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105

Matter of D-R-, Respondent

Decided September 14, 2017

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and 

Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of 

inquiry that is relevant to the alien’s admissibility and that would predictably have 

disclosed other facts relevant to his eligibility for a visa, other documentation, or 

admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial 

killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or 

inaction and the extrajudicial killing and (2) his scienter, meaning his prior or 

contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 

915 (9th Cir. 2006), not followed.

FOR RESPONDENT: Don P. Chairez, Esquire, Las Vegas, Nevada 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Michael McVicker, Associate 

Legal Advisor 

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

MALPHRUS, Board Member:

This case is before us on remand from the United States Court of Appeals 

for the Ninth Circuit for further clarification of those portions of our decision 

in Matter of D-R-, 25 I&N Dec. 445 (BIA 2011), in which we found the 

respondent removable under section 237(a)(1)(A) of the Immigration and 

Nationality Act, 8 U.S.C. § 1227(a)(1)(A) (2006), as an alien who was 

inadmissible at the time of entry because he willfully misrepresented a 

material fact under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 

§ 1182(a)(6)(C)(i) (2006), and under section 237(a)(4)(D) as an alien who 

assisted or otherwise participated in an extrajudicial killing under section 

212(a)(3)(E)(iii)(II). 1 Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 

2015). The respondent’s appeal will again be dismissed.

 1 The respondent was also charged under section 237(a)(1) of the Act as an alien who 

was inadmissible at the time of entry under section 212(a)(7)(A)(i)(I) because he had no 

valid entry documents. However, the Immigration Judge’s decision did not address that 

charge and it was not an issue on appeal. 
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I. FACTUAL AND PROCEDURAL HISTORY

We incorporate by reference the factual and procedural history set forth 

in Matter of D-R-, 25 I&N Dec. at 446−49, but will also summarize relevant 

parts of our decision. In addition, we incorporate by reference sections C, D, 

E, and F of Part II concerning documentary evidence and expert testimony, 

interpretation issues, the respondent’s motion to terminate, and his

ineligibility for asylum and other relief and protection from removal. Id. at

457−64. Because the Ninth Circuit did not address those portions of our 

decision, we reaffirm our determinations in them without further discussion.

The respondent is a native and citizen of Bosnia-Herzegovina who was 

admitted to the United States as a refugee in June 1999 and adjusted his status 

to that of a lawful permanent resident in 2002. In 2008, the Department of 

Homeland Security (“DHS”) issued a notice to appear, charging that the 

respondent is removable because he made a material misrepresentation on 

his refugee application—that is, he did not disclose that he was a Special 

Police officer and “Squad” (later changed to “platoon”) commander in the 

Republika Srpska during the Bosnian War.2

 In 2009, the DHS lodged an 

additional charge of removability against the respondent, charging that he

had participated in the extrajudicial killing of Bosnian Muslims. This charge 

was based on information indicating that in July 1995, the respondent and 

his subordinates took part in capturing 200 Bosnian Muslim men while 

patrolling a road near Konjevic Polje. These men were deliberately killed 

shortly thereafter. 

The Immigration Judge found that the respondent’s deliberate omission 

from his refugee application that he was a Special Police officer constituted 

a willful misrepresentation of a material fact under section 212(a)(6)(C)(i) of 

the Act. She also concluded that the DHS had shown by clear and 

convincing evidence that the respondent “assisted, or otherwise participated 

in” extrajudicial killing under section 212(a)(3)(E)(iii)(II) of the Act. 

Consequently, the Immigration Judge ordered the respondent removed from 

the United States. On appeal, we affirmed her decision that the respondent 

is removable as charged.3

 2 The respondent continues to refer to the organization in which he served as the “Ikonic 

National Guard Unit.” 3 In our April 6, 2011, decision, we remanded the record to allow the respondent to apply 

for deferral of removal. However, the respondent, who was represented by counsel, 

declined to apply for that form of protection. The Immigration Judge certified the case to 

us, and on July 12, 2011, we dismissed the respondent’s appeal from the Immigration 

Judge’s November 24, 2009, decision. In May 2012, the respondent was removed from 

the United States and extradited to Serbia to stand trial for opening fire on civilians on the 

Bratunac-Konjevic Polje road in 1995 and killing a wounded man a day later. However,

the prosecutor produced only one witness and the charges were dismissed in 2014.
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On remand, the Ninth Circuit has asked us to clarify our analysis in 

finding (1) that the respondent’s failure to disclose his service as a Serbian 

Special Police officer during the Bosnian War on his application for refugee 

status in 1999 was a material misrepresentation and (2) that he assisted in the 

extrajudicial killing of 200 Bosnian civilian men in July 1995. Radojkovic, 

599 F. App’x at 647–48. We will reaffirm our decision but will clarify our 

standard for determining when a misrepresentation is “material” under 

section 212(a)(6)(C)(i) of the Act. We will also adopt a standard for 

determining whether an individual has “assisted, or otherwise participated 

in the commission of . . . any extrajudicial killing” under section 

212(a)(3)(E)(iii)(II) of the Act.

II. ANALYSIS

A. Material Misrepresentation

For an Immigration Judge to find that an alien is inadmissible under 

section 212(a)(6)(C)(i) of the Act, there must be clear, unequivocal, and 

convincing evidence that the alien, “by fraud or willfully misrepresenting a 

material fact, seeks to procure (or has sought to procure or has procured) a 

visa, other documentation, or admission into the United States.” The 

respondent conceded that he was an officer in a Special Police unit during 

the war; that in July 1995, he and his unit were assigned to the Konjevic Polje 

road where 100 to 200 Bosnian Muslims surrendered to them; and that he 

lied about his employment on his Form I-590 refugee application. We must 

decide whether the respondent’s omission from his refugee application that 

he was a Special Police officer during the Bosnian War was a “material”

misrepresentation under section 212(a)(6)(C)(i) of the Act.

In Matter of D-R-, 25 I&N Dec. at 450–51, we concluded that this 

omission could have influenced the decision to grant him refugee 

status. Thus, we agreed with the Immigration Judge that the respondent’s 

concealment constituted a willful misrepresentation of a material fact. 

