Jovo Asentic v. Jeff Session
Filed opinion of the court by Judge Manion. Because we do not have jurisdiction to review the Board's denial of Asentic's application for a waiver of removal under 8 U.S.C. 1127(a)(1)(H), we DISMISS that portion of his petition for review. The remainder of the petition is DENIED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6877096-1]  [17-1202]
United States Court of Appeals
For the Seventh Circuit
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Petition for Review of an Order of the Board of Immigration Appeals.
ARGUED AUGUST 9, 2017 — DECIDED OCTOBER 17, 2017
Before MANION, KANNE, and SYKES, Circuit Judges.
MANION, Circuit Judge. Jovo Asentic, a Bosnian Serb who
is now 65, was granted refugee status and brought his family
to the United States from the former Yugoslavia more than
fifteen years ago. He has been a permanent resident for nearly
that long, but the Board of Immigration Appeals has authorized the government to remove Asentic from this country because, in applying for refugee status, he failed to disclose his
participation as a combatant in the Bosnian conflict during the
1990s. The Board could have granted Asentic a discretionary
waiver of removal under 8 U.S.C. § 1227(a)(1)(H) but declined
to do so. Asentic petitions for review. Although he presents a
sympathetic case, we agree with the Board that he is removable based on fraud, and we lack jurisdiction to review the
Board’s discretionary decision to deny the waiver.
Asentic, his wife, and two adult children applied to come
to the United States as refugees after the end of the Bosnian
conflict. Asentic is Orthodox Christian, and his wife, Nadja, is
Muslim. Asentic’s refugee application was based on a fear of
persecution because of this “mixed marriage.” Refugees in
Belgrade (where Asentic applied) were referred to staff from
the International Organization for Migration (“IOM”), which
had contracted with the State Department to screen applicants. IOM agents interviewed applicants in their native language and then completed an English-language refugee application. That form was passed to an adjudicating officer
from U.S. Citizenship and Immigration Services, who placed
the applicant under oath and, using an interpreter (typically
another IOM case worker), reviewed the application with
him. On Asentic’s form in the section for “military service,”
the IOM agent listed Asentic’s service from 1974 to 1975 in the
Yugoslav army. The completed form does not mention Asentic’s service, during the Bosnian conflict, in the Zvornik Infantry Brigade of the Army of Republika Srpska (the Bosnian
Serb army, abbreviated “VRS”). An IOM agent had advised
Asentic to “keep quiet about his service” or risk being rejected
as a refugee. He was not alone in receiving this advice; an in-
ternal memorandum from U.S. Immigration and Customs Enforcement concedes that many immigrants from the Bosnian
conflict “have been assisted in crafting this misrepresentation
by local national support personnel from the International Organization for Migration … in Belgrade.” Asentic and his
family were accepted as refugees and moved to the United
States in 2000. He and his wife obtained green cards, and his
children eventually became naturalized U.S. citizens. On
Asentic’s application to adjust his status, which he completed
to obtain his green card, he again omitted his service in the
Asentic’s omissions caught up with him years later when
officials at Immigrations and Customs Enforcement began
systematically checking VRS records against refugee applications. Michael MacQueen, a senior historian in the Human
Rights Law section of the Office of the Principal Legal Advisor, was among those looking for ethnic Serbs in the United
States who had not disclosed their service during the Bosnian
conflict. See, e.g., Pamela Constable, Immigration Team Chases
Bosnian War Criminals 20 Years After Conflict’s End, Wash. Post
(Mar. 8, 2015). News media reported that MacQueen and his
team have investigated approximately 300 refugees from Bosnia. See, e.g., Eleanor Rose, America’s Hidden Bosnian War Criminals Face Determined Foe, Balkan Transitional Justice (Feb. 13,
2017). Some of those refugees served in the VRS but were not
involved in its atrocities. See Constable, Immigration Team; Eric
Lichtblau, U.S. Seeks to Deport Bosnians over War Crimes, N.Y.
Times (Feb. 28, 2015), https:// www.nytimes.com /2015 /03 /01
MacQueen interviewed Asentic under oath in 2006. When
asked if he had served in the VRS between 1992 and 1996,
Asentic acknowledged that he had been part of the Zvornik
Infantry Brigade. Two years later, Immigration and Customs
Enforcement issued a Notice to Appear charging Asentic as
removable on the ground that he purposely failed to disclose
his VRS service in both his refugee application and his later
application to adjust status.1 Asentic declined to concede removability.
