Interim Decision #1514

MATTER OF VEGA

In Deportation Proceedings
A-14226562

Deoidedby Board October 18,1965
Absent substantial equities, adjustment of status under section 245, Immigration and Nationality Act, as amended, is denied, as a matter of discretion, to an alien from a nonquota country who prior to, and shortly after,
his arrival in the United States secured documents needed to support his
application for adjustment of status, since he sought and gained entry into .
this country with a preconceived intention to establish permanent residence

here.
Csisaaa:

(Matter of Barrios, Int Dee. No. 1264, distinguished.)
.

Order: Act of 1952--SeCtion 241(a) (2) [8
longer—visitor.

U.B.O.

1201(a) (2)3—Remained

An order entered by the special inquiry officer on March 18, 1965
grants the respondent's application for a change of status to 'that of
a permanent resident alien under the provisions of section 245 of the
Immigration and Nationality Act (8 U.S.C. 1255). The trial attorney appeals from this decision_ Re excepts to the conclusion
that relief under section 245 (supra) is warranted in this case.

The respondent, a native and citizen of El Salvador, unmarried,
41 years of age, last entered the United States through the port of
San Ysidro, California on or about April 25, 1964. He was admitted
as a temporary visitor and thereafter authorized to remain in the
United States in that status until August 10, 1964. He was granted
permission-to depart voluntarily from the United States on or before
December 2, 1964. He has remained in the United States subsequent to December 2, 1964 and he concedes that he is deportable as
charged hr the order to show cause.
The only issue presented by the case is whether the respondent's application for status as a permanent resident alien under section 245

of the Immigration and Nationality Act merits the favorable exercise of the Attorney General's discretion. The record discloses
that the respondent applied for a nonimmigrant visa in October
337

Interim. Decision #1514
of 1962 but his application Was denied by the consul in El Salvador.
The respondent in April of 1961 again applied for a nonimmigrant
visa. He presented to the consul on this occasion letters which misrepresented his employment status in El Salvador (Ex& 4 & 7). He
°kilned a police clearance letter prior to his departure from El Salvador and submitted it with his application for an adjustment of
status. A birth certificate, issued in El Salvador on May 5, 1964
within 10 days after his entryoras also submitted.
The respondent denied that he had any intention of remaining
permanently in the United States at the tiine he secured his nonimmigrant visa_ He testified that. it was about a month after his
arrival that he decided to apply for an adjustment of status tcrthat
of a permanent resident alien. The trial attorney maintains that
the record does not support the respondent's claim that he entered'
as a bona Me nonimmigrant.
The special inquiry officer concedes that there is no particular
merit to the respondent's application. fer relief under ,section 245
of the Immigration and Nationality Act. He granted relief on the
basis of a conclusion that our decision in Matter of Barrios (Int.
Dec. No. 1264, BIA, .Tanuary 22, 1963) put the burden of establish. ing that the alien does not qualify for permanent resident status
upon the Service when the Service makes no attempt to controvert
the testimony of the alien that he was a bona. Me nonimmigrant at
the time, of entry.
We do not agree with the special inquiry officer in this regatta.
Our decision to grant relief in the Barrios case was limited to the
facts of that partiCular case. Barrios entered the .United States
as a nonimmigrant fully cognizant of the fact that he could not
remain permanently unless p4rmittar1 to do so lawfully. We folind
no intention on the part of Barrios to circtimvent the normal consular procedures far the issue of a visa to enter the United States for
permanent residence.
The facts of the instant ease are similar to those before 'us in
Matter of Garda-Castillo, Int. Dec. No. 1335, BIA, April 30, 1964. 1
Garcia-Castillo, was denied a nonimmigrantThisrepondt,a
visa upon his first application. On his second application. he
presented a letter which misrepresented his employment status in
El Salvador. The fact that this respondent made arrangements to
secure documents needed to support his application for an adjustment of status prior to and shortly -after his arrival in the United
3- The Board of Immigration Appeal'• decision denying relief under section
245 affirmed Castillo v. Immigration. and' Naturalization Service,
#19, '123,

Q.A. 9, August *3, 1965.

