Matter of D-R

CourtU.S. Board of Tax Appeals
Writing for the CourtMALPHRUS
Citation25 I&N Dec. 445
Decision Date06 April 2011
PartiesMatter of D-R-, Respondent

25 I&N Dec. 445

Matter of D-R-, Respondent

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

Decided April 6, 2011

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

(1) The respondent's deliberate omission from his refugee application that he was a special police officer during the Bosnian War, during which time he served in an entity that was part of the Armed Forces of the Republic of Srpska, could have affected or influenced the Government's decision whether to grant him refugee status and was therefore a willful misrepresentation of a material fact.

(2) The respondent is removable under section 237(a)(4)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4)(D) (2006), where the totality of the record supported the conclusion that he assisted in the extrajudicial killing of 200 Bosnian Muslims that his unit was involved in capturing, including evidence of his command responsibility, his presence, his platoon's active participation, and the finding that he must have been aware that many other Bosnian Muslims who were similarly situated had been executed nearby several days earlier.

(3) An Immigration Judge may make reasonable inferences from direct and circumstantial evidence in the record as a whole and is not required to accept a respondent's account where other plausible views of the evidence are supported by the record.

(4) An expert witness is broadly defined as one who is qualified as an expert by knowledge, skill, experience, training, or education and who has specialized knowledge that will assist the Immigration Judge to understand the evidence or to determine a fact in issue.

FOR RESPONDENT: Richard A. Kulics, Esquire, Las Vegas, Nevada

FOR THE DEPARTMENT OF HOMELAND SECURITY: Charles W. Baccus, Assistant Chief Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

MALPHRUS, Board Member:

The respondent, a native and citizen of Bosnia and Herzegovina and lawful permanent resident of the United States, has appealed from a written decision of the Immigration Judge, dated November 24, 2009, finding the respondent removable based on conduct arising out of his service as a special police officer during the Bosnian War and ordering him removed from the United States to Bosnia and Herzegovina. The Immigration Judge found that

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the respondent's omission from his refugee application that he had served as a special police officer constituted a willful misrepresentation of a material fact, which rendered him removable under section 237(a)(1)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was inadmissible at the time of entry under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006). The Immigration Judge also concluded that the Department of Homeland Security ("DHS") had proven by clear and convincing evidence that the respondent "assisted, or otherwise participated" in an extrajudicial killing and is therefore removable under section 237(a)(4)(D) of the Act. Consequently, the Immigration Judge ordered the respondent removed from the United States.

The respondent argues that his omission from the refugee application was not a material misrepresentation and that the Immigration Judge engaged in impermissible speculation to conclude that he assisted in an extrajudicial killing. He also argues that he was denied a fair hearing because counsel in the proceedings below did not object to the DHS's documentary evidence and testimony, and he makes other arguments that he claims warrant a remand or termination of proceedings. The DHS has filed a brief in opposition to the appeal. The appeal will be sustained in part and dismissed in part, and the record will be remanded for further proceedings.

We review the findings of fact made by the Immigration Judge to determine whether they are "clearly erroneous." 8 C.F.R. § 1003.1(d)(3)(i) (2010); see also Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). We review de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii); see also Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).


The Bosnian War was a civil conflict arising from the dissolution of the former Yugoslavia. It was fought from 1991 to 1995 between the ethnic Serb-dominated Republic of Srpska and the Federation of Bosnia-Herzegovina, which was dominated by Bosnian Muslims. Prior to the war, the respondent served as a police officer for 21 years in the Republic of Srpska, where he specialized in training dogs to search for drugs and criminals. During the civil war, consistent with the Republic of Srpska Constitution, the Republic of Srpska Ministry of Internal Affairs police force, known as the "MUP," became part of the Armed Forces of the Republic of Srpska.

