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B-S-, AXX XXX 454 (BIA Mar. 27, 2014)

B-S-, AXX XXX 454 (BIA Mar. 27, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the grant of waiver under INA 237(a)(1)(H) upon finding the Department of Homeland Security failed to preserve its argument that the respondent was statutorily barred based on his possible involvement in the Srebrenica Massacre, and that the respondent had qualifying relatives and merited a favorable exercise of discretion. The decision was written by Member Roger Pauley and joined by Member Linda Wendtland and Member Teresa Donovan.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the grant of waiver under INA 237(a)(1)(H) upon finding the Department of Homeland Security failed to preserve its argument that the respondent was statutorily barred based on his possible involvement in the Srebrenica Massacre, and that the respondent had qualifying relatives and merited a favorable exercise of discretion. The decision was written by Member Roger Pauley and joined by Member Linda Wendtland and Member Teresa Donovan.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center on Apr 07, 2014
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05/31/2014

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Marshal E. Hyman
U.S
Dptmt  Justc
Eective Oce  Immgtion Review
Board of Immigraton Appeals Oce of the Clerk
5107 Leburg Pik Sue 2000 /"ls Chuch, Vnia 030
3250
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Big Beaver Road, Sute 529 Troy M 48084 OHS/ICE ffce of Chef Counsel -RL 3535 awton Road, Sute 100 rlando FL 32803 Name S A
54 Date of ths notce: 3/27/204
Encoed i  copy of he Bod decio nd ode in the boveeenced ce Encoe
Panel Members; uy, Rog Wndtnd, Lind
S
Donovn T .
Sinceely
D
c
c
t
onn C Chie Clek
Trane
Ueeam: Dockt
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014)
 
US
Dpm of Jus
Executive Oce r Immigraion Reiew Decision of he Board ommigraion Appeals Fals Chuch, Viginia
20530
File:
454 -Orando, FL InreB
Date N REMOY A PROCEEDNGS APPEAL ON BEHAF OF RESPONDENT Marsha E. Hyman, Esquire ON BEHALF OF DHS CHARGE Notice Sec 237(a)()(A), &N Act [8 USC
§
1227(a)()(A)] nadmissibe at time of entry or adjustment of status under section 212(a)(6)(C)(i), &N Act 8 USC
§
1182(a)(6)(C)(i)] Fraud or wil misrepresentation of materia ct (conceded) Sec 237(a)()(A), &N Act [8 USC
§
1227(a)()(A)] nadmissibe at time of entry or adustment of status under section 212(a)(7)(A)(i)(), &N Act [8 USC
§
1182(a)(7)(A)(i)()] mmigrant
MR
3 7
2014
no vaid immigrant visa or entry document (conceded) APPLCATON Waiver of deportabiity undersection 237(a)()(H) he Department of Homeand Security (DHS) appeas om the mmigration Judge's September 17, 2010, decision granting the respondents waiver of deportabiity under section 237(a)()(H) of the mmigration and Nationaity Act (Act), 8 USC
§
1227(a)()(H) The DHS  request r ora argument is denied
See
8 CFR
§
1003(e)(7) he DHS appea wil be dsmissed and the record wi be remanded r urther proceedings consistent with this decision We  review ndings of ct, including credibiity ndings, r clear error
See
8 CFR
§
1003(d)(3)(i);
see alo Maer of
J-YC,
4 &N Dec 260 (BA 2007);
Maer of S-H,
23 &N Dec 462 (BA 2002) We review questions of aw, discretion, or judgment, and al other issues
de nov. See
8 CFR
§
03(d)(3)(ii) The mmigration Judge made the owing, uncontested ctual ndings The respondent, a native and citizen of Bosnia and Heregovina, served in the Army of the
epublic
(YRS), or the
Ser�
during the civi war in
he rmer ugoslavia om 992
t
1996 (J at 2, 5-6, 9, 11, Tr at 5773, 14647 150, 153, 15564 18689 192, 209 21819, 22526; Exhs 6, 7J) During his time in the YRS the respondent
Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014)
 
54 
seved in the Zvornick Inntry Brigade including spending time in the Zvoick Inntry Brigade's 4th Infantry Battalion (IJ. at 7 10 121; Tr. at 5773 186 209; Exh 8) The 4th Inntry Battalion was a YRS battaln 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 Battaion was involved in the massacre the DHS expe witness conrmed 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).
On
 
1999,
the respondent applied to enter the United States as a regee although he did
h s
YRS paticpation on his regee applicaton or during a related interview 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 respndent also claimed on the application that he ed 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 7) Then on 9 he entered the United States as a regee (I.J. at 2; Tr at 169-70; Exhs 3D 7PQ) 2000 he led an Application r Adjustment of Status (Form I-485) based on his admsson as a regee and on the applicaton he dd not dsclose hs rmer mlitay service (.J at 2 11; Tr. at 170 201
-
Exhs. 3AB) The respondents stas was adjusted to that of a lawl permanent resident on 2001 (I.J at 2; Exh 3F) The respondent acnowledged that he lied on his regee application because he had heard om other applicants that he would be ineligible r regee status and that he later iled to disclose his milit sevice on his adjustment application because he ared being deported om the Unted States (I.J at 11 21; Tr at 165-68 184-85; Exhs 3A-B 3F) Based on the regoing and in lly crediting all of the witnesses testimony the Immigration Judge concluded that the respondent was statutorly elgible r a waiver of deporability under section 237(a)()(H) of the Act because (1) his lawl permanent resident wi is a ualifying relative and (2) the record evidence did not establish that the respondent was involved in the Srebrenca Massacre (I.J at 14-20) In addition the Immigration Judge concluded that the respondents positive euities outweighed any negative ctors presented in this case such that the respondent merits the waiver in the exercise of dscretion (I.J. at 20-24). On appeal the DHS maintains that the respondent is not statutorily eligble r the waiver because he did not establish by a preponderance of the evidence that he was not involved in genocide or extrudicial killing paicularly where as here his sece n the 4th Inntry Battalion r the Zvornick Inntry of the YRS raises conces regrding his possible involvement in the Srebrenica Massacre (DHS Briefat 3 13-18)
See
section 237(a)()(H) of the Act (explaining that an aliens aud in obtaining admission may generally be waived except where he hs pacipated 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)(ii) and section 237(a)(4)(D) of the Act). In addition the DHS maintains that the respondent is not otherwise statutorily eligible r the waiver as he does not have a ualiing relative (DHS Brief at 3 8-13) Specicaly the DHS maintains that because the respondents wi derived her regee status and ultmately her lawl permanent residence based on the respondents regee claim in which he failed to disclose his prior military service she was not "lawlly admitted r permanent residence as reuired by section 237(a)()(H) of the Act (DHS Brief at 89). Finally 2
Cite as: B-S-, AXXX XXX 454 (BIA Mar. 27, 2014)

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