The Ninth Circuit held that we did not correctly apply the standard for 

determining the materiality of a misrepresentation set forth in Forbes v. INS, 

48 F.3d 439 (9th Cir. 1995).

4

 The court explained that this standard includes

 4 The Ninth Circuit’s decision in Forbes addressed an alien’s inadmissibility under 

former section 212(a)(19) of the Act, 8 U.S.C. § 1182(a)(19) (1976), based on the 

allegation that he neglected to disclose that he had been arrested and had pending criminal 

charges when he applied for a visa in 1977. That section provided for the exclusion of 

“[a]ny alien who seeks to procure, or has sought to procure, or has procured a visa or other 

documentation, or seeks to enter the United States, by fraud, or by willfully 

misrepresenting a material fact.”
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two inquiries: (1) whether the concealments have a “natural tendency to 

influence” the Government’s decision whether to admit the alien to the 

United States and (2) whether there is sufficient evidence to raise a “fair 

inference” that a statutory disqualifying fact actually existed. Radojkovic,

599 F. App’x at 647–48 (quoting Forbes, 48 F.3d at 442–43). Although the 

Immigration Judge applied both parts of the analysis in Forbes, the court 

noted that we “repeated the first part of the standard used in Forbes”—that 

is, the “natural tendency” test—“but omitted any reference to the second part 

of the standard”—namely, the “fair inference” test. Id. at 647. The court 

stated that it could not determine whether this omission was an oversight or 

a deliberate effort to craft a new legal standard to which the court should give 

deference. Id. at 647–48.

On remand, the DHS argues that we are not bound by the Ninth Circuit’s 

standard in Forbes because the term “material” in the Act is ambiguous. 

Pursuant to the tenets of deference set forth in Chevron, U.S.A., Inc. 

v. Natural Resources Defense Council, Inc. (“Chevron”), 467 U.S. 837 

(1984), and National Cable & Telecommunications Ass’n v. Brand X Internet 

Services (“Brand X”), 545 U.S. 967 (2005), the DHS contends that we should 

explicitly exercise our authority to define the term “material,” because we 

are the agency charged with administering section 212(a)(6)(C)(i) of the Act.

The United States Supreme Court has held that a circuit court must accord 

deference under Chevron to an agency’s interpretation of a statute unless 

“Congress has directly spoken to the precise question at issue” and 

congressional intent is clear. Chevron, 467 U.S. at 842. The agency’s 

interpretation of a statute applies, regardless of the circuit court’s contrary 

precedent, unless “the prior court decision holds that its construction follows 

from the unambiguous terms of the statute and thus leaves no room for 

agency discretion.” Brand X, 545 U.S. at 982; see also Holder v. Martinez 

Gutierrez, 132 S. Ct. 2011, 2017 (2012) (holding that the Board’s position 

on a statute “prevails if it is a reasonable construction of the statute, whether 

or not it is the only possible interpretation or even the one a court might think 

best”); Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir. 2009) (en 

banc) (concluding that the courts should accord Chevron deference to the 

Board because we exercise the “authority to ‘give[] ambiguous statutory 

terms “concrete meaning”’” (alteration in original) (citations omitted)); 

Matter of M-H-, 26 I&N Dec. 46, 49 (BIA 2012). 

1. “Material”

The term “material” is not defined in section 212(a)(6)(C)(i) or elsewhere 

in the Act, and the Ninth Circuit has not held that its meaning is unambiguous. 

Rather, in Forbes the Ninth Circuit looked to Kungys v. United States, 485 
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U.S. 759 (1988), for guidance. The issue in Kungys was whether a 

naturalized United States citizen should lose his citizenship—that is, be 

denaturalized—under section 340(a) of the Act, 8 U.S.C. § 1451(a) (1988), 

for making false statements on his visa and naturalization applications.5

 The 

Supreme Court held that the statute “contains four independent requirements: 

the naturalized citizen must have misrepresented or concealed some fact, the 

misrepresentation or concealment must have been willful, the fact must have 

been material, and the naturalized citizen must have procured citizenship as 

a result of the misrepresentation or concealment.” Id. at 767.

Because the denaturalization statute did not define the term “material,” 

the Court looked to the lower courts’ general understanding of that term in 

another context—namely, statutes criminalizing false statements to public 

officials. Id. at 769–70. The Court found that the “most common 

formulation of that understanding is that a concealment or misrepresentation 

is material if it ‘has a natural tendency to influence, or was capable of 

influencing, the decision of’ the decisionmaking body to which it was 

addressed.” Id. at 770 (emphasis added) (citation omitted). The majority 

opinion declined to further clarify the meaning of the phrase “natural 

tendency.” 

The majority of the Federal circuit courts appear to have adopted the 

“natural tendency” standard from Kungys as a general standard for defining 

the term “material” in a variety of contexts. Beyond the “natural tendency” 

standard, however, there is no consensus in the courts as to the interpretation 

of the term “material” in section 212(a)(6)(C)(i) of the Act, as we discuss 

more fully below. Thus, because the definition of “material” in this 

particular context is ambiguous, we may exercise our authority as the agency 

administering the statute to explain our construction of this term. 

2. “Fair Inference”

The Ninth Circuit took the second prong of its materiality test—the “fair 

inference” test—from Justice Brennan’s concurrence in Kungys. Justice 

Brennan agreed with the majority’s “natural tendency” test, but he added that 

“a presumption of ineligibility does not arise unless the Government 

produces evidence sufficient to raise a fair inference that a statutory 

disqualifying fact actually existed.” Kungys, 485 U.S. at 783 (Brennan, J., 

concurring) (emphasis added). 

Although it was first proposed in a concurrence, the “fair inference” test 

has been widely held to be controlling in the context of prosecutions 

 5 Section 340(a) of the Act provides for denaturalization when the certificate of 

naturalization and citizenship orders “were illegally procured or were procured by 

concealment of a material fact or by willful misrepresentation.”
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for unlawful procurement of citizenship or naturalization under 18 U.S.C. 

