U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike, Suite 2000 /<"alls Church, Virginia 20530

Marshal E. Hyman 3250 W. Big Beaver Road, Suite 529 Troy, Ml 48084

OHS/ICE Office of Chief Counsel - ORL 3535 Lawton Road, Suite 100 Orlando, FL 32803

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Name: S

54

Date of this notice: 3/27/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DcnrtL ct1AA)
Donna Carr Chief Clerk

Enclosure
Panel Members; Pauley, Roger Wendtland, Linda S. Donovan, Teresa L.

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014)

U.S.

Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia

20530

File:

- 454 - Orlando, FL

Date:

Mt\R 3 7 2014

In re:B-

IN REMOYAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: Marshal E. Hyman, Esquire ON BEHALF OF DHS:

CHARGE: Notice: Sec. 237(a)( l )(A), I&N Act [8 U.S.C. 1227(a)(l )(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(6)(C)(i), I&N Act [8 U.S.C. 1182(a)(6)(C)(i)] - Fraud or willful misrepresentation of material fact (conceded) 237(a)(l )(A), I&N Act [8 U.S.C. 1227(a)( l )(A)] Inadmissible at time of entry or adjustment of status under section 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] - Immigrant no valid immigrant visa or entry document (conceded)

Sec.

APPLICATION: Waiver of deportability under.section 237(a)( l )(H)

The Department of Homeland Security (DHS) appeals from the Immigration Judge's September 17, 2010, decision granting the respondent's waiver of deportability under section 237(a)( l )(H) of the Immigration and Nationality Act (Act), 8 U.S.C. 1227(a)( l )(H). The DHS request for oral argument is denied. See 8 C.F.R. 1003.l(e)(7). The DHS appeal will be dismissed and the record will be remanded for further proceedings consistent with this decision. We review findings of fact, including credibility findings, for clear error. See 8 C.F.R. 1003.l (d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues de nova. See 8 C.F.R. I003. l(d)(3)(ii). The Immigration Judge made the following, uncontested factual findings. The respondent, a native and citizen of Bosnia and Herzegovina, served in the Army of the Republic (YRS), or the Ser during the civil war in he former Yugoslavia from 992 t 1996 (I.J. at 2, 5-6, 9, 11, Tr. at 57-73, 146-47, 150, 153, 155-64, 186-89, 192, 209, 218-19, 225-26; Exhs. 6I, 7J). During his time in the YRS, the respondent

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54

served in the Zvornick Infantry Brigade, including spending time in the Zvornick Infantry Brigade's 4th Infantry Battalion (I.J. at 7, 10, 12-13; Tr. at 57-73, 186, 209; Exh. 8). The 4th Infantry Battalion was a YRS battalfon involved in the Srebrenica Massacre, an act of genocide involving thousands of Bosnian Muslims occurring in July 1995 (I.J. at 8; Tr. at 37-53, 254-55, 258; Exh. 8). Although the 4th Infantry Battalion was involved in the massacre, the DHS expert witness confirmed that the government did not possess any evidence establishing that the respondent was directly involved in the event (I.J. at 14; Tr. at 256-59). 1999, the respondent applied to enter the United States as a refugee, although On his YRS participation on his refugee application or during a related interview he did with United States immigration authorities (I.J. at 2, 10-11; Tr. at 165-69, 175-76, 184, 200, 206; Exhs. 3A-B, 7M-O). In addition, the respondent also claimed on the application that he fled to Serbia in 1992, although he acknowledged during his testimony that he remained in Bosnia e entirety of the civil war (I.J. at 10-11; Tr. at 199-200; Exhs. 3A-B, 7M, 70). Then, on 9, he entered the United States as a refugee (I.J. at 2; Tr. at 169-70; Exhs. 3D, 7P-Q). 2000, he filed an Application for Adjustment of Status (Form I-485), based on his admission as a refugee, and on the application he did not disclose his former military service (l.J. at 2, 11; Tr. at 170, 201 Exhs. 3A-B). The respondent's status was adjusted to that of a 2001 (I.J. at 2; Exh. 3F). The respondent acknowledged lawful permanent resident on that he lied on his refugee application because he had heard from other applicants that he would be ineligible for refugee status and that he later failed to disclose his military service on his adjustment application because he feared being deported from the United States (I.J. at 11, 21; Tr. at 165-68, 184-85; Exhs. 3A-B, 3F).

