BIA Holds That Immigration Judges And The Board Of Immigration Appeals Lack The Authority To Recognize The Equitable Defense Of Laches In Removal Proceedings. Respondent’s Willful Misrepresentations Regarding His Name, Location Of His Residence, Timing Of His Departure From Rwanda, And Membership In Political Organizations On His Registration For Classification As Refugee (Form I-590) And Supporting Documents Were “Material” Within The Meaning Of INA §212(A)(6)(C)(I) And He Is Therefore Removable Under INA §237(A)(1)(A). The Evidence Indicates That Respondent Ordered, Incited, Assisted, Or Otherwise Participated In The Rwandan Genocide, And He Did Not Produce Sufficient Countervailing Evidence To Demonstrate That He Is Not Subject To The Genocide Bar At INA §212(A)(3)(E)(II).
On July 21, 2021, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a decision by the Immigration Judge (IJ) finding Respondent removable for being inadmissible at entry, failing to establish eligibility for any form of relief or protection, and ordering him removed to Rwanda. Respondent entered the U.S. as a refugee in 1996, stating in his Registration for Classification as Refugee (Form I-590) that he fled Rwanda with his wife in 1994, because his wife, a Tutsi, was threatened by a civil militia organized by a Hutu-dominated political party (MRND) during the Rwandan genocides; he claimed his daughter was born in 1994 in Zaire; and, that he had never belonged to any organization. He also listed, under all other names used, “Roger.” Respondent applied for adjustment of status (AOS) in 1997.
At about that time, several individuals in Rwanda wrote to the U.S. State Department to implicate Respondent in the genocide. Subsequently, in 2009, U.S. Government officials began an investigation in Rwanda interviewing 16 individuals. All knew Respondent by a surname different from that used on his I-590 and 14 were able to identify him in a photo line-up; most said that he was known as “President” or “Councillor” and he was a leader of either the MRND or the militia. One, who claimed to have been Respondent’s neighbor, said he was a militia member who took orders from Respondent “consisting of lists of Tutis to kill and was directed not to leave bodies in the streets”. Several others asserted he “directed the murder of Tutsis at the St.Famille church, where ultimately over 150 people were killed.” Additionally, Respondent’s ex-wife confirmed that he was generally known by a surname different from the one on his I-590 and was a MRND member.
While Respondent was in the U.S., a Rwandan court held an in absentia proceeding concerning his actions during the genocide, accusing him of being both a milita and an MRND “president” and finding him guilty of “providing instructions on those who were supposed to die” and of “supervising and controlling genocide”; the IJ found that, because the conviction was in absentia, Respondent would be entitled to a new trail should he returned to Rwanda. Further, an NGO, African Rights, issued a report into his conduct and concluded he was a head of the MRND and issued orders to the head of the civil militia.
In 2019, the DHS denied Respondent’s AOS application and placed him in removal proceedings, charging him with being removable under INA §237(a)(1)(A) as inadmissible at entry under, among other provisions, INA §212(a)(6)(C)(i) due to fraud or willful misrepresentation of a material fact; DHS later lodged an additional charge of inadmissibility at entry under INA §212(a)(7)(A)(i)(I) as one not in possession of valid entry documents. In turn, Respondent applied for asylum, withholding, and Convention Against Torture (CAT) relief, requesting the IJ to review his AOS denial in conjunction with waivers of inadmissibility under INA §209(a),(c) and 237(a)(1)(H). At trial, Respondent conceded that he misrepresented information on his I-590, including his residence between April and July 1994, as well as his daughter’s place of birth. He claimed to have been known as “Roger” for 2 months while in school, admitted he used a surname different from that in his I-590, and was nonresponsive when asked how his wife was able to move through government roadblocks.