§ 1425(a) (2012). See United States v. Mensah, 737 F.3d 789, 808–09 (1st 

Cir. 2013); United States v. Latchin, 554 F.3d 709, 714 n. 4 (7th Cir. 2009) 

(listing cases).6

 However, since the Ninth Circuit’s remand, the Supreme 

Court issued Maslenjak v. United States, 137 S. Ct. 1918 (2017), which held 

that § 1425(a) does not require a material misrepresentation. Rather, in 

relevant part, § 1425(a) imposes a fine or imprisonment on a person who 

“knowingly procures, or attempts to procure, contrary to law, the 

naturalization of any person.” The Court concluded that the “causal inquiry” 

in § 1425(a) requires the Government to make a two-part showing. Id. at 

1928–29. First, it must “prove that the misrepresented fact was sufficiently 

relevant to one or another naturalization criterion that it would have 

prompted reasonable officials . . . to undertake further investigation.” Id. at 

1929. Second, the Government “need only establish that the investigation 

‘would predictably have disclosed’ some legal disqualification.” Id. (quoting 

Kungys, 485 U.S. at 774).

The Court in Maslenjak did not include or refer to Justice Brennan’s “fair 

inference” test. In fact, the Court opined, “A yet-stricter causal requirement, 

demanding proof positive that a disqualifying fact would have been found, 

sets the bar so high that ‘we cannot conceive that Congress intended’ that 

result.” Id. at 1930 (quoting Kungys, 485 U.S. at 777).

We decline to adopt or apply the Forbes “fair inference” test to questions 

of inadmissibility under section 212(a)(6)(C)(i) of the Act. First, although 

the Ninth Circuit assumed the test to be applicable in Forbes, other circuit 

courts have differed as to whether the “fair inference” test is applicable to the

question of the materiality of a misrepresentation. For example, the Seventh 

Circuit has opined that the test applies to the fourth step in the Supreme 

Court’s analysis of section 340(a) of the Act—that is, to determine whether 

a “naturalized citizen . . . procured citizenship as a result of the 

misrepresentation or concealment.” Latchin, 554 F.3d at 713 (emphasis 

added) (quoting Kungys, 485 U.S. at 767) (internal quotation mark omitted); 

see also United States v. Nguyen, 829 F.3d 907, 916–17 (8th Cir. 2016) 

(noting that the “fair inference” test was applied in Kungys to determine 

whether naturalization was “procured by” the misrepresentation, rather than 

whether the misrepresentation was “material”). 

Moreover, when considering the question of inadmissibility under section 

212(a)(6)(C)(i) of the Act, other circuit courts have not applied the “fair 

 6 The Ninth Circuit first referred to the “fair inference” test in United States v. Puerta, 

982 F.2d 1297, 1303–05 (9th Cir. 1992), a case that involved the prosecution of an alien 

for unlawful procurement of citizenship under 18 U.S.C. § 1425(a). The court in Forbes

cited Puerta without acknowledging that it was applying the test in a different context. 

Forbes, 48 F.3d at 443.
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inference” test. Although some refer to Kungys, they apply only the 

majority’s “natural tendency” standard. See, e.g., Toribio-Chavez v. Holder, 

611 F.3d 57, 64 (1st Cir. 2010) (“Toribio’s misrepresentation . . . was 

undoubtedly material, as it had the natural tendency to influence [the 

immigration official’s] decision not to probe further.”); Parlak v. Holder, 578 

F.3d 457, 465 (6th Cir. 2009) (“Because these misrepresentations clearly had 

‘a natural tendency to influence the decisions’ of the DHS, the [Board] 

correctly concluded that the misrepresentations were material.”) (citation 

omitted). 

The Eleventh Circuit has explained that “a heightened burden of proof

[under the fair inference test] is not appropriate in a prosecution that would 

not result in loss of citizenship.” United States v. Pirela Pirela, 809 F.3d 

1195, 1201 (11th Cir. 2015). In a decision rendered after Forbes, the Ninth 

Circuit also acknowledged that the “fair inference” test was based on the 

singular seriousness of the potential loss of citizenship. United States 

v. Alferahin, 433 F.3d 1148 (9th Cir. 2006). In that decision, the court held 

that “the Kungys decision established a more rigorous definition of 

materiality that is unique to the context of denaturalization proceedings.” Id.

at 1155 (emphases added). The court noted that Justice Brennan’s 

concurrence in Kungys “emphasized that ‘citizenship is a most precious right, 

and as such should never be forfeited on the basis of mere speculation or 

suspicion.’” Id. (quoting Kungys, 485 U.S. at 783–84 (Brennan, J., 

concurring)). 

Meanwhile, the Supreme Court has declined to decide whether its 

definition of the term “material” in denaturalization proceedings also applies 

when considering inadmissibility under section 212(a)(6)(C)(i) of the Act. 

Cf. Fedorenko v. United States, 449 U.S. 490, 509 (1981) (declining to 

decide whether the standard for materiality outlined in Chaunt v. United 

States, 364 U.S. 350 (1960), applies to false statements in visa applications). 

In other contexts, the Court has reaffirmed its conclusion in Kungys that a 

false statement is material if it has “a natural tendency to influence, or [is] 

capable of influencing, the decision of the decisionmaking body to which it 

was addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (alteration in 

original) (citation omitted) (relating to conviction for failure to report income 

on tax returns); see also United States v. Wells, 519 U.S. 482, 489 (1997).7

 7 We also note that after the Ninth Circuit remanded this case, the Supreme Court issued 

Universal Health Services, Inc. v. United States, 136 S. Ct. 1989 (2016). We asked the 

parties to submit supplemental briefs on what effect, if any, this ruling had on whether the 

respondent’s misrepresentation was material. In its decision, the Court stated that the term 

“material” is defined in the False Claims Act at 31 U.S.C. § 3279(b)(4) (2012), as “having 

a natural tendency to influence, or be capable of influencing” the relevant determination, 
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We conclude that the most reasonable reading of the Supreme Court’s 

decision in Kungys is that given by the Seventh and Eighth Circuits—

namely, that the “fair inference” test applies to whether the alien “procured” 

the immigration benefit by his misrepresentation, not to whether the 

misrepresentation is “material.” See Matter of Y-L-, 24 I&N Dec. 151, 159

(BIA 2007) (addressing materiality in the context of a frivolous asylum 

application and citing Kungys only for the “natural tendency” standard). 

We therefore decline to follow the “fair inference” test set forth in Forbes. 

Pursuant to Chevron and Brand X, we exercise our authority as the agency 

implementing section 212(a)(6)(C)(i) of the Act to define the term “material” 

and apply its definition, including in cases arising in the Ninth Circuit, to 

promote national uniformity in the interpretation of the Act.