Prolonged immigration proceedings followed. After hearing testimony from two government witnesses (MacQueen
and Todd Gardner, Special Assistant to the Director of the
Refugee Affairs Division in U.S. Citizenship and Immigration
Services), an immigration judge concluded that Asentic is removable under 8 U.S.C. § 1227(a)(1)(A) because he willfully
omitted material information―his VRS involvement―from
his immigration forms. Gardner specifically insisted that
Asentic’s omission of his VRS service from his refugee application was material because, if he had told the truth, further
inquiry would have been conducted. But the immigration
judge said little about the materiality of Asentic’s omissions,
noting only that candor about VRS involvement had been
“critical, especially during the Bosnian conflict, for the U.S.
Government to further inquire as to his participation in the
Bosnian conflict during that period of time.” (The immigration judge revisited her ruling in a later written decision but
again said nothing about materiality.)
The Notice to Appear also charged that Asentic had been convicted
under 18 U.S.C. § 1546 of falsifying his refugee application, but that inaccurate charge was dropped. Asentic had been indicted under § 1546, but
the government dismissed the criminal case with prejudice. United States
v. Asentic, 1:07-cr-00471-1 (N.D. Ill. Aug. 4, 2008).
Asentic responded to this ruling by applying for a waiver
of removability under 8 U.S.C. § 1227(a)(1)(H), which allows
an immigration judge to overlook fraud if the applicant has
significant family ties in the United States and the immigration judge decides that a waiver is merited. Both Asentic and
MacQueen then testified about Asentic’s service in the VRS,
in particular at the time of the Srebrenica massacre.
Asentic testified first. He explained that, initially, he left
his predominately Muslim village and fled to Serbia with his
family to escape conscription in the Muslim territorial defense
force. But VRS sympathizers in Serbia forced him back to Bosnia and into the ranks of the VRS. He was assigned to what
eventually became the 7th Battalion of the Zvornik Brigade
and was tasked with guarding the de facto border between
Serbian and Bosnian areas. During his years of service, he was
promoted, both officially and unofficially, by the commander
of his battalion. According to Asentic, the commander, an old
business acquaintance, was trying to protect him, since his
mixed marriage was a source of suspicion. By the time of the
Srebrenica massacre in July 1995, Asentic had been given the
rank of assistant commander of the company (which had
about 90 soldiers). He did not have authority over other soldiers, however, and was limited to helping company members resolve personal issues. Regarding Srebrenica, Asentic
said his battalion was stationed about 100 miles away and did
not participate in the massacre. He was on the border until the
end of the armed conflict in Bosnia, signaled by the signing of
the Dayton Accords in 1995, see 767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152,
156 (2d Cir. 2000), after which he was made commander of an
aerial defense unit that never was operational. His service
ended in March 1996.
MacQueen acknowledged that Asentic’s specific role at
Srebrenica is not documented in VRS records, which show
only that he was on duty continuously during the time of the
massacre. MacQueen thought it unlikely that Asentic had participated in executions, but he speculated that the petitioner
had seen some combat and probably helped catch stragglers
after the massacre. MacQueen conceded, though, that no officer from any battalion of the Zvornik Brigade has been prosecuted in the International Criminal Tribunal for the former
Yugoslavia and that the 7th Battalion hasn’t even been mentioned in any judgment from that court. Nor has any member
of the 7th Battalion been prosecuted by the War Crimes
Chamber in Bosnia and Herzegovina. Asentic’s name has not
surfaced in any accusation of war crimes or other criminal activity.
Asentic and his family also testified that his removal
would be especially burdensome for the family because of his
wife’s health issues, her inability to work or drive, and her
general dependence on Asentic. They discussed the difficulties Asentic would experience living in Bosnia given his
mixed marriage, his age, his lack of connections, and the scarcity of jobs. Asentic also noted his “good behavior” in the
United States―he has been employed consistently, has paid
taxes every year, and has never been charged with a crime
(here or in the former Yugoslavia).
The immigration judge concluded that Asentic is statutorily eligible for the fraud waiver but, as a matter of discretion,
also concluded that he is undeserving. The immigration judge
credited Asentic’s testimony and found by a preponderance
of evidence that he did not participate in the genocide, meaning he is not statutorily barred from receiving a waiver as he
would be if he participated in genocide or extrajudicial killings. See 8 U.S.C. § 1227(a)(4)(D). And the immigration judge
looked favorably on Asentic’s lengthy residence in the
United States, his lack of criminal history, his steady employment, his consistent payment of taxes, his significant family
responsibilities, and the burden his family would bear if he is
removed. But against all of this the immigration judge
deemed the nature of Asentic’s misrepresentation on his refugee and adjust of status applications “particularly serious”―the first because it was done deliberately out of fear
that telling the truth would prevent him from being admitted
as a refugee, and the second because the omission was in the
context of his extensive military service at a time when the
VRS committed atrocities.