Additionally, Respondent denied ever having been part of a political party in Rwanda, having attended an MRND meeting, or seeing any roadblocks in his hometown. He denied participating in the genocide, testified then none of the information provided to the State Department investigators was true and claimed that all witnesses who provided statements spoke falsely “because of greed and hatred, to please the investigators, or to save their jobs”. Alternatively, he argued that statements were mistranslated or invented by the interpreter. Respondent was nonresponsive when asked where he stayed when forced from his home but not conceded that he gave “an incorrect date of displacement from Rwanda” on his 590 “as a consequence of poor judgment”; he believed that his late date of departure would “cause people to infer that he was involved in the genocide.” Further, Respondent admitted that he lied to asylum officers about his daughter’s place of birth to comport with the false date he gave for his departure from Rwanda. When asked if he omitted his Rwandan surname from his refugee paperwork for that same reason, he was nonresponsive.
The IJ sustained the charge of removability, concluding that DHS has met its burden of proof by clear and convincing evidence and finding that Respondent was not credible, in that “he had knowledge of and participated in the Rwandan genocide.” All applications for relief were denied based on the adverse credibility finding and because Respondent failed to establish he is not subject to the persecutor bar found at INA §§208(b)(2)(A)(i) and 241(b)(3)(B)(i). The IJ also concluded that Respondent ordered, incited, assisted, or otherwise participated in genocide, rendering him inadmissible per INA §212(a)(3)(B)(ii) and (iii) and thus ineligible for AOS in conjunction with a waiver; alternatively, he denied the applications for asylum and withholding on the merits and the CAT claim on the ground that a likelihood of torture in Rwanda had not been established.
In beginning its discussion – initially on the issue of timeliness – the BIA touched on Respondent’s argument that that DHS should have been precluded from instituting proceedings because over 20 years had elapsed from the beginning of the Government investigations to the commencement of removal proceedings, grounding his claim in the equitable doctrine of laches. The decision stated that this contention was incorrectly framed as a procedural due process right under the Fifth Amendment and rejected it, citing a number of cases that have held that the Board lacks authority to recognize equitable defenses that would preclude DHS from undertaking a lawful course of action it is empowered to pursue by statute and regulation. Additionally, the latches defense was developed by courts of equity and the Board is an “administrative body”, not a court of equity; as such, it has no authority to preclude DHS’s lawful conduct.
Respondent’s argument that the delay in instituting proceedings violated his Fifth Amendment right to due press was based on the premise that the passage of time dulled the investigators’ memories, making cross-examination less useful; the reports contained hearsay within hearsay, suggesting “extremely questionable circumstances” and preventing Respondent from confronting or cross-examining the initial witnesses; and much of the evidence from the in absentia trial lacked proper translation certificates or contained illegible or incomplete documents. The BIA first concluded that to prevail on a due process claim, Respondent must demonstrate both that the proceedings lacked fundamental fairness and that he was prejudiced as a result. Here, the IJ had correctly determined that DHS’s evidence was reliable, relevant, probative, and its use was fundamentally fair, especially given Respondent’s incredible testimony. That some evidence derived from an in absentia trial did not make it unreliable; in fact, the IJ accorded no legal effect to the conviction itself. Accordingly, there was no due process violation. Nor was the IJ biased against Respondent – an examination of the record established a fair hearing with the judge treating both parties properly.
Respondent’s removability under §237(a)(1)(A) turned on whether he made willful misrepresentations of material fact on his I-590 and supporting documentation; the Board found he willfully misrepresented his name, the timing of his departure from Rwanda, the location of his residence when he claimed to have fled, and his MRND membership. Further, stated the opinion, misrepresenting one’s identity is material to applications for relief because it impairs the adjudicator’s ability to probe past conduct. Had Respondent disclosed the surname by which was known in Rwanda, an adjudicator might have looked into whether he was the person suspected (and accused and convicted) of a leading role in the Rwandan genocide. Additionally, the date of his departure had a natural tendency to influence an adjudicator because the date provided suggested he was outside of the country and therefore not implicated in over 97% of the killings.