We have already considered the definition of the term “material” in 

determining whether an alien was “excludable” under former section 

212(a)(19) of the Act, the precursor to section 212(a)(6)(C)(i). See Matter of 

Bosuego, 17 I&N Dec. 125 (BIA 1979; 1980). In that case, an Immigration 

Judge found that an alien had misrepresented certain material facts when she 

applied for a nonimmigrant transit visa in 1967. The Board ultimately 

reversed the Immigration Judge’s decision and terminated proceedings, 

because the record was unclear as to the effect of the misrepresentations on 

the consular officer’s decision to issue the visa. In so doing, we concluded

that “the materiality requirement . . . is satisfied if either (1) the alien is 

excludable on the true facts or (2) the misrepresentation tends to shut off a 

line of inquiry which is relevant to the alien’s eligibility and which might 

well have resulted in a proper determination that he be excluded.” Id. at 127. 

We further ruled that the Government must show that the facts “would have 

likely been uncovered and considered but for the misrepresentation,” and 

then the burden shifts to the alien “to establish that no proper determination 

of inadmissibility could have been made.” Id. at 131.

While the Tenth Circuit has viewed the Kungys and Matter of Bosuego

standards as distinct, Solis-Muela v. INS, 13 F.3d 372, 376 (10th Cir. 1993), 

other circuits have cited the two decisions together when considering 

materiality in this context. See, e.g., Mwongera v. INS, 187 F.3d 323, 330 

(3d Cir. 1999); cf. Monter v. Gonzales, 430 F.3d 546, 556–58 (2d Cir. 2005).8

 

 

using language previously employed by the Court in regard to other Federal fraud statutes. 

Id. at 2002. As the DHS points out, that definition is specifically included in the statutory 

language and therefore limits the applicability of this case to our decision. 8 Although the Second Circuit in Monter equated the seriousness of deportation with 

denaturalization and found that “Kungys provides the meaning of ‘procure’ for both 

statutes,” the court did not mention or adopt the “fair inference” test and, indeed, applied

both the “natural tendency” test and the burden-shifting test outlined in Matter of Bosuego

to establish that a proper determination of inadmissibility could not have been made. 

Monter, 430 F.3d at 556–58.
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We believe they should be read together. In other words, in our view, the 

question in Bosuego whether a misrepresentation “tends to shut off a line of 

inquiry which is relevant to the alien’s eligibility and which might well have 

resulted in a proper determination that he be excluded” leads to the same 

result as asking in Kungys whether the misrepresentation had “a natural 

tendency to influence, or was capable of influencing, the decision of the 

decisionmaking body.”

Thus, we adopt the Kungys “natural tendency” test as our general 

standard for determining whether an alien’s misrepresentation is “material”

under section 212(a)(6)(C)(i) of the Act. Specifically, we will consider 

whether the misrepresentation tends to shut off a line of inquiry that is 

relevant to the alien’s admissibility and that would predictably have 

disclosed other facts relevant to his or her eligibility for a visa, other 

documentation, or admission to the United States.9

 

Finally, we reaffirm our conclusion in Matter of Bosuego, 17 I&N Dec.

at 131, that after the DHS meets its burden of proof, the burden shifts to the 

alien “to establish that no proper determination of inadmissibility could have 

been made.” See, e.g., Maslenjak, 137 S. Ct. at 1930 (“Even when the 

Government can make its two-part showing, however, the defendant may be 

able to overcome it . . . [and should have] an opportunity to rebut the 

Government’s case . . . .”); Habib v. Lynch, 787 F.3d 826, 831–32 (7th Cir. 

2015) (stating that the alien could have rebutted the presumption that he 

acquired lawful permanent resident status as a result of his willful

misrepresentation of a material fact by proving that he was eligible for 

adjustment of status despite the misrepresentation); cf. Monter, 430 F.3d at 

557 (“[W]here an immigration court finds that an alien has made a material 

misrepresentation, the [Immigration Judge] must also determine whether that 

alien has rebutted the resulting presumption that he or she would have been 

removable if the true facts had been known . . . .”).

 9 We also note that the Court’s test in Maslenjak, 137 S. Ct. at 1922—whether the ensuing 

investigation “would predictably have disclosed” a legal disqualification—is taken from 

the majority opinion in Kungys: 

[T]he misrepresentation of [the date and place of Kungys’ birth in his naturalization 

petition] would have a natural tendency to influence the citizenship determination, 

and thus be a misrepresentation of material facts, if the true date and place of birth 

would predictably have disclosed other facts relevant to his qualifications. 

Kungys, 485 U.S. at 774 (emphasis added) (footnote omitted). In his concurrence, Justice 

Brennan specifically referenced and concurred with this test before adding his “fair 

inference” standard. See id. at 783.
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3. Materiality of the Respondent’s Misrepresentation

In determining that the respondent’s omission of his Special Police 

service from his asylum application was material, the Immigration Judge 

relied on the testimony of Todd Gardner, a Special Assistant with the 

Refugee Affairs Division of the United States Citizenship and Immigration 

Services. He testified that an asylum applicant’s failure to disclose police 

and military service during the Bosnian War would have prevented an 

appropriate line of inquiry regarding whether the person was barred from 

refugee status as a persecutor. He also stated that including this information 

would have prompted further questioning. In addition, he opined that the 

respondent’s omission was material insofar as the refugee officers in Bosnia 

were trained to address issues of human rights in Bosnia with applicants.

The Immigration Judge also relied on the testimony of Richard Butler, a 

Criminal Research Specialist at the Human Rights Violator and War Crimes 

Unit of Immigration and Customs Enforcement.10 Mr. Butler asserted that if 

an individual admitted to being a member of the police or military during the 

Bosnian War, his application would have been set aside for further review.

The respondent argues that because service with the army of the Republic 

of Srpska was not “in and of itself a ground of inadmissibility,” any 

misrepresentation regarding such service is not material. However, the 

“natural tendency” standard is not so stringent. In Kungys, for example, the 

Court concluded that while the alien’s true date and place of birth were not 

directly relevant to his citizenship application, they would have a “natural 

tendency” to influence the determination, even if they only “disclosed other 

facts relevant to his qualifications.” Kungys, 485 U.S. at 774. 

