On January 9, the Board of Immigration Appeals (BIA) — the administrative tribunal that reviews decisions in removal cases — issued an opinion in Matter of M-C-C-. It held that a Bosnian national and green card holder who failed to disclose his service in the military arm of the Republic of Srpska during the infamous 1995 “Srebrenica massacre” when seeking derivative refugee status did not merit a fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (INA). Expect that opinion to guide the BIA’s consideration of the pending appeal of Columbia University “activist” Mahmoud Khalil.
The Yugoslav Civil War
Many younger people may not be familiar with the civil wars that broke out as the former Yugoslavia dissolved in the 1990s, but they were front-page news at the time, due to three factors: (1) it was the first major European conflict since World War II; (2) the savagery that marked those conflicts; and (3) the ultimate American intervention, which was triggered by the Srebrenica massacre itself.
The Kingdom of Yugoslavia was created at the end of World War I in 1918, an agglomeration of, among others, Catholic Croat, Orthodox Serb, and Muslim Bosnian (Bosniak) territories — three nationalities with a long history of animosity.
Following the end of German occupation during World War II in 1945, a new “Socialist Federal People’s Republic of Yugoslavia” consisting of Serbia, Macedonia, Montenegro, Bosnia and Herzegovina, Croatia, and Slovenia was created under the leadership of strongman Josip Broz “Tito”, a communist who quickly broke free of Moscow’s control.
Tito died in May 1980 and the collective presidency that replaced him managed to keep nationalist and sectarian tensions under wraps for another decade, but things quickly devolved after government troops violently broke up anti-communist riots in Belgrade, the national capital, in March 1991.
Croatia and Slovenia seceded that June as communism collapsed in Eastern Europe, and shortly thereafter federal troops rolled into the former states to force the country to remain together.
Bosnia-Herzegovina seceded from Yugoslavia thereafter, and the subsequent war there was uniquely violent because, unlike the fairly homogenous other Yugoslav regions, it had a multiethnic population of Bosniaks, Serbs, and Croats, each considered their own “national community”.
After December 1991 elections in the country that split representation roughly along those ethnic and religious lines, “Serb Autonomous Regions” sprung up in Bosnia-Herzegovina, amidst allegations that the (largely Serbian) Yugoslav People’s Army was secretly sending arms to Bosnian Serbs.
The Republic of Srpska was declared by the Bosnian Serb assembly in January 1992 as an independent “Republic of the Serb people of Bosnia and Herzegovina”, a precipitating factor in the conflict that followed.
Bosniak Alija Izetbegović, the elected president of Bosnia-Herzegovina, declared independence in March 1992. After the United States and the then-European Community recognized the country a month later, paramilitary units of Bosnian Serbs began firing on Sarajevo, soon joined by Bosnian Serb units in the Yugoslav army.
The Bosnian Serbs expelled Bosniaks from towns and cities in the east of the country bordering Serbia, the largest remaining Yugoslav state, and in a short time two-thirds of the country was under Serbian control.
The war dragged on, and in 1994 NATO declared a (questionably effective) no-fly zone over the country. The UN declared various “safe areas” but failed to adequately protect them or to stop what became known as the “Srebrenica massacre”. As the organization later admitted:
In July 1995, the Bosnian Serb army overran Srebrenica — previously declared a safe area under UN Security Council Resolution 819 — and brutally murdered thousands of men and teenagers there. The remainder of the Bosnian Muslim population present in Srebrenica — approximately 25,000 women, children and elderly — were forcibly transferred out of the enclave.
Somewhere between 7,000 and 8,000 Bosniak men and boys were slaughtered, to be exact, prompting NATO to send in 60,000 troops (a third of them Americans) to stop the killings in July 1995.
At that point, the Bosnian Serb army’s days were numbered, and four months later, the parties met at Wright-Patterson Air Force Base in Ohio to sign what have become known as the “Dayton Accords”, ending the conflict and defining the borders of Bosnia-Herzegovina.
Nonetheless, today the state of Bosnia and Herzegovina is made up of two political entities — the Republic of Srpska and the Federation of Bosnia-Herzegovina.
As William Faulkner explained in his 1951 novel, Requiem for a Nun: “The past is never dead. It’s not even past. All of us labor in webs spun long before we were born, webs of heredity and environment, of desire and consequence, of history and eternity.” Bosnia-Herzegovina is Exhibit A.
Deportability for Willful Misrepresentation During Entry or Adjustment
The Republic of Srpska’s official military during this conflict was known as the Vojna Republika Srpska (“VRS”) and, as the BIA made clear, it played a major role in the Srebrenica massacre.
M-C-C-, however, failed to disclose his service in the VRS when he entered the United States in 1998 as a derivative beneficiary on his wife’s refugee application, or on his 2001 application for adjustment of status. He also failed to disclose his Bosnian residency when he sought derivative refugee status.
Under section 212(a)(6)(C)(i) of the INA, “Any alien who, by ... willfully misrepresenting a material fact, seeks to procure (or has ... procured) a visa ... or other benefit provided under this chapter is inadmissible.”
Both refugee status and lawful permanent resident status (a “green card”) are “benefits provided” under the INA, and omission of material facts on either application can constitute a “willful misrepresentation” (rendering the alien inadmissible) if it’s “clear from the evidence that the alien consciously concealed information”.
