United States Court of Appeals

For the Eighth Circuit

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No. 15-3835

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Vladimir Maric

lllllllllllllllllllllPetitioner

v.

Jefferson B. Sessions, III, Attorney General of the United States

1

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: December 14, 2016

 Filed: April 18, 2017

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Before LOKEN, MURPHY, and KELLY, Circuit Judges.

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LOKEN, Circuit Judge.

Vladimir Maric is a citizen of Bosnia and Herzegovina, part of the former

Yugoslavia, who was admitted into the United States as a refugee with his wife and

two children in September 1999 and became a lawful permanent resident in 2001. 

Jefferson B. Sessions, III, has been appointed to serve as Attorney General of 1

the United States and is substituted as respondent. See Fed. R. App. P. 43(c).
The Department of Homeland Security (“DHS”) commenced removal proceedingsin

January 2011, charging that Maric obtained immigration benefits by fraud or willful

misrepresentation of a material fact. See 8 U.S.C. § 1182(a)(6)(C)(i). After a

hearing, the Immigration Judge (“IJ”) found Maric removable because, at the time of

his admittance and adjustment of status, he concealed that he had served in the Army

of the Serb Republic, Vojska Republika Srpske (“VRS”), from January 2, 1995 to

January 27, 1996, a period that encompassed the July 1995 massacre of thousands of

Bosnian Muslimprisonersin Srebrenica, Bosnia and Herzegovina. Maric applied for

a discretionary waiver of deportation under 8 U.S.C. § 1227(a)(1)(H). The IJ found

Maric ineligible for this relief because he failed to prove he is not an alien who

“committed . . . assisted, or otherwise participated in” extrajudicial killings under

color of law of any foreign nation. 8 U.S.C. § 1182(a)(3)(E)(iii). The Board of

Immigration Appeals (“BIA”) affirmed. Maric petitions for review, arguing the BIA

erred by not requiring the government to prove by clear and convincing evidence that

he was inadmissible under § 1182(a)(3)(E). We deny the petition for review.

1. Section 212(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1182(a), lists classes of aliens who are “ineligible for visas or admission.” Class

3 encompasses “[s]ecurity and related grounds,” which include an alien who has

committed or participated in extrajudicial killings. See § 1182(a)(3)(E)(iii). Class

6 is entitled “[i]llegal entrants” and includes those who obtain immigration benefits

by fraud or material misrepresentation. See § 1182(a)(6)(C)(i). A “material”

misrepresentation is one that has “a natural tendency to influence the decisions” of

the DHS. Matter of D-R-, 25 I. & N. Dec. 445, 450 (BIA 2011). 

Section 237(a) of the INA, 8 U.S.C. § 1227(a), lists classes of removable

aliens. An alien who was inadmissible at the time of entry or adjustment of status is

removable. §1227(a)(1)(A). This category includes an alien who was inadmissible

for fraud or material misrepresentation under § 1182(a)(6)(C)(i). However, an alien

removable for this reason may be eligible for a discretionary waiver of removal if he

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meets the criteria in § 1227(a)(1)(H), unless he is “an alien described in paragraph

(4)(D),” a cross reference to § 1227(a)(4)(D). Section 1227(a)(4)(D) in turn cross

references § 1182(a)(3)(E)(iii). Thus, an alien who has participated in extrajudicial

killings under color of law of a foreign nation isineligible for this waiver of removal. 

The Attorney General’s regulations provide that DHS must prove that an alien

is removable by clear and convincing evidence. See 8 C.F.R. § 1240.8(a). But an

alien applying for a waiver of removal under § 1227(a)(1)(H) “has the burden of

proof to establish that . . . [he] satisfies the applicable eligibility requirements.” 8

U.S.C. § 1229a(c)(4)(A). “If the evidence indicates that one or more of the grounds

for mandatory denial of the application for relief may apply, the alien shall have the

burden of proving by a preponderance of the evidence that such grounds do not

apply.” 8 C.F.R. § 1240.8(d). 

2. At the hearing, Michael MacQueen, a senior historian in DHS’s Human

Rights Division, testified that the VRS and other forces participated in a coordinated

killing operation at Srebrenica in July 1995. The IJ found that Maric’s failure to

disclose his service in the VRS at this time was a material misrepresentation under

§ 1182(a)(6)(C)(i), making Maric removable under § 1227(a)(1)(A). Maric 2

requested a waiver under § 1227(a)(1)(H). DHS presented evidence that Maric may

have participated in the atrocities at Srebrenica. VRS enrollment and attendance

records list Vladimir Maric, with the correct birth date, as carrying out combatant

assignments for the Sixth Battalion, Third Company, of the Zvornik Brigade

throughout most of the month of July 1995. MacQueen also testified that records of

the International Criminal Tribunalfor the former Yugoslavia establish that members

of the Sixth Battalion were housed during this time at a school building in Petkovci. 