The evidence is much stronger here than in Matter of Bosuego, where the 

Government conceded that the alien’s admission as a nonimmigrant would 

not have been denied based on the misrepresented facts alone. In that case, 

we determined that the record contained “no reference whatever to other 

pertinent factors” that would have influenced the consul’s determination, and 

no attempt was made to “develop the relevant facts in existence when the 

respondent presented herself before the consul.” Matter of Bosuego, 17 I&N 

Dec. at 128. 

Accordingly, we conclude that the Immigration Judge made proper 

factual findings to determine that the respondent’s service in the Special 

Police would have had a “natural tendency” to influence the decision of the 

local asylum officers to approve his application. The omission shut off a line 

of inquiry relevant to the respondent’s eligibility for asylum. As the 

Immigration Judge found, if the respondent had revealed his service in the 

 10 Mr. Butler worked at the International Criminal Tribunal for the former Yugoslavia 

from 1997 to 2003. His work focused on the Srebrenica Massacre.
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Special Police, the resulting line of questioning would predictably have 

disclosed his involvement in the Bosnian conflict and his activities as a 

platoon leader, facts that are clearly relevant to his eligibility for asylum.

Further, the respondent was given ample opportunity to establish that he 

would have been admissible had the facts been disclosed. He was able to 

cross-examine both Mr. Butler and Mr. Gardner and to present his own 

testimony and evidence at the hearing. Both he and his daughter testified. 

The respondent did not produce evidence to rebut a showing by the DHS that 

his Special Police service was material to his asylum application. Thus, we 

conclude that he willfully made a material misrepresentation in procuring 

admission into the United States. The respondent is therefore inadmissible 

under section 212(a)(6)(C)(i) of the Act and removable under section 

237(a)(1)(A).11

B. Extrajudicial Killing

Under section 212(a)(3)(E)(iii)(II) of the Act, an alien is inadmissible” if 

he or she has “committed, ordered, incited, assisted, or otherwise participated 

in the commission of . . . under color of law of any foreign nation, any 

extrajudicial killing, as defined in section 3(a) of the Torture Victim 

Protection Act of 1991.”12 

The respondent admitted that he was the leader of the third platoon in the 

2nd Company Special Police Brigade of the Jahorina Training Center during 

July 1995. The 2nd Company was led by Nedjo Ikonic. About 25 Special 

Police officers served under the respondent’s command. His duties included 

 11 Moreover, as the Immigration Judge found, even under the Forbes standard, the 

respondent’s omission was material. In addition to the fact that the misrepresentation had 

a natural tendency to shut off a line of inquiry as to his activities during the Bosnian War, 

there is sufficient evidence to raise a “fair inference” that if the respondent had disclosed 

the extent of his participation in the Special Police, his asylum application would have been 

denied. As the Immigration Judge found, at the time the respondent applied for refugee 

status in 1999, the statutory language precluded such status for those determined to have 

persecuted others or committed genocide. Thus, our result would be the same if we 

followed Forbes and did not apply the principles of Chevron and Brand X in this case.

12 For purposes of this section, the term “extrajudicial killing” is defined as 

a deliberated killing not authorized by a previous judgment pronounced by a 

regularly constituted court affording all the judicial guarantees which are recognized 

as indispensable by civilized peoples. Such term, however, does not include any such 

killing that, under international law, is lawfully carried out under the authority of a 

foreign nation. 

Torture Victim Protection Act of 1991, Pub. L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1992).
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116

being a dog training instructor and training police officers to secure or guard 

roads and regulate traffic. His platoon was ordered to secure and guard the 

Konjevic Polje road at some point after July 12, 1995. The road was a key 

escape route for Bosnians during this period of the war.13 On July 13, about 

1,000 Bosnian men and boys surrendered to the respondent’s platoon along 

the road. They were then taken by convoy to a warehouse approximately 

2 miles away in Kravica and killed. Mr. Butler testified he believed that on 

July 13, 1995, members of the respondent’s platoon under his command 

captured prisoners who were later executed, but the respondent denies being 

present for this event. 

On July 16 or 17, 1995, the 2nd Company, including the respondent’s 

platoon, and two army units were ordered to perform a “sweep” of the area 

around the road, during which another 200 men were captured or 

surrendered. The respondent admitted that he was present when the men 

surrendered. He also admitted that the men were left with him and Nedjo 

Ikonic for approximately 30 minutes before being loaded onto buses. Dusko 

Jevic, the commander of the Jahorina Training Center, testified at the 

respondent’s removal hearing. He stated that he was responsible for the 

transportation of the men and that those under his command, including the 

respondent’s platoon, actually loaded the men onto the buses. The men were 

taken away and killed. 

In remanding this case, the Ninth Circuit found that we did not apply the 

court’s two-part test set forth in Miranda Alvarado v. Gonzales, 449 F.3d 

915 (9th Cir. 2006), for determining whether an alien had “assisted” in 

persecution under the “similarly worded” provisions known as the 

“persecutor bar” to asylum.14 Radojkovic, 599 F. App’x at 648. The court 

remanded “for further clarification regarding the relevance and applicability 

of the two-prong test established by Miranda Alvarado.” Id. 

1. Miranda Alvarado

The alien in Miranda Alvarado served as a language interpreter in Peru 

for interrogations of suspected Shining Path members. Miranda Alvarado, 

449 F.3d at 918. During these interrogations, the suspects were often 

 13 The respondent does not appeal the finding that he and the Special Police Brigade were 

acting “under color of law” during the relevant events. See Matter of D-R-, 25 I&N Dec. 

at 452.

14 Under sections 101(a)(42) and 208(b)(2)(A)(i) of the Act, 8 U.S.C. §§ 1101(a)(42) and 

1158(b)(2)(A)(i) (2012), an individual who has “ordered, incited, assisted, or otherwise 

participated in the persecution of any person” based on a protected ground is ineligible for 

asylum. These provisions are known as the “persecutor bar” to asylum. Matter of M-B-C-, 

27 I&N Dec. 31, 38 (BIA 2017).
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117

tortured, and he witnessed the torturous acts. He performed these interpreter 

services two to three times a month from 1982 to 1988. Id. The Immigration 

Judge denied his application for asylum because he “assisted in the 

persecution of others.” Id. at 920.