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•

Interim Decision 40514 -

-States establishes to our satisfaction that he sought and gained
entry into the United States with a preconceived intention to
establish permanent residence here.
We said- in the Garcia-Castillo ease (supra) that the bona fides
nonof an applicant for relief under section 245 in securin g
immigrant visa is a persuasive factor in the exercise of the Attorney
General's discretion. We have also said that an affirmative shoWing
that an alien secured a nonimmigrant visa in order to avoid a
consular function doei -not bar every applicant for relief under
section. 245 since conceivably there are instances where substantial
equities may intervene and warrant favorable action as a matter
of discretion. Matter of Rubio-Vargas, hit. Dec. No. 1466, BIA,

May 4, 1965. We find no such equities in the case now before us.
Discretionary action by its very nature permits wide latitude to
the authority charged with its exercise. When such authority, is
bound by hard and fast rules or criteria then its action cannot be
said to be truly discretionary. This Board has final jurisdiction
where there is an appeal from a denial of an application for a
change of status filed pursuant to 8 CFR 242.17 (8 OFR 3.1 (b) (2)).
Notwithstanding this and recognizing the fact that k.bur precedent
decisions are binding upon the special inquiry officer, nevertheless
we believe that the special inquiry officer must base his conelnaions
-where a matter of discretion is concerned on. an evaluation of all
the facts and circumstances of the particular case before him and not
on the basis of whether his interpretation of a precedent decision
circumscribes his individual judgment.
We will sustain the appeal of the trial attorney; and, since on
this record the respondent appears to be eligible for voluntary departure, we will grant him this privilege. An appropriate order
will be entered.
ORDER: It is ordered that the outstanding order be withdrawn
and the alien be permitted to depart from the United States voluntarily without expense to the Government, to any country of his
choice, -Within such period of time and under such conditions as the
officer-in-charge of the District deems appropriate.
/t is further ordered that if the alien does not depart_ from the
United States in accordance with the foregoing, an order of deportation be entered and executed-and he be deported to El Sa.va,dor.

•339


Interim Decision #1640

llfk.r.uat or DEVINTAk
In Visa. Petition Proceedings
A-19870799
Decided by Acting District Director June 6, 1968
Notwithstanding beneficiary does not possess a baccalaureate degree in organic
chemistry, his high education. a master's degree received from a university
in the United States, coupled with his extensive specialized experience in
the chemical industry qualifies him for professional status as an organic
chemist; therefore, a petition to accord him preference classification under
section 203(a) (3), Immigration and Nationality Act, as amended by
P.L. 89-236, as an organic chemist, Is approved.

The petitioner, Standard Products Company, Cleveland, Ohio,
seeks to employ an organic chemist to originate and modify vinyl
compound formulations and to advise as to quality control on-production and raw material purchases. The company, established in
1936, is .a. large marmfacturer of molded and extruded rubber and
plastic automotive parts,, that employs an average of 280 persons,
and has annual gross sales in excess of twelve million dollars.
The petitioner requires an organic chemist to set up a vinyl dry
blending process for economic advantages. The petitioner attempted
for six months to locate a suitable chemist with experience in vinyl
dry blending processing.'
The beneficiary is an unmarried, 33-year-old native of Pakistan
and citizen of India. He was admitted to the United States as a
nonimmigrant student. Evidence has been presented that he received
a bachelor of science degree from the University of Bombay, India,
in April 1957, where his major field of study was in chemistry.
The Office of Education, Department of Health, Education, and
Welfare, has stated that in their opinion this degree is the equivalent of two years of college credit in the United States. The Wm. Aciary also received a master of business administration degree from
Xavier University, Cincinnati, Ohio, in January 1965. From March
1954 to July 1958, he was employed as a' process plant operator by
the Standard Vacuum Oil Company (ESSO), Bombay, India, eon800

Interim Decision 41640
ducting laboratory tests on gasoline, kerosene, and naphtha; from
September 1958 to June 1963, as assistant plastics chemist by the
Continental Rubber Company, Hannover, Germany, in plasticized
polyvinylchloride formulation, cellular polyv.kyldhloritle production

methods, glass-fiber-reinforced plastics, and silicone rubber processing studies; and from February 1965 to the present date, by the
petitioner, as an organic chemist in the formulation of vinyl plastics.
In February 1966, the beneficiary was elected a Member of the
American Chemical Society.
Under section 203(a) (3) of the Immigration and Nationality Act,
third preference quota status may be accorded to "qualified immigrants who are members of the professions."