During this time, the respondent was employed as a special police officer, and in the summer of 1995, he was assigned to the Special Police Brigade at the Ministry of Internal Affairs' Jahorina Training Center, which was overseen by Dusko Jevic. While there, the respondent served as the leader

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of the third platoon in the 2nd Company of the Training Center, where about 25 special police officers served under his command. His duties included being a dog training instructor and training police officers to secure or guard roads and regulate traffic. The respondent's platoon and two others were under the command of Nedjo Ikonic.

One of the final major events of the war concerned what became known as the Srebrenica massacre, where, in July 1995, the Serbian forces took control of a United Nations safe area in eastern Bosnia and, over the course of 1 week, executed between 5,000 and 7,000 Bosnian Muslim men and boys. To prove its case, the DHS presented expert testimony and documents from the United Nations International Criminal Tribunal for the Former Yugoslavia at The Hague ("ICTY") and the Bosnian War Crimes Tribunal.

The documentary evidence, which the Immigration Judge found to be relevant and probative, included State Department reports, findings from ICTY trial judgments, and copies of real-time dispatch reports from field officers during the war that were seized by the ICTY after the war. It also included a 5-minute video compiled by the prosecutor for the ICTY as part of the proceedings in the prosecution of Vidoje Blagojevic and Dragan Jokic and photographic images from a video taken by an independent Belgrade filmmaker, both of which primarily showed captured Bosnian Muslims along the Bratunac-Konjevic Polje road on July 13, 1995. See Prosecutor v. Vidoje Blagojevic and Dragan Jokic, Case No. IT-02-60-T, Trial Judgement (Int'l Crim. Trib. for the Former Yugoslavia Jan. 17, 2005),^okic/tjug/en/bla-050117e.pdf.

The record also included MUP records showing the respondent's service with the Special Police Brigade during the war. Richard Butler, a criminal research specialist with the DHS who formerly worked as a military analyst for the ICTY, testified on military operations that occurred in Eastern Bosnia from 1992 to 1995, including those specifically related to the Srebrenica massacre. The Immigration Judge found his expert testimony to be credible and persuasive.

The testimony and evidence showed that as the Serbian Army overtook Srebrenica and Bosnian Muslims fled the area, thousands were executed. See, e.g., Prosecutor v. Radislav Kristic, Case No. IT-98-33-T, Trial Judgement (Int'l Crim. Trib. for the Former Yugoslavia Aug. 2, 2001), [hereinafter ICTY Kristic Trial Judgement] ("As thousands of them attempted to flee the area, they were taken prisoner, detained in brutal conditions and then executed."). Butler testified that when the Serbian Army overtook Srebrenica, the Commander of the Jahorina Training Center received an urgent message to secure the Bratunac-Konjevic Polje road between Konjevic Polje and the village of Kravika, a key escape route through the rugged mountainous terrain for fleeing Bosnian Muslims. Butler explained that the respondent's platoon,

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along with others from the Training Center, arrived on the road on July 12 and stayed until at least July 19. During that week, they did not leave the area and even slept outdoors.

While there, the respondent's platoon and others secured or guarded segments of the road and conducted joint "sweep" operations with Army troops and other special police in the surrounding mountainous area to secure the road and nearby area from escaping Bosnian Muslims. Butler's testimony referenced a real-time field report in evidence, which stated that "two MUP companies [including] part of the forces for the Dog Breeding and Training Center [led by the respondent] have sealed off the area and are fighting the remaining Muslim forces from Srebrenica." Butler also testified that between July 12 and July 18, 1995, many Bosnian Muslims surrendered or were captured along various segments of this road and that field communications showed that the MUP were almost entirely responsible for securing the road.

On the morning of July 13, 1995, a total of about 1,000 Bosnian Muslim men and boys (as young as age 15) surrendered on different points of the Bratunac-Konjevic Polje road, including in the area of Sandici-Novici, which is the area of the road where the respondent testified that he and his platoon were stationed. Evidence showed Bosnian Muslims being induced to come out of the rough terrain by promises of food and water and humane treatment. Those who surrendered were taken to a warehouse in the village of Kravica, traveling in a convoy of dozens of trucks and buses on the Bratunac-Konjevic Polje road that the respondent and his men helped...

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