The Ninth Circuit determined that the statute did not define, in 

unambiguous terms, what is meant by “‘assist[ing], or otherwise 

participat[ing]’ in the persecution of others.” Id. at 921 (alterations in 

original). However, it declined to apply Chevron deference to our decision 

because we had affirmed the Immigration Judge’s decision, rather than 

issuing an opinion that had “the force of law.” Id. at 921–24. The court 

acknowledged that the Attorney General had subsequently issued a 

precedential opinion concerning the persecutor bar. Id. at 923 n.4 (citing 

Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005), remanded on other grounds,

Haddam v. Holder, 547 F. App’x 306 (4th Cir. 2013)). It nevertheless found 

that the “factual posture” of that case made it distinguishable and that “the 

more general principles” enunciated by the Attorney General were “fully 

consistent with” prior Ninth Circuit case law. Id.

The court then ruled that determining whether an alien assisted in 

persecution, “requires a particularized evaluation of both personal 

involvement and purposeful assistance in order to ascertain culpability.” Id.

at 927 (emphasis added). It looked to a footnote in Fedorenko, which “has 

since become the principal guide to interpreting persecutor exceptions 

generally.” Id. at 925. In that footnote, the Supreme Court stated:

[A]n individual who did no more than cut the hair of female inmates before they 

were executed cannot be found to have assisted in the persecution of civilians. On 

the other hand, there can be no question that a guard who was issued a uniform and 

armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to 

leave the concentration camp to visit a nearby village, and who admitted to shooting 

at escaping inmates on orders from the commandant of the camp, fits within the 

statutory language about persons who assisted in the persecution of civilians.

Id. at 925–26 (quoting Fedorenko, 449 U.S. at 512 n.34). The Ninth Circuit 

concluded that this footnote “indicated a continuum of conduct against which 

an individual’s actions must be evaluated so as to determine personal 

culpability.” Id. at 926 (emphasis added).

According to the court, in evaluating an alien’s conduct, it is necessary to

examine “the degree of relation [the alien’s] acts had to the persecution 

itself,” including whether the alien acted in self-defense, how long a period

of time the alien was involved in the acts, and what threats were used to 

compel assistance. Id. at 926–28. The court explained that its standard “does 

not require actual ‘trigger-pulling’” by the alien. Id. at 927 (quoting Matter 

of A-H-, 23 I&N Dec. at 784). With regard to the other end of the continuum,
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the court stated that an alien’s “‘[m]ere acquiescence or membership in an 

organization’ is insufficient to satisfy the persecutor exception.” Id. (quoting

Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004)).

The Ninth Circuit concluded that Miranda Alvarado had assisted in 

persecution because his “services were integral” to the persecution that 

occurred. Id. at 929. In reaching that determination, the court cited the 

Immigration Judge’s finding that without the alien’s services as an 

interpreter, “the interrogations could not proceed.” Id. at 928.

2. “Assisted, or Otherwise Participated in”

As the Ninth Circuit has recognized, the Act does not “spell out what is 

meant by” the phrase “assisted, or otherwise participated in.” Id. at 921. Our

survey of the Federal circuit court decisions reveals that interpretations of the 

phrase vary. However, there is some consensus that the Government must 

show evidence of (1) a nexus between an alien’s acts and the persecution or 

extrajudicial killing and (2) the alien’s scienter, or prior or contemporaneous 

knowledge of the effect of his actions. See Quitanilla v. Holder, 758 F.3d 

570, 577 (4th Cir. 2014); Abdallahi v. Holder, 690 F.3d 467, 476 (6th Cir. 

2012); cf. Suzhen Meng v. Holder, 770 F.3d 1071, 1074 (2d Cir. 2014).15 

Other circuits have not created a clear standard.16 

We conclude that the phrase “assisted, or otherwise participated in” under

section 212(a)(3)(E)(iii) of the Act is ambiguous. For the following reasons,

we decline to apply the standard outlined in Miranda Alvarado and will, 

 15 Unlike other circuits, the Second Circuit has outlined a four-part test for determining 

when the persecutor bar applies. Under that test, (1) “the alien must have been involved in 

acts of persecution”; (2) a “nexus must be shown between the persecution” and an 

enumerated ground; (3) if the alien “did not incite, order, or actively carry out” the 

persecution, then his or her conduct “must have ‘assisted’ the persecution”; and (4) “the 

alien must have sufficient knowledge that his or her actions may assist in persecution to 

make those actions culpable.” Balachova v. Mukasey, 547 F.3d 374, 384–85 (2d Cir. 

2008). In defining “assistance,” the court has contrasted conduct that is “‘passive in nature’

and ‘tangential’ to third-party acts of oppression,” with “‘active’ conduct, having ‘direct 

consequences for the victims.’” Suzhen Meng, 770 F.3d at 1075 (quoting Zhang Jian Xie 

v. INS, 434 F.3d 136, 143 (2d Cir. 2006)); accord Chen v. Att’y Gen. of U.S., 622 F. App’x 

155, 161–62 (3d Cir. 2015). The Eleventh Circuit has also ruled that the alien’s actions 

must be “active, direct and integral to the underlying persecution.” Chen v. U.S. Att’y Gen., 

513 F.3d 1255, 1259 (11th Cir. 2008).

16 The Eighth Circuit requires a “particularized evaluation” of the circumstances. 

Hernandez v. Reno, 258 F.3d 806, 813 (8th Cir. 2001) (citing Fedorenko, 449 U.S. at 512

n.34); see also Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir. 2005) (noting that “a 

distinction must be made between genuine assistance in persecution and inconsequential 

association with persecutors”).
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instead, exercise our authority to provide guidance on the definition of the 

term pursuant to Chevron and Brand X.

17

In constructing our standard, we begin by adopting the generally accepted 

premise, stated in Fedorenko, that there exists a “continuum of conduct 

against which an individual’s actions must be evaluated” in determining 

whether he “assisted, or otherwise participated in” extrajudicial killing. 

Miranda Alvarado, 449 F.3d at 926.18

We then look to the Attorney General’s decision in Matter of A-H-,

23 I&N Dec. at 783−85, which remains relevant precedent and sets forth 

some general principles for defining the phrase “assisted, or otherwise 

participated in” under the Act.19 The Attorney General quoted the dictionary

in stating that “[t]o ‘assist’ means ‘to give support or aid: help’” and “to 

‘participate’ means ‘to take part in something (as an enterprise or activity) 

usu[ally] in common with others.” Id. at 784. Surveying relevant case law, 

he further concluded that “these terms are to be given broad application.” Id. 