The Board of Immigration Appeals upheld the immigration judge’s findings on removability and on Asentic’s application for a waiver. After reassessing the evidence, the Board
likewise concluded that Asentic is subject to removal because
he willfully failed to disclose his VRS service when he applied
for refugee status. (The Board did not discuss Asentic’s omission on his application for a green card.) That omission was
material, the Board reasoned, because a truthful answer could
have prompted more questions about Srebrenica and, possibly, a finding of inadmissibility. The Board reweighed those
factors the immigration judge had considered in declining to
grant a waiver, and again the Board agreed with the immigration judge’s analysis. The Board added that Asentic’s promotions and continued service after the war suggested “compliance at a time when war crimes were being committed.”
When the Board of Immigration Appeals adopts but also
supplements an immigration judge’s analysis, we review both
decisions to the extent we have jurisdiction. Delgado-Arteago v.
Sessions, 856 F.3d 1109, 1114 (7th Cir. 2017). In contrast, when
the Board has issued a stand-alone decision, even if that decision endorses the immigration judge’s reasoning, we review
only the Board’s decision. See Yuan v. Lynch, 827 F.3d 648, 653
(7th Cir. 2016); Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.
2007). In this case the Board analyzed the issues presented by
Asentic’s appeal without adopting the immigration judge’s
decision, so we review only the Board’s decision.
A. Finding of Removability
Asentic first argues that the Board wrongly concluded that
he is subject to removal under 8 U.S.C. § 1227(a)(1)(A). That
provision authorizes removal if the alien was inadmissible
when he entered the United States. The Board, like the immigration judge, reasoned that Asentic was inadmissible when
he arrived in the United States because he had willfully failed
to disclose his VRS service, a material fact, and thus obtained
an immigration benefit through fraud. See 8 U.S.C.
§ 1182(a)(6)(C)(i); Kalejs v. I.N.S., 10 F.3d 441, 446 (7th Cir.
1993). Asentic contends that omitting mention of his VRS service could not have been willful because the IOM agent told
him to say nothing about that service. Moreover, he insists,
the omission was not material because every IOM agent in
Belgrade knew that all adult males in Bosnia had been conscripted.
When the government relies on § 1182(a)(6)(C)(i) in asserting fraud as a basis for inadmissibility, it must establish four
elements by clear and convincing evidence: (1) the alien misrepresented a fact, (2) he did so willfully, (3) the misrepresentation was material, and (4) the alien procured an immigration benefit as a result. Atunnise v. Mukasey, 523 F.3d 830, 835
(7th Cir. 2008); Kalejs, 10 F.3d at 446. The Board analyzed these
elements and concluded that Asentic had engaged in fraud,
and that conclusion is supported by substantial evidence.
1. Existence of a Misrepresentation
Asentic argues that he did not misrepresent “any aspect of
his military participation” because, when he applied for asylum, he disclosed what the IOM representative advised him
to disclose. But the form itself is what the agent from U.S. Citizenship and Immigration Services evaluated and is the document that Asentic swore to be true. And that form states only
that Asentic had fled Bosnia in 1992 and nothing more. Giving
incomplete information that obfuscates possible involvement
in atrocities constitutes a misrepresentation. See Kalejs, 10 F.3d
at 445. Thus Asentic’s contention that he did not make a misrepresentation is unpersuasive.
2. Willfulness of the Misrepresentation
Under § 1182(a)(6)(C)(i), willfulness is evaluated from the
subjective perspective of the person who made the misrepresentation. See Garcia v. I.N.S., 31 F.3d 441, 443 (7th Cir. 1994).
A misrepresentation is willful if made deliberately and voluntarily. E.g., Wen Zhong Li v. Lynch, 837 F.3d 127, 131 (1st Cir.
2016). Proof that an alien knew his representation to be false
suffices to establish willfulness. See Mwongera, 187 F.3d at 330;
Parlak, 578 F.3d at 464; Witter v. I.N.S., 113 F.3d 549,
554 (5th Cir. 1997).