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Based on the foregoing, and in fully crediting all of the witnesses' testimony, the Immigration Judge concluded that the respondent was statutorily eligible for a waiver of deportability under section 237(a)(l)(H) of the Act because (1) his lawful permanent resident wife is a qualifying relative and (2) the record evidence did not establish that the respondent was involved in the Srebrenica Massacre (I.J. at 14-20). In addition, the Immigration Judge concluded that the respondent's positive equities outweighed any negative factors presented in this case such that the respondent merits the waiver in the exercise of discretion (I.J. at 20-24). On appeal, the DHS maintains that the respondent is not statutorily eligible for the waiver because he did not establish by a preponderance of the evidence that he was not involved in genocide or extrajudicial killing, particularly where, as here, his service in the 4th Infantry Battalion for the Zvornick Infantry of the YRS raises concerns regarding his possible involvement in the Srebrenica Massacre (DHS Brief at 3, 13-18). See section 237(a)( l )(H) of the Act (explaining that an alien's fraud in obtaining admission may generally be waived except where he has participated in Nazi persecution, genocide, or any act of torture or extrajudicial killing as described at sections 212(a)(3)(E)(i)-(iii), 8 U.S.C. 1182(a)(3)(E)(i)-(iii), and section 237(a)(4)(D) of the Act). In addition, the DHS maintains that the respondent is not otherwise statutorily eligible for the waiver as he does not have a qualifying relative (DHS Brief at 3, 8-13). Specifically, the DHS maintains that because the respondent's wife derived her refugee status, and ultimately her lawful permanent residence, based on the respondent's refugee claim in which he failed to disclose his prior military service, she was not "lawfully admitted for permanent residence" as required by section 237(a)( l )(H) of the Act (DHS Brief at 8-9). Finally,

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454

the DHS maintains that the respondent does not merit relief in the exercise of discretion (DHS Brief at 3, 18-20). The respondent maintains that, with respect to the issue of his alleged involvement in genocide or extrajudicial killing, the DHS failed to properly preserve this issue below, such that we should now deem any related arguments waived (Resp. Brief at 9-10). He explains that although the DHS raised concerns regarding his VRS membership in the context of the discretionary analysis, the agency did not make any assertions regarding statutory bars stemming from his military service (Resp. Brief at 9-10). Moreover, he maintains that the Immigration Judge properly found that the respondent credibly established the nature and scope of his military service in concluding that the respondent is statutorily eligible for and discretionarily deserving of relief (Resp. Brief at 9-15). Regarding the qualifying relative issue, the respondent asserts that his wife so qualifies as she remains a lawful permanent resident whose status has not been terminated, and thus, the DHS arguments are essentially an improper collateral attack on her status (Resp. Brief at 5, 8-9). Alternatively, he maintains that, to the extent that his wife does not qualify, the respondent's United States citizen sons are qualifying relatives for his waiver application (Resp. Brief at 7-8). Finally, he asserts that, contrary to the DHS arguments on appeal, the Immigration Judge correctly concluded that his positive equities outweigh the negative considerations in establishing that he merits relief in the exercise of discretion (Resp. Brief at 16-17). Starting with the issue of statutory bars stemming from the respondent's military service, we agree with the respondent that the DHS did not raise the issue below. Therefore, we conclude that the related arguments have been waived. See Matter ofJ-Y-C-, supra, at 261 n.1. Moreover, as further explained in this decision, we discern no clear error in the Immigration Judge's factual findings regarding the extent of the respondent's VRS military service and duties, and thus, we conclude that the respondent has carried his burden of proof in establishing he is not statutorily barred from pursuing a waiver under section 237(a)(l )(H) of the Act. We also conclude that we need not resolve the DHS's challenges regarding whether the respondent's wife may serve as a qualifying relative (DHS Brief at 3, 8-13). Instead, we agree with the respondent that under the plain language of section 237(a)(l )(H) of the Act, his United States citizen sons may serve as qualifying relatives for his waiver (Resp. Brief at 7-8). See section 237(a)(l )(H)(i)(I) of the Act (defining an eligible waiver applicant as the spouse, parent, son, or daughter of a United States citizen or alien lawfully admitted for lawful permanent residence); see also section 10l(b)(2) of the Act, 8 U.S.C. 110l (b)(2), (defining the terms "parent," "mother," and "father," but not limiting the definition of a parent to one with an unmarried minor child under the age of 21) ; compare with section 101(b)(1) of the Act (limiting the definition of a "child" to one who is under the age of 21 and unmarried). Moreover, because an applicant for a waiver under section 237(a)( l )(H) of the Act need only establish that he has a qualifying relative, and not that this relative will experience any specific level of hardship, we need not remand the record here despite the fact that the Immigration Judge did not consider the respondent's sons as qualifying relatives. Instead, we simply note that the respondent is statutorily eligible for relief by virtue of the fact that he is the father of two United States citizen sons.