Finally, he found it appropriate to look at the “totality of the relevant conduct 

in determining whether the bar to eligibility applies.” Id. at 785.20

 17 As previously noted, the definition of the term “assisted, or otherwise participated in” 

can be applied in the context of the persecutor bar, as well as in this context. See sections 

101(a)(42), 208(b)(2)(A)(i) of the Act; Radojkovic, 599 F. App’x at 648. The phrase is 

also found in the exceptions to eligibility for withholding of removal under the Act. Section 

241(b)(3)(B)(i) of the Act, 8 U.S.C. § 1231(b)(3)(B)(i) (2012); see also Matter of J.M. 

Alvarado, 27 I&N Dec. 27, 27 (BIA 2017).

18 The Ninth Circuit also considered whether the alien acted in self-defense and whether 

threats were used to compel his assistance. Miranda Alvarado, 449 F.3d at 926–29. 

However, the respondent did not present any evidence of duress in these proceedings, and 

we do not now address whether there is a “duress” exception to any of the applicable 

standards. See Negusie v. Holder, 555 U.S. 511, 522–24 (2009) (remanding for a decision 

whether the persecutor bar contains a duress exception). 19 In Haddam, 547 F. App’x at 313, which remanded Matter of A-H- on other grounds, the 

Fourth Circuit expressed concern about the implication that verbal approval of an act after 

the fact, or subsequent membership in a group that had committed atrocities, would be 

sufficient to establish assistance or participation in persecution. The court concluded that 

“the persecutor bar only applies in cases where there is a causal nexus between the [alien’s] 

behavior and instances of persecution.” Id. at 310.

20 In Matter of D-R-, 25 I&N Dec. at 454–55, we relied on these guidelines and ultimately 

based on our decision on a set of factors, including the respondent’s “command 

responsibility, his presence, his platoon’s active participation, and the finding that he must 

have been aware that mass killings of other similarly situated Bosnian Muslims were 

ongoing at this time, particularly the nearby mass execution at the Kravica warehouse 

several days earlier.” Addressing the respondent’s “command responsibility,” we quoted 

the relevant language in the United States Senate Report for the proposed Anti-Atrocity 

Alien Deportation Act of 2003, S.710, 108th Cong. (2003), which explained the role of 

command authority as a form of assistance or participation in persecution. Id. at 452–53.
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120

We conclude that in constructing a more specific test for determining an 

alien’s assistance and participation, the most practical and useful standard is 

one that considers (1) the nexus between the alien’s role, acts, or inaction, 

and the extrajudicial killing; and (2) his scienter, meaning his prior or 

contemporaneous knowledge of the killing. 

In regard to nexus, we agree with the Ninth Circuit that if the alien did 

not have “direct personal involvement,” an important factor is “the degree of 

relation [the alien’s] acts had to the persecution itself.” Miranda Alvarado, 

449 F.3d at 927−28. It is less helpful to contrast “active” with “passive” 

participation, because there appears to be a general understanding that some 

conduct that can be viewed as “passive,” like guarding prisoners, is sufficient 

assistance or participation. Rather, we look at whether the alien’s role was 

material or integral to the killing—or, as the DHS argues, whether the alien’s 

role “contributed” to the ultimate harm. We also agree with the Ninth 

Circuit’s ruling that “‘[m]ere acquiescence or membership in an 

organization’ is insufficient” to establish culpability. Id. at 927 (citation

omitted).

Scienter also plays a role in many of the Federal circuit decisions on the 

issue. The Ninth Circuit did not discuss scienter in Miranda Alvarado, but 

the alien in that case was present in the room during the persecution.21 We 

agree with the Fourth and Second Circuits that “the evidence need not show 

that the alleged persecutor had specific actual knowledge that his actions 

assisted in a particular act of [extrajudicial killing].” Quitanilla, 758 F.3d at 

577 (quoting Xu Sheng Gao v. U.S. Att’y Gen., 500 F.3d 93, 103 (2d Cir. 

2007)). Rather, “the alien must have had ‘sufficient knowledge that [his or]

her actions may assist in [extrajudicial killing] to make those actions 

culpable.’” Suzhen Meng, 770 F.3d at 1074 (citation omitted). Thus, direct 

proof of actual knowledge is not required. Instead, the alien must have 

sufficient knowledge that the consequences of his actions may assist in acts 

 21 The progeny of Miranda Alvarado have considered an alien’s scienter when considering 

the culpability of those who are physically removed from the persecutory acts. See, e.g.,

Angel v. Lynch, 637 F. App’x 397, 398 (9th Cir 2016) (“He arrested guerrillas and 

conducted initial interviews with them; he then turned the guerrillas over to his superiors, 

knowing his superiors would torture them.”); Aguilar v. Lynch, 621 F. App’x 443, 444–45

(9th Cir. 2015) (concluding that the alien knew “that one of the targets of his surveillance 

disappeared and is presumed dead. . . . [He] also heard his superiors order task force 

members to torture someone whom the task force had abducted. This level of knowledge 

and participation establishes the degree of ‘individual accountability’ required to affirm the 

[Board’s] determination.”); Ochoa v. Holder, 340 F. App’x 420, 422 (9th Cir. 2009) (“As 

a Guatemalan police officer, [the alien] arrested individuals knowing that some of them 

would be tortured. Further, he recorded statements from detainees who had been tortured, 

and whose statements were given as a result of this torture.”).
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of extrajudicial killing. The fact finder may look to direct or circumstantial 

evidence in the record to determine whether the alien had sufficient 

knowledge that his conduct may have assisted acts of extrajudicial killing.22

None of the above disturbs our discussion of “command responsibility” 

in Matter of D-R- or our subsequent decision in Matter of Vides-Casanova, 

26 I&N Dec. 494 (BIA 2015). An individual in a position of authority over 

the perpetrators of extrajudicial killing or persecution, such as a military 

commander, may be held accountable for failure to prevent his subordinates 

from committing such acts. A person with command responsibility may also

be responsible for any failure to investigate or punish his subordinates when 

the evidence demonstrates that he knew they were involved. However, in

analyzing the respondent’s assistance and participation in the extrajudicial 

killings in this case, we need not rely on his command responsibility to 

support our decision.