Section 101(a) (32) of the Act, as amended, states the term "profession" shall include, but not be limited to, architects, engineers,
lawlreisf physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. Recognition of professional status normally is attained through completion of high
education, sometimes followed by licensure or other similar official
permission to practice a profession. A combination of high education and specific job experience can qualify a person for professional
status in an occupation for which he does not possess a baccalaureate degree.
In accordance with Part 204.2(f), Title 8, .Code of Federal Regulations, Form ES-575A, Statement of Qualifications of Alien, was
referred to the Bureau of Employment Security of the Department
of Labor for a determination as to whether the certification required.
by section 212(a) (14) of the Act should be issued. The labor certification was issued., and the Form ES-575A was returned to this
office by the Bureau of Employment Security. Subsequently, the
labor certification was resubmitted to the Bureau of Employment
Security, Niith a request for an opinion as to whether the beneficiary
should be considered a member of the professions based on his
education and his experience in the chemical industry. '
In its reply, the Bureau of Employment Security stated that
pursuant to its study of the evidence of the beneficiary's qualifications, the Bureau was of the opinion that his education, coupled
with his extensive specialized experience in. the chemical industry,
qualified him for the position of organic chemist This office concurs in the Bureau's advisory opinion and has concluded tliat, as a
qualified organic chemist, the beneficiary is entitled to classification
as a "member of the professions" within the meaning of section
203 (a) (3) of the Immigration and Nationality Act, as amended.
ORDER: It is ordered that the petition be approved.
801


Interim Decision *1798

MATTER

or Itrmo-Din

In Exclusion Proceedings
A-13312077
Decided by Board September 29, 1967
Applicant, admitted founder and spokesman or enter or propaganda or the Cuban
Nationalist Association, who has been active in Canada and has condone?or
encouraged such activity in the United States, Is inadmissible under section
212(a) (27) of the Immigration and Nationality Act as one who seeks to enter
solely,- principally or incidentally to engage in activities prejudicial to the
public interest, and under section 212(a) (29) of the Act as one who; after
entry, probably would engage in activities subversive to the national security.
11.R.O. 1182(a) (27)1 Seeks
to enter the United States solely, principally or
incidentally to engage in activities which would be
prejudicial to the public interest, or endanger the
welfare, safety or security of the 'U.S.
Act of 1952--Section 212( a) (28) (F) (8 U.S.C. 1182 (a) (28) (F) 3—
Advocates and is a member of organization
(Cuban Nationalist Association) which advocates
(a) the duty, eta., of the unlawful accaniting or
killing of any officer, etc., of an organized government, because of official character, (b) unlawful
damage, injury or destruction of property.

Mconarnentu: Act of 1952—Section 212(a)(27)

—

Act of 1952—Section 212(a) ( 20 ) IS U.S.C. 119200(29)1—After

entry, probably would engage in activities subversive to the national security.
ON BEHALF OP SEEVIOE:

ON BEHALF OP A.VPLIOANT :

Irving A. Appleman
Appellate Trial Attorney

Gino P. Negrettl, Esquire
912 Congress Building
Miami, Florida 33182
and
Jack King, Esquire
1150 S.W. 1st Street
Miami, Florida 35130

(Brief Sled)

The case comes forward on appeal from the order of the special
inquiry officer entered July 11, 1967 finding the applicant excludable
on all of the grounds stated above and ordering him excluded and deported from the United States.