Asentic’s misrepresentation was willful because he deliberately and voluntarily omitted his VRS service. When
MacQueen interviewed him in 2006, Asentic admitted knowing it was unlawful to omit information from his refugee application. He also conceded that the omission was motivated
by fear that candor would harm his chances of gaining refugee status. These admissions establish that Asentic knew his
incomplete answer about military service was false and that
he deliberately advanced that falsehood. And though Asentic
argues that the IOM agent “induced” his incomplete answer,
he has never asserted that the omission from his refugee application was involuntary. Faulting Asentic for taking advice
from someone coordinating directly with the U.S. immigration officers might seem harsh―particularly given that the
former head of the IOM mission in Belgrade acknowledged
that many refugees thought the IOM was a U.S. government
agency. One can imagine a Bosnian refugee thinking the IOM
agent and the adjudicator from U.S. Citizenship and Immigration Services were coworkers and thus, if the refugee was
in doubt about the need for disclosure, the IOM agent could
be trusted to know what information was required. But that’s
a hypothetical for another day; as we have said, Asentic confessed to knowing that disclosing his VRS service was required, despite the IOM agent’s tip that silence would help
assure a favorable determination. Thus, the IOM agent’s advice does not change the voluntary and deliberate nature of
3. Materiality of the Misrepresentation
A misrepresentation “is material if it had a natural tendency to influence” immigration officials. Kalejs, 10 F.3d at
446. Asentic argues that “mandatory service was common
knowledge among all IOM representatives” and so his omission could not “possibly cut off a line of inquiry as to service
which IOM representatives not only knew” about “but in fact
induced him to omit.” Asentic also contends that the IOM
agent could have questioned him further about his VRS service, even though it was omitted from his refugee application,
because the agent knew about that service.
We do not understand Asentic’s point. Asentic did not deceive the IOM agent; he told her about his VRS service. Instead, the person deceived by his incomplete refugee application was the decision-maker from U.S. Customs and Immigration Service.
The purpose of the materiality requirement is “to exclude
trivial or irrelevant misstatements,” and thus the government
need not show that the alien would have been excluded based
on a truthful statement. United States v. Latchin, 554 F.3d 709,
713 (7th Cir. 2009); Kalejs 10 F.3d at 446. But if, for example, a
truthful statement would have resulted in further investigation by an immigration official, then the misrepresentation is
certainly material. See Latchin, 554 F.3d at 714. Asentic essentially admitted that his omission was material given that he
testified that he purposely left his VRS service off his immigration forms because he feared that full disclosure could result in further questioning and unfavorable decisions.
See Matter of D-R-, 25 I. & N. Dec. 445, 450 (BIA 2011) (Board
concluded that government had established materiality of
Bosnian refugee’s nondisclosure of service with special police
force, since expert testified that disclosure would have
prompted additional questioning about asylum application).
4. Procurement of an immigration benefit
Proof of a material misrepresentation raises a rebuttable
presumption that the alien benefited from the misrepresentation. Habib v. Lynch, 787 F.3d 826, 831–32 (7th Cir. 2015); Kalejs,
10 F.3d at 446. The alien may rebut this presumption through
a preponderance of evidence establishing that complete and
truthful disclosure would not have defeated his application
for an immigrant benefit. Habib 787 F.3d at 831–32; Kalejs,
10 F.3d at 446. Before the Board, however, Asentic never tried
to rebut the presumption that concealing his VRS service
helped him gain refugee status and a green card. It is too late
to make that argument now, see Awe v. Ashcroft, 324 F.3d 509,
512–13 (7th Cir. 2003) (arguments not timely raised are
waived), and so the government also has satisfied this final
B. Waiver of Removal
Asentic next argues that the Board incorrectly weighed the
evidence in concluding that he did not merit a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). To obtain this
waiver, an alien who is statutorily eligible must, in the eyes of
the immigration judge or Board, merit a favorable act of discretion. Singh v. Gonzales, 451 F.3d 400, 410 (6th Cir. 2006).
Asentic’s statutory eligibility is undisputed. Nevertheless, although previously we had not considered our authority to review the denial of a § 1227(a)(1)(H) waiver, we now join the
circuits which have considered this question and conclude
that we lack jurisdiction to do so. See Mutie-Timothy v. Lynch,
811 F.3d 1044, 1049 (8th Cir. 2016); Alhuay v. U.S. Att’y Gen.,
661 F.3d 534, 549 (11th Cir. 2011); Ahmed v. Holder, 624 F.3d
150, 153–54 (2d Cir. 2010); Zajanckauskas v. Holder, 611 F.3d 87,
89–90 (1st Cir. 2010); Singh, 451 F.3d at 411; San Pedro v. Ashcroft, 395 F.3d 1156, 1157–58 (9th Cir. 2005).
Because we do not have jurisdiction to review the Board’s
denial of Asentic’s application for a waiver of removal under
8 U.S.C. § 1127(a)(1)(H), we DISMISS that portion of his petition for review. The remainder of the petition is DENIED.
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