3. Application to the Respondent

The respondent admitted that he and his unit were stationed at the road 

near Konjevic Polje during the relevant days in July 1995. The Immigration 

Judge did not clearly err in finding that the respondent’s Special Police unit 

was under the control of the military of the Republic of Srpska during that 

mission with Ikonic’s company. 

The mission of the respondent’s platoon was to “secure” the road, and 

they conducted at least one “sweep” on July 16 or 17, which resulted in the 

capture or surrender of about 200 Bosnian Muslim men. The respondent 

admitted that the men were left with him and Nedjo Ikonic for approximately 

30 minutes before being loaded on to buses. The Immigration Judge found 

that the record supported a conclusion that the respondent assisted in loading 

those individuals onto the buses. The respondent’s attorney stipulated that 

the 200 men captured on that day were killed. 

There is a sufficient nexus between the actions of the respondent and the 

extrajudicial killings. Although he was not present when the Bosnian 

Muslims who were captured by his unit were killed, he had custody of the 

men and assisted in loading them onto the buses that would take them to their 

deaths. Our conclusion is consistent with court decisions examining similar 

circumstances. For example, the Fourth Circuit decided that the persecutor 

bar applied to a sergeant who “oversaw the investigation and capture 

of twenty to fifty civilians and guerillas [and] then turned those captives over 

to his military superiors, where the prisoners were, according to the 

country reports, ‘routinely interrogated, tortured and sometimes killed.’” 

 22 A persecutor’s knowledge of the consequences of his actions is not excused if he or she

is willfully blind to the facts and circumstances. 
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Quitanilla, 758 F.3d at 577. In so ruling, the court noted that “those who 

take custody of or transport individuals for the purpose of persecution may 

be subject to the persecutor bar.” Id. (citing Xie v. INS, 434 F.3d 136, 143 

(2d Cir. 2006)); see also Singh v. Gonzales, 417 F.3d 736, 740 (7th Cir. 2005)

(“For his part, [the alien] took innocent Sikhs into custody during that period 

and transported them to the police station, where he knew they would be 

subjected to unjustified physical abuse.”).

The respondent’s role in these killings appears more direct than that of 

the alien in Miranda Alvarado. As the Ninth Circuit noted, 

Miranda was not in a position of authority with regard to planning or inciting the 

interrogations; he did not directly apply the electric shocks or beatings; he did not 

supply the physical compulsion that allowed the torture to occur, as do armed guards; 

and he did not, forcibly or otherwise, arrest the victims or bring them to the place of 

torture.

Miranda Alvarado, 449 F.3d at 929 (emphasis added). 

The respondent also had the requisite scienter—or prior or 

contemporaneous knowledge—that the 200 Muslim men were being 

transported to their deaths. While the respondent claimed that he was never 

in Kravica and did not know anything about the prior transportation of 

captured Bosnians and their killings, the Immigration Judge concluded that 

his claim was implausible based on the other evidence in the record. We find 

no clear error in this determination.23 

We adopt and incorporate our determinations in Part II, section B, of 

Matter of D-R-, 25 I&N Dec. at 451−56, concerning the Immigration Judge’s 

factual findings on this issue. For example, Mr. Butler testified that when 

the sweep on July 16 or 17 took place, it was already known that the Serbian 

military and Special Police were carrying out mass executions of Bosnian 

Muslims and that other military police had admitted having such knowledge. 

Moreover, the written evidence demonstrates that those posted on the 

Konjevic Polje road would have been aware not only of the transport of 

prisoners to mass executions because of troop movements and buses along 

the road but also of the killings at the nearby Kravica warehouse. 

Additionally, there is evidence that noncombatants were killed on the spot 

when they emerged from the woods bordering the road. 

 23 The respondent continues to assert on remand that when the “100 to 200 Bosnian 

Moslems armed with weapons and dressed as soldiers[]surrendered to the three units under 

the command of Nedjo Ikonic” (including his unit), he and his colleagues “called the 

military to ask what to do with the prisoners,” and “the military arrived in buses several 

hours later and took away the soldiers who had surrendered.” The respondent further 

asserts that “[s]everal days later and unbeknownst to [him], it is believed that the Moslems 

were killed by the military.”
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The Immigration Judge made reasonable inferences from the totality of 

the record to conclude that the respondent assisted in the commission of 

extrajudicial killings because he had sufficient knowledge that the 200 

Bosnian Muslims would be killed unlawfully. That determination was based 

on the respondent’s role, responsibilities, and actions at the time. Thus, the 

Immigration Judge did not clearly err in making these factual findings. See 

Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 215 (BIA 2007) (finding no 

clear error in the Immigration Judge’s fact-finding as to alleged persecutors’

motives); Matter of S-P-, 21 I&N Dec. 486, 490 (BIA 1996) (noting that the 

motivation of the persecutor “involves questions of fact”).24 We therefore

reaffirm the Immigration Judge’s determination that the respondent is 

removable under section 237(a)(4)(D) of the Act.

III. CONCLUSION

The respondent is inadmissible under section 212(a)(6)(C)(i) of the Act

because his failure to disclose that he was a Special Police officer during the 

Bosnian War on his application for refugee status was a misrepresentation of 

a material fact that tended to shut off a line of inquiry relevant to his 

eligibility for asylum. He is also removable under section 237(a)(4)(D) of 

the Act because he assisted or otherwise participated in extrajudicial 

killings under section 212(a)(3)(E)(iii)(II). The Immigration Judge therefore 

properly ordered his removal from the United States. Accordingly, the 

respondent’s appeal will be dismissed. 

ORDER: The appeal is dismissed. 

 24 The result would be the same under the Ninth Circuit’s Miranda Alvarado standard. 

The respondent had the requisite “personal involvement,” because his platoon accepted the 

surrender of the 200 men, he had physical custody over them, and he assisted in loading 

them on to the buses. He also demonstrated “purposeful assistance” since his actions were 

material to the extrajudicial killing of those men. See Kumar v. Holder, 728 F.3d 993, 

998–99 (9th Cir. 2013) (“Regarding the first factor of Miranda Alvarado, personal 

involvement in alleged persecution, we examine whether the [alien’s] involvement was 

active or passive. . . . Second, to determine whether the [alien] purposefully assisted in the 

alleged persecution, we examine whether [his] acts were material to the persecutory end.”).