On July 14, the VRS detained around 1,000 Bosnian Muslim men and boys captured

Maric did not appeal the finding he is removable to the BIA or in his petition 2

for review to this court. 

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while fleeing the area. Members of the Sixth Battalion removed prisoners from the

school building on July 15 to a nearby dam, executed them by automatic rifle, and

buried them in mass graves.

Maric testified that he was forcibly conscripted by the VRS in January 1995. 

In July, he was on active duty only on July 22, when the VRS removed him from a

marketplace, provided him with an old military uniform and a gun, and bused him to

Petkovci. He walked to Bajkovica and wastold to sit and watch the trenches. He saw

unarmed men crossing a bridge, but did not observe any shooting or dead bodies. He

provided two documentsrelating to his military service, a September 1994 certificate

of exemption showing he was previously exempt from the draft for medical reasons,

and a certificate of conscription demonstrating service in the Zvornik Brigade from

January 2 to April 4, 1995.

Based on this evidence, the IJ found that Maric may have participated in the

atrocities at Srebrenica, “extrajudicial killings” that would make him ineligible for a

waiver of removal under 8 U.S.C. §§ 1227(a)(4)(D) and 1182(a)(3)(E)(iii). Placing

the burden on Maric to prove by a preponderance of the evidence that grounds for

mandatory denial of a waiver did not apply, the IJ denied Maric’s request for a waiver

of removal, finding that his testimony regarding his limited military service was not

credible and the documents he submitted did not relate to his involvement with the

Zvornik Brigade in July 1995.

Maric appealed to the BIA, arguing that the IJ erred in not requiring DHS to

prove by clear and convincing evidence that he participated in the Srebrenica

massacre and therefore was inadmissible under § 1182(a)(3)(E)(iii), the burden of 

proof placed on DHS in Matter of D-R-. The BIA rejected this contention. The issue

in Maric’s case “is not comparable,” the BIA explained, because in Matter of D-R-,

the DHS proved by clear and convincing evidence that respondent was removable

because he participated in extrajudicial killings. Here, DHS did not charge that Maric

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was removable because he was inadmissible under § 1182(a)(3)(E). Rather, DHS

proved by clear and convincing evidence that Maric was removable because he was

inadmissible under § 1182(a)(6)(C)(i) for willful misrepresentation of a material fact,

and thus the issue was whether he was eligible for waiver relief from that removal

under § 1227(a)(1)(H). As the BIA explained, when the IJ found that the

government’s evidence “indicates that one or more of the grounds for mandatory

denial of the application for relief may apply,” the IJ correctly applied 8 C.F.R.

§ 1240.8(d) and placed on Maric the burden to prove he is eligible for waiver relief

by a preponderance of the evidence. 

3. On appeal, Maric again argues that the BIA and the IJ erred in not requiring

DHS to prove by clear and convincing evidence that he was inadmissible and

therefore removable because he participated in the extrajudicial killings at Srebrenica.

“We review the BIA’s legal determinations de novo, but we accord substantial

deference to the BIA’s interpretation of the statutes and regulations it administers.” 

Godfrey v. Lynch, 811 F.3d 1013, 1017 (8th Cir. 2016) (quotation omitted).

Like the BIA, we conclude that Maric’s argument is contrary to the plain

language of the governing statutes and regulation. By statute, the discretionary

waiver of removal Maric seeks under § 1227(a)(1)(H) is available only if (i) he is

removable because he wasinadmissible for fraud or material misrepresentation under

§ 1182(a)(6)(C)(i), and (ii) he is not “an alien described in” § 1227(a)(4)(D). 

Consistent with the governing regulation, the IJ’s finding that DHS presented

evidence that “indicates” Maric may have participated in the extrajudicial killings at

Srebrenica placed on Maric the burden to prove by a preponderance of the evidence

that the statutory bar in § 1182(a)(3)(E)(iii) did not apply. See 8 C.F.R. § 1240.8(d). 

Maric objects that shifting the burden of proof to him based solely on evidence that

“indicates” potential inadmissibility opens a government “backdoor” to find aliens

inadmissible and therefore removable without sufficient evidence. But the issue in

this case is not removability, it is Maric’s eligibility for relief from being removed

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because he willfully misrepresented material facts in obtaining immigration benefits. 

“While the government bears the burden to prove the alien is deportable or

removable, it is the alien’s burden . . . to prove he is eligible for cancellation of

removal.” Andrade-Zamora v. Lynch, 814 F.3d 945, 949 (8th Cir. 2016).

Maric concedes that he is removable for willful misrepresentation and that

DHS’s evidence “indicates” that he may have participated or assisted in the

extrajudicial killings at Srebrenica in July 1995. In these circumstances, the BIA

properly placed on Maric the burden to prove that the statutory bar to waiver relief

in 8 U.S.C. § 1182(a)(3)(E)(iii) did not apply. Accordingly, we deny the petition for

review. We lack jurisdiction to grant Maric’s request for voluntary departure. See

8 U.S.C. § 1229c. 

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