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Asentic v. Sessions

United States Court of Appeals, Seventh Circuit

October 17, 2017

Jovo Asentic, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued August 9, 2017

         Petition for Review of an Order of the Board of Immigration Appeals, No. A078-775-182

          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.

         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 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 internal 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 VRS.

         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 /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, 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 omited 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.)

         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 ...


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