475
821-651-59----32

Interim Decision #1798
The applicant is a native and citizen of Cuba, 43 years old, male,
who arrived in the United States on December 24, 1962 and was admitted on parole under the provisions of section 212(d) (5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d) (5). His parole was
revoked on May 12, 1961. He was then referred to a special inquiry
officer for a hearing in exclusion proceedings pursuant to section 236 of
the Immigration and Nationality Act, 8 U.S.C. 1226. A challenge to
the propriety of exclusion proceedings was made by the applicant who
claimed he made an entry subsequent to his parole into the United
States, having departed from the United States by boat on October
10, 1966, proceeded to Cuba, and then reentered without inspection
on October 15, 1966. The special inquiry officer on June 2, 1967 denied
the applicant's motion for termination of the exclusion proceedings

on the ground of want of jurisdiction. This Board on June 26, 1967
dismissed the appeal from the special inquiry officer's decision on the
preliminary question of jurisdiction and remanded the case for a determination on the merits.
Under the provisions of section 291 of the Immigration and Nationality Act the burden of proof is upon the applicant for admission to
establish that he is not subject to exclusion under any provision of the
Act. Counsel concedes that the burden is upon the applicant to establish that he is not excludable from admission to the United States.
He maintains in connection with the appeal that the decision of the
special inquiry officer is contrary to the law and the evidence of the
case. The burden of proof never shifts and is always on the applicant;
and where the evidence is of equal probative weight, the party having
the burden of proof cannot prevail. Matter of .51—, 3 I. & N. Dec. 777,
781. It follows that the applicant must establish admissibility by at
least a preponderance of the evidence.
The special inquiry officer has written a long and exhaustive opinion
setting forth the evidence in almost microscopic detail. In addition,
the appellate trial attorney has filed an extensive brief. It is believed
that no purpose would be served in restating the contents of the decision of the special inquiry officer or of the brief of the appellate trial
attorney. The applicant is the admitted founder of the Cuban Nationalist Association. He maintains his anti-Castroite and anti-Communist
declarations and activities were expressions of his opinions and as a
spokesman or chief of propaganda of the group. However, it is concluded on the basis of the testimony of the agents of the Federal
Bureau of Investigation, the applicant's own testimony and activities,
and other evidence contained in the record that it has been established
that the applicant is comprehended within the proscription of sections 212(8) (27) and 212(a) (29) of the Immigration and Nationality
476

Interim Decision #1798
Act. Inasmuch as we sustained these two grounds of inadmissibility,
we make no finding with respect to the second ground of inadmissibility under section 212 (a) (28) (F) of the Immigration and Nationality Act based on his advocacy and membership in an organization, the
Cuban Nationalist Association (C.N.A.) because of the evidence relating to autonomous cells.
The applicant has never been admitted to the United States for permanent residence, but was admitted on parole which has been revoked.
In the same circuit in -which the present case arises, the court has held
that there is no right to a hearing on revocation of parole. 1
There is a paucity of legislative history and persuasive precedent
on the meaning and scope of the so-called subversive provisions of the
Immigration and Nationality Act. Paragraphs (27), (28) and (29) of

section 212(a) incorporate the provisions of section 1 of the Act of
October 16, 1918 as amended by section 22 of the Subversive Activities
Control Act of 1950 relating to the exclusion of subversives. Section
22 of the 1950 Act had been rewritten to strengthen the provisions of
the Act of October 16, 1918. The 1952 Immigration and Nationality
Act was designed to greatly strengthen the law as a means of barring
from this country those who would engage in activities subversive to
the national security.'
In recent years, the thrust of these exclusions contained in the Act
of February 5, 1917, the Act of October 16, 1918, the Act of June 28,
1940 and section 22 of the Internal Security Act of 1950 had been
directed almost exclusively against the Communist threats However,
the 1952 Act broadened the scope of the interdiction of paragraphs
(27), (28) and (29) of section 212(a). The Congress has plenary and
unqualified power to determine what classes of aliens may be permitted
to enter the United States.;
While the actions of the applicant would undoubtedly arouse the
sympathy of many United States citizens and would be popular with
many opposed to Castro and what he represents, it is nonetheless true
that his activities would appear to violate the proscriptions contained
in sections 212(a) (27) and (29) of the Immigration and Nationality
Act. The applicant has been active in Canada and has condoned and
encouraged similar action in the United States. There is reasonable
Ahrens v. Rojas, 292 F. 2d 408 (5th Cir., 1961), a decision contrary to the
holding in U.S. eat ret Paktovorics v. Murff, 260 F. 2d 010 (2d Oir., 1958).
Zewite Report No. 1515 (81st 'Gong., 241 Seas. 1950), 800.

