Esquire, Cincinnati, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Colleen A. Peppard, Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and PETTY, Appellate Immigration Judges.
PETTY, Appellate Immigration Judge:
The respondent is a native and citizen of Rwanda who was admitted to the United States as a refugee in 1996. Believing the respondent to have misrepresented certain personal details which obscured his role in the 1994 Rwandan genocide, the Department of Homeland Security ("DHS") initiated removal proceedings against him in 2019. An Immigration Judge found the respondent removable because he was inadmissible at the time of entry, concluded that the respondent failed to establish eligibility for any form of relief or protection from removal, and ordered him removed to Rwanda. Discerning no error, we will dismiss the respondent's appeal.
The respondent fled Rwanda in the midst of the 1994 genocide. The civil war leading up to the genocide began in the early 1990s but was the culmination of decades of conflict. While the origin of the ethnic classification is subject to some dispute, the population of Rwanda has in recent times been divided into three ethnic groups: the Hutu, the Tutsi, and the Twa. Sixty years ago, the Hutu majority overthrew the Belgian-supported Tutsi monarchy and established a republic in Rwanda. Many Tutsis went into exile, including in Uganda, where the Rwandan Patriotic Front ("RPF") was established. The paramilitary arm of the RPF invaded Rwanda in 1990. Following a series of armed engagements, the 1993 Arusha Accords between the RPF and the Hutu-dominated National Republican Movement for Development (known by its French acronym, MRND), allowed the RPF to participate in Rwandan governance. This arrangement was disfavored by MRND hardliners, who sought to deny the RPF any role in government.
Ultimately, the hardliners split from the moderate MRND members who had supported the Arusha Accords. On April 6, 1994, a plane carrying the President of Rwanda and MRND leader Juvénal Habyarimana was shot down. The MRND hardliners immediately took control of the Rwandan Government and set up roadblocks in Kigali for the purpose of identifying Tutsis. The Rwandan Army—now under the control of the hardliners—fought the RPF, while a civil militia organized by the MRND, called the Interahamwe, committed genocide against the Tutsi civilian population. The genocide continued until July 1994, when the RPF secured a military victory over the MRND. By that time, between 750,000 and 1 million Rwandans had been killed, including three-quarters of Rwanda's Tutsi population. See generally Munyakazi v. Lynch, 829 F.3d 291, 293 (4th Cir. 2016) ().
The respondent was admitted to the United States as a refugee on June 18, 1996. In his Registration for Classification as Refugee (Form I-590), the respondent swore that he fled Rwanda with his wife on or about April 12, 1994, because his wife, who is Tutsi, was threatened by the Interahamwe. He claimed that his daughter, who was born on June 4, 1994, was born in Zaire. The Form I-590 asked the respondent to list "[p]olitical, professional or social organizations of which I am now or have been a member or with which I am now or have been affiliated since my 16th birthday." The form further instructed the respondent that if he was never "a member of any organization, state 'None.'" On his form, the respondent wrote "None." In the accompanying Biographic Information (Form G-325C), the respondent was asked to list all other names used. He wrote "Roger." InDecember 1997, the respondent applied for adjustment of status under section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b) (1994).
At approximately the same time, several individuals in Rwanda wrote to the State Department implicating the respondent in the genocide. But it was not until much later that the Government investigation began in earnest. Two Government officials traveled to Rwanda in September 2009 and spoke with 16 individuals over the course of 6 days, completing reports of investigation shortly thereafter. All of the individuals interviewed knew the respondent by a surname different from the one listed on his Form I-590, and all but two were able to identify him in a photo array. The majority of those interviewed also stated that the respondent was known as "President" or "Councillor"1 or was otherwise a leader of the local MRND or Interahamwe in the Gisozi sector of Kigali. One stated that he had known the respondent since childhood and that they were neighbors. This individual further stated that during the time he was a member of the Interahamwe, he took orders from the respondent consisting of lists of Tutsis to kill and was directed not to leave the bodies in the streets where they could be seen by cameras. Several noted that the respondent directed the murder of Tutsis at the St. Famille church, where ultimately over 150 people were killed. Investigators also spoke with the respondent's former spouse, who confirmed that the respondent was generally known by a surname different from the one listed in the Form I-590 and he was a member of the MRND. Another friend also confirmed the respondent was a member of the MRND.
While the respondent was present in the United States, a gacaca court2 proceeding was held in absentia in Rwanda concerning the respondent's conduct during the genocide. The respondent was accused of being and that "he was the one who would issue a list of those who were supposed to die." The court records reflect that it took testimony from numerous witnesses, and identified 12 individuals by name whom the respondent had a direct part in killing. The gacaca proceeding suggests that the respondent was a member of the MRND and affiliated with the Interahamwe militia during the genocide. In 2007, the gacaca court foundthe respondent guilty of "providing instructions on those who were supposed to die" and "supervising and controlling genocide," and sentenced him to 30 years' imprisonment. The Immigration Judge found, based on expert testimony, that because the respondent's conviction was in absentia, he would be entitled to a new trial should he return to Rwanda.
African Rights, a nongovernmental organization ("NGO"), issued a 30-page report detailing its own investigation into the respondent's conduct and concluded that he was the head of the MRND in the Gisozi sector, and that as head of the MRND he issued orders to Isaïe Ntirushwa, the head of the Interahamwe in Gisozi. African Rights claims to have interviewed over 20 eyewitnesses, including members of the Interahamwe who were armed by and took orders from the respondent. The report details the respondent's activities in organizing and arming the Interahamwe prior to April 6, 1994, and his activities on April 7, 1994, immediately following the assassination of President Habyarimana. Among other specific incidents, it reports that the respondent ordered the murder of Alfred Rutaysire, the leader of the Tutsis in Gisozi, as well as the torture of a man named Musonera. Later, the respondent ordered roadblocks to be put up, and instituted a "laissez-passer" permit system, which became "more important than the government's identity cards" in facilitating movement of Hutus through the roadblocks, while depriving others of freedom of movement.
On June 5, 2019, the DHS denied the respondent's application for adjustment of status and placed him in removal proceedings, charging him with being removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A) (2018), as an alien who was inadmissible at the time of entry under, among other provisions, section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), because of fraud or willful misrepresentation of material fact.3 The DHS later amended the factual allegations and lodged an additional charge that he was inadmissible at the time of entry under section 212(a)(7)(A)(i)(I) of the Act, as an immigrant not in possession of valid entry documents. He applied for asylum under section 208(b)(1)(A) of the Act, 8 U.S.C. § 1158(b)(1)(A) (2018), withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2018), and protection under the regulations implementing 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) ...
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