But Congress knew DHS can’t always catch misrepresentations and omissions before granting benefits, and consequently section 237(a)(1)(A) of the INA renders deportable aliens who were inadmissible “at the time of entry or adjustment of status”, including due to fraud or willful misrepresentation under section 212(a)(6)(C)(i).
After DHS discovered M-C-C-‘s omissions, it placed him into removal proceedings, eventually settling on two key nondisclosures as the factual basis for its section 237(a)(1)(A) charge: “(1) his VRS service during the Bosnian War, including during the 1995 Srebrenica massacre; and (2) his residence in Bosnia at the time he completed his derivative refugee forms.”
M-C-C- couldn’t deny his service, but contended he only served in a rear trench, never had any contact with Bosniaks, and didn’t know about the Srebrenica massacre until after the fact.
The extent of his involvement still isn’t clear, but the BIA concluded that it doesn’t make any difference, affirming the immigration judge’s finding that M-C-C- was removable as charged in part because:
an admission of military service would open a line of inquiry about the nature of that military service and that such additional inquiry could lead to a variety of outcomes, from finding that no bar [to refugee status] applied to an affirmative finding that the applicant engaged in persecution, extrajudicial killing, or genocide. The omission of such service thus cuts off a line of inquiry that predictably would have disclosed relevant facts.
That was not the end of the immigration judge’s findings or the BIA’s analysis, however.
As the Board noted, once the government shows an alien’s omissions cut off a line of inquiry, the burden “shifts to the alien to establish that no proper determination of inadmissibility could have been made”, a burden M-C-C- failed to carry.
The “Fraud” Waiver
Because he was found to be deportable on that ground, M-C-C- applied for a “fraud” waiver under section 237(a)(1)(H) of the INA. That section of the act states, in pertinent part:
The provisions of [section 237(a)(1) of the INA] relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in [section 212(a)(6)(C)(i) of the INA], whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in [section 237(a)(4)(D) of the INA] who-
(i)(I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under sections 1182(a)(5)(A) and (7)(A) of the INA] which were a direct result of that fraud or misrepresentation. [Emphasis added.]
The BIA passed on DHS’s argument that M-C-C- was not statutorily eligible for a fraud waiver, focusing instead on his failure to show he merited that waiver in the exercise of the court’s discretion.
As the BIA explained in its 1998 opinion in Matter of Tijam, when exercising discretion adjudicators must balance the “alien’s undesirability as a permanent resident with the social and humane considerations present to determine whether a grant of relief is in the best interests of this country”. In making that assessment, no relevant factor is off the table, including underlying misrepresentations.
The immigration judge granted M-C-C-‘s fraud waiver, but the BIA reversed, concluding that the adverse factors — including his “numerous misrepresentations about his VRS service and wartime residency” on his derivative refugee and adjustment applications, the former “under oath”, and “over many years” and in “numerous forums” — were significant.
That M-C-C- “invoked his Fifth Amendment right against self-incrimination during his testimony” about his “applications and the process in which” his benefits were acquired didn’t help either.
As the Supreme Court explained in 1923, “there is no rule of law which prohibits officers charged with the administration of the immigration law from drawing an inference from the silence of one who is called upon to speak. Deportation proceedings are civil in their nature.” And that’s what the BIA did.
Contrition would have likely advanced M-C-C-‘s cause, but the immigration judge “did not find that the respondent was remorseful”. That was a choice he made, and a gamble that failed to pay off.
M-C-C- is now elderly, has lived here for decades, and his family is here. Those positive discretionary factors, the BIA concluded, did not outweigh all the negative ones in his case. Accordingly, the Board ordered him removed to Bosnia-Herzegovina.
Mahmoud Khalil
There are faint echoes of Matter of M-C-C- in the Khalil case.
While M-C-C- came as a derivative refugee and Khalil as an F-1 nonimmigrant student, each adjusted status to green-card holder while here, and DHS alleged each failed to disclose material facts while seeking their immigration benefits.
Even before a federal judge in New Jersey blocked the department from seeking Khalil’s removal on its original foreign policy ground, DHS had lodged a second charge alleging he was removable under section 237(a)(1)(A) of the INA for having failed to “disclose certain information” when he applied for his green card.
Specifically, ICE claimed Khalil had failed to mention he’d been a “political affairs officer for the United Nations Relief and Works Agency for Palestine Refugees” (UNWRA) and had previously been employed “as a program manager by the Syria Office in the British Embassy in Beirut”.
The New Jersey judge did not interpose himself in that determination (the Third Circuit later found he had improperly done so on a number of other issues), but he did send the removal case back to the immigration court to determine whether Khalil was eligible for a fraud waiver.
Dutifully, on September 12, the immigration judge issued a decision denying that waiver and ordering Khalil removed under section 237(a)(1)(A) of the INA.
Khalil filed a timely appeal from the immigration judge’s decision to the BIA on October 9, which the BIA accepted on October 14. The Third Circuit order referenced above, which was issued on January 15, clears the way for the Board to consider that appeal.
The Pending Decision
The BIA’s opinion in Matter of M-C-C- didn’t break new ground; it was simply a compendium of prior precedent opinions, restated in a more “user-friendly” form. Don’t be surprised, however, if it doesn’t guide the Board’s consideration of the appeal filed by Columbia University “activist” Mahmoud Khalil.