Jovo Asentic v. Jefferson B. Sessions III , 873 F.3d 974 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1202
JOVO ASENTIC,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A078-775-182
____________________
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 author-
ized the government to remove Asentic from this country be-
cause, in applying for refugee status, he failed to disclose his
2 No. 17-1202
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 remova-
ble based on fraud, and we lack jurisdiction to review the
Board’s discretionary decision to deny the waiver.
I. Background
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 appli-
cants. IOM agents interviewed applicants in their native lan-
guage and then completed an English-language refugee ap-
plication. 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 Asen-
tic’s service, during the Bosnian conflict, in the Zvornik Infan-
try 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-
No. 17-1202 3
ternal memorandum from U.S. Immigration and Customs En-
forcement concedes that many immigrants from the Bosnian
conflict “have been assisted in crafting this misrepresentation
by local national support personnel from the International Or-
ganization 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
VRS.
Asentic’s omissions caught up with him years later when
officials at Immigrations and Customs Enforcement began
systematically checking VRS records against refugee applica-
tions. Michael MacQueen, a senior historian in the Human
Rights Law section of the Office of the Principal Legal Advi-
sor, 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 Bos-
nia. See, e.g., Eleanor Rose, America’s Hidden Bosnian War Crim-
inals 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
/world/us-seeks-to-deport-bosnians-over-war-crimes.html.
MacQueen interviewed Asentic under oath in 2006. When
asked if he had served in the VRS between 1992 and 1996,
4 No. 17-1202
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 re-
movability.
Prolonged immigration proceedings followed. After hear-
ing 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 re-
movable 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 appli-
cation 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 immigra-
tion judge revisited her ruling in a later written decision but
again said nothing about materiality.)
1 The Notice to Appear also charged that Asentic had been convicted
under 18 U.S.C. § 1546 of falsifying his refugee application, but that inac-
curate 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).
No. 17-1202 5
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 immigra-
tion 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 Bos-
nia 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 sol-
diers, however, and was limited to helping company mem-
bers 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. Con-
sulate 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.
6 No. 17-1202
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 par-
ticipated 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 of-
ficer from any battalion of the Zvornik Brigade has been pros-
ecuted in the International Criminal Tribunal for the former
Yugoslavia and that the 7th Battalion hasn’t even been men-
tioned 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 ac-
tivity.
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 difficul-
ties Asentic would experience living in Bosnia given his
mixed marriage, his age, his lack of connections, and the scar-
city 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 statuto-
rily 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, mean-
ing he is not statutorily barred from receiving a waiver as he
No. 17-1202 7
would be if he participated in genocide or extrajudicial kill-
ings. 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 employ-
ment, 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 refu-
gee and adjust of status applications “particularly seri-
ous”―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 immigra-
tion judge’s findings on removability and on Asentic’s appli-
cation 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 omis-
sion 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, possi-
bly, 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 immigra-
tion judge’s analysis. The Board added that Asentic’s promo-
tions and continued service after the war suggested “compli-
ance at a time when war crimes were being committed.”
8 No. 17-1202
II. Discussion
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 deci-
sion 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 immi-
gration 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 ser-
vice 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 con-
scripted.
When the government relies on § 1182(a)(6)(C)(i) in assert-
ing fraud as a basis for inadmissibility, it must establish four
No. 17-1202 9
elements by clear and convincing evidence: (1) the alien mis-
represented a fact, (2) he did so willfully, (3) the misrepresen-
tation was material, and (4) the alien procured an immigra-
tion 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 asy-
lum, he disclosed what the IOM representative advised him
to disclose. But the form itself is what the agent from U.S. Cit-
izenship and Immigration Services evaluated and is the doc-
ument 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 mis-
representation 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 misrepre-
sentation. See Garcia v. I.N.S., 31 F.3d 441, 443 (7th Cir. 1994).
A misrepresentation is willful if made deliberately and volun-
tarily. 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).
10 No. 17-1202
Asentic’s misrepresentation was willful because he delib-
erately and voluntarily omitted his VRS service. When
MacQueen interviewed him in 2006, Asentic admitted know-
ing it was unlawful to omit information from his refugee ap-
plication. He also conceded that the omission was motivated
by fear that candor would harm his chances of gaining refu-
gee 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 ap-
plication was involuntary. Faulting Asentic for taking advice
from someone coordinating directly with the U.S. immigra-
tion 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 Immi-
gration 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 con-
fessed to knowing that disclosing his VRS service was re-
quired, despite the IOM agent’s tip that silence would help
assure a favorable determination. Thus, the IOM agent’s ad-
vice does not change the voluntary and deliberate nature of
his act.
3. Materiality of the Misrepresentation
A misrepresentation “is material if it had a natural ten-
dency to influence” immigration officials. Kalejs, 10 F.3d at
446. Asentic argues that “mandatory service was common
No. 17-1202 11
knowledge among all IOM representatives” and so his omis-
sion 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 ser-
vice, 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 de-
ceive the IOM agent; he told her about his VRS service. In-
stead, the person deceived by his incomplete refugee applica-
tion was the decision-maker from U.S. Customs and Immigra-
tion 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 investiga-
tion by an immigration official, then the misrepresentation is
certainly material. See Latchin, 554 F.3d at 714. Asentic essen-
tially admitted that his omission was material given that he
testified that he purposely left his VRS service off his immi-
gration forms because he feared that full disclosure could re-
sult 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).
12 No. 17-1202
4. Procurement of an immigration benefit
Proof of a material misrepresentation raises a rebuttable
presumption that the alien benefited from the misrepresenta-
tion. 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
element.
B. Waiver of Removal
Asentic next argues that the Board incorrectly weighed the
evidence in concluding that he did not merit a waiver of re-
movability 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 dis-
cretion. Singh v. Gonzales, 451 F.3d 400, 410 (6th Cir. 2006).
Asentic’s statutory eligibility is undisputed. Nevertheless, alt-
hough previously we had not considered our authority to re-
view 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,
No. 17-1202 13
89–90 (1st Cir. 2010); Singh, 451 F.3d at 411; San Pedro v. Ash-
croft, 395 F.3d 1156, 1157–58 (9th Cir. 2005).
III. Conclusion
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 peti-
tion for review. The remainder of the petition is DENIED.