Likewise, noted the BIA, the misrepresentation concerning the location of Respondent’s daughter’s birth was material. It not only had the natural tendency to influence an adjudicator; it was, in fact, calculated to do so – per Respondent’s own testimony. Similarly, the I-590 required that he disclude all political, professional, and social organizations with which he had been affiliated since his 16th birthday. His failure to disclose his MRND membership was therefore a misrepresentation considered material because it cut off a line of inquiry into Respondent’s personal involvement in specific, known events; had his involvement been known, it may have resulted in disqualification from immigration benefits.
The Board next found that the IJ’s adverse credibility finding precludes Respondent from establishing asylum and withholding eligibility and that the evidence indicates he is subject to the genocide bar under the INA and his own evidence failed to establish that he is not subject to this bar. He is therefore precluded from all forms of relief and protection from removal, with the exception of deferral of removal under CAT. The BIA also denied his AOS application and all waivers in the exercise of discretion and concluded that the IJ correctly determined that Respondent failed to establish CAT deferral eligibility.
Next, the Board affirmed the IJ’s adverse credibility finding “because it is not clearly erroneous”. The IJ properly found that Respondent’s account of his and his family’s personal circumstances at the time of the genocide to be implausible; he never articulated a “clear account” of what he and his family did at that time, where they lived, how his pregnant Tutsi wife got though roadblocks, or why they remained in Rwanda for so long.
An adverse credibility finding is a finding of fact, noted the opinion, and the BIA’s review is limited to clear error; the decision here, then, is whether in light of the evidence, the IJ’s finding was permissible. As the adverse credibility finding is supported by the record, it was not clearly erroneous. Further, the Board agreed with the IJ that Respondent’s lack of credibility prevents him from meeting his burden of proof for asylum and withholding. The opinion, therefore, affirmed the denial of Respondent’s asylum and withholding applications.
Regarding the genocide bar of INA §212(a)(3)(E)(ii), the decision initially explained that one subject to the bar is ineligible for “all forms of relief and protection from removal, with the exception of deferral of removal,” as that section “renders inadmissible any [one] who ordered, incited, assisted, or otherwise participated in genocide…” Further, noted the BIA, no waiver exists and one subject to the bar is excluded from AOS, asylum, and withholding under both the INA and the CAT. Here, Respondent challenged the weight the IJ assigned curtain evidence regarding his actions in Rwanda but did not dispute that what happened there was genocide; as such, the legal question becomes whether this evidence indicated Respondent ordered, incited, assisted, or otherwise participated in genocide and, if so, whether he had produced sufficient countervailing evidence demonstrating he did not. The Board found the evidence indicates Respondent ordered genocide with the intent to destroy the Tutsi people in whole or in part and that he had failed to establish otherwise. The evidence also indicates that Respondent assisted or otherwise participated in genocide, as well.
As to the issue of discretion, the BIA agreed with the IJ’s “alternative determination” that Respondent does not merit INA §209 AOS with waivers of inadmissibility in the exercise of discretion for 2 reasons: 1) the Attorney General had made clear that, except upon a showing of “extraordinary circumstances”, AOS may not be granted under §209 to individuals who have committed “violent or dangerous” crimes, and, depending on the gravity of the underlying crimes, “such a showing might still be insufficient,” and 2) the ultimate consideration when balancing factors in exercising discretion is to determine whether granting relief is in the best interest of the U.S. Both factors, concluded the opinion, “weigh heavily against” Respondent; the applicant, therefore, did not warrant a favorable exercise of discretion.
Lastly, the Board affirmed the IJ’s denial of Respondent’s request for deferral of removal under CAT. Based on the entire record, stated the decision, the IJ is correct that Respondent had not established that it is more likely than not that he will be tortured upon return to Rwanda. The appeal was dismissed. Matter of O-R-E-, 28 I&N Dec. 330 (BIA 2021).