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Finally, with respect to the issue of discretion, we must balance the evidence of the respondent'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 the country. See Matter ofTijam, 22 I&N Dec. 408, 412 (BIA 1998). Adverse factors may include the nature and underlying circumstances of the fraud or misrepresentation involved; the nature, seriousness, and recency of any criminal record; and any other additional evidence of the respondent's bad character or undesirability as a lawful permanent resident of the United States. See id. Favorable considerations may include family ties in the United States; residence of long duration in this country, particularly when commenced at a young age; evidence of hardship to the alien or his family should removal occur; stable employment history, the existence of property or business ties; evidence of value and service to the community; and other evidence of the alien's good character. See id. at 412-13. Here, the respondent adduced significant favorable factors, including his residence in the United States since 1999 and his family ties in this country, including his lawful permanent resident wife of more than 30 years, and his two sons, daughter-in-law, and two grandchildren, all of whom are United States citizens (I.J. at 8-9, 22; Tr. at 141-43, 170, 223-24, 230; Exhs. l l A-B, 13D, 13H). The respondent shares a close relationship with his family, as he and his wife co-own a condominium where they live with their youngest child and their older son and the son's wife and children all live in the same complex, thus allowing the respondent to care for his grandchildren when his son and daught((r-in-law are working (I.J. at 9, 22; Tr. at 142, 144, 172, 224; Exh. 13J). In addition, although the respondent had been laid off from his job at the time of his final hearing, he adduced evidence of his stable employment history, allowing him and his wife to assist his younger son with college tuition expenses (I.J. at 9, 22-23; Tr. at 142-44, 231; Exhs. 13C, 13H-I, 13K, 14, 16-17). Moreover, the record contains persuasive evidence that the respondent and his family would experience hardship as a result of the respondent's removal, particularly because his wife would stay in the United States without her husband so that she could continue to receive medical attention and medication (I.J. at 12, 22; Tr. at 171, 230-32; Exhs. 13C-D, 13F, 13L). The respondent also expressed concerns about his ability to find employment in Bosnia and to treat his own high blood pressure, elevated heart rate, and kidney complications (I.J. at 22-23; Tr. at 170-73, 232-33; Exhs. 13C, 13F, 13L). The respondent, however, has also demonstrated some serious negative factors. For instance, he acknowledges that he repeatedly failed to disclose his military service in his immigration applications because he believed that this service would make him ineligible for the immigration benefits he was seeking from the United States (I.J. at 10-11, 20-22; Tr. at 165-70, 201; Exhs. 3A-B, 3F, 7M, 70). Moreover, he also acknowledged that he lied about his whereabouts during the civil war on his refugee application and did not disclose his military service when asked during his interview with United States immigration authorities (I.J. at 10-11; Tr. at 199200; Exhs. 3A-B, 7M, 70). As noted by the Immigration Judge the respondent's omissions are particularly concerning where, as here, the respondent failed to disclose his VRS service, as the organization, and specifically the Zvornik Infantry Brigade's 4th Infantry Battalion where the respondent served, was responsible for the Srebrenica Massacre involving the genocide of thousands of Muslims fleeing from the collapsing United Nations safe zone in the summer of 1995 (I.J. at 8, 21; Tr. at 37-50, 253-55; Exhs. 3A-B, 3F, 7M, 70, 8). However, we discern no clear error in the Immigration Judge's factual finding that the respondent was likely a low-level

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"

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member of the YRS with duties limited to guarding the Serbian-Muslim border near where he was stationed (I.J. at 9-11, 21-22; Tr. at 146-47, 153, 155-65; Exhs. 3A-B, 3F, 7M, 70). In light of the foregoing, upon de novo review, we agree with the Immigration Judge that notwithstanding the negative factors presented in this case the respondent merits relief in the exercise of discretion. Accordingly, the following orders will be entered.

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ORDER: The DHS appeal is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. 1003.1 (d)(6), the record is remanded to the Immigration Judge for the limited purpose of allowing the DHS an opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. 1003.47(h).

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Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014)

U.S.

Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review Falls Church, Virginia

20530

File:

-454 - Orlando, FL

Date:

MAR 2 7 2014

Immigrant & Refugee Appellate Center | www.irac.net

DISSENTING OPINION: Teresa L. Donovan, Temporary Board Member

I respectfully dissent. Although I, like the majority, discern no clear error in the Immigration Judge's factual finding that the respondent was likely a low-level member of the Army of the Republic of Srpska (VRS), I would still conclude that the respondent's misrepresentations regarding his VRS service are particularly significant negative factors in the respondent's case, outweighing the positive equities presented in support of his waiver. Specifically, the respondent knowingly and repeatedly misrepresented his VRS involvement and his whereabouts during armed conflicts in securing multiple immigration benefits (I.J. at 9-11, 21-22; Tr. at 146-47, 153, 155-65; Exhs. 3A-B, 3F, 7M, 70). Moreover, I agree with the Department of Homeland Security that the equitable significance of the respondent's length of residence and family ties in the United States, including his lawful permanent resident wife and two, naturalized United States citizen children, is undercut by the respondent's fraud (DHS Brief at 19-20). Notably, the respondent, his wife, and children were able to enter the United States as refugees and ultimately adjust their status to that of lawful permanent residents based on the respondent's applications wherein he made serious material misrepresentations, including misrepresentations regarding his military service (I.J. at 10-12; Tr. at 165-70, 175-76, 178, 228-29, 233, 236-38; Exhs. 3A-B, 4F, 7M, 70). As a result, I would sustain the DHS appeal and conclude upon de novo review that the respondent does not merit a waiver under section 237(a)(l )(H) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(l )(H), in the exercise of discretion.

Teresa L. Donovan Temporary Board Member

Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014) (Donovan, dissenting)