Gordon and Rosenfield, Immigration Law and Procedure (1966 ed.), 2-222.
THE CHINESE EXCLUSION CASES (Chae Chan Ping y. United States,180
U.S. 581 (1889) ; Po? .Young Yo v. United States, 185 U.S. 200 (1902);
2

`

Shaughnessy v. /Wesel, 545 U.S. 200 (1950) ).

977

Interim Decision #1798
ground to conclude that he would continue such prohibited activity in
the United States and that he seeks entry solely, principally or incidentally to engage in activity prejudicial to the public interest. The
appeal will be dismissed.
ORDER : It is ordered that the appeal be dismissed and that the
alien be excluded solely on the first and third grounds set forth in the
caption.

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Cite as 28 I&N Dec. 330 (BIA 2021)

Interim Decision #4023

Matter of O-R-E-, Respondent
Decided July 21, 2021
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Immigration Judges and the Board lack the authority to recognize the equitable defense
of laches in removal proceedings.
(2) The 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 section 212(a)(6)(C)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), and he is
therefore removable under section 237(a)(1)(A) of the Act, 8 U.S.C. § 1227(a)(1)(A)
(2018).
(3) The evidence indicates that the 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 section
212(a)(3)(E)(ii) of the Act.
FOR RESPONDENT: Matthew Lytle Benson, Esquire, Cincinnati, Ohio
FOR THE DEPARTMENT OF HOMELAND SECURITY: Colleen A. Peppard, Assistant
Chief Counsel
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge;
CREPPY and PETTY, Appellate Immigration Judges.
PETTY, Appellate Immigration Judge:

The respondent is a native and citizen of Rwanda who was admitted to
the United States as a refugee in 1996. Believing the respondent to have
misrepresented certain personal details which obscured his role in the 1994
Rwandan genocide, the Department of Homeland Security (“DHS”) initiated
removal proceedings against him in 2019. An Immigration Judge found the
respondent removable because he was inadmissible at the time of entry,
concluded that the respondent failed to establish eligibility for any form of
relief or protection from removal, and ordered him removed to Rwanda.
Discerning no error, we will dismiss the respondent’s appeal.

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Interim Decision #4023

I. FACTUAL BACKGROUND
The respondent fled Rwanda in the midst of the 1994 genocide. The civil
war leading up to the genocide began in the early 1990s but was the
culmination of decades of conflict. While the origin of the ethnic
classification is subject to some dispute, the population of Rwanda has in
recent times been divided into three ethnic groups: the Hutu, the Tutsi, and
the Twa.
Sixty years ago, the Hutu majority overthrew the
Belgian-supported Tutsi monarchy and established a republic in Rwanda.
Many Tutsis went into exile, including in Uganda, where the Rwandan
Patriotic Front (“RPF”) was established. The paramilitary arm of the RPF
invaded Rwanda in 1990. Following a series of armed engagements, the
1993 Arusha Accords between the RPF and the Hutu-dominated National
Republican Movement for Development (known by its French acronym,
MRND), allowed the RPF to participate in Rwandan governance. This
arrangement was disfavored by MRND hardliners, who sought to deny the
RPF any role in government.
Ultimately, the hardliners split from the moderate MRND members who
had supported the Arusha Accords. On April 6, 1994, a plane carrying the
President of Rwanda and MRND leader Juvénal Habyarimana was shot
down. The MRND hardliners immediately took control of the Rwandan
Government and set up roadblocks in Kigali for the purpose of identifying
Tutsis. The Rwandan Army—now under the control of the hardliners—
fought the RPF, while a civil militia organized by the MRND, called the
Interahamwe, committed genocide against the Tutsi civilian population. The
genocide continued until July 1994, when the RPF secured a military victory
over the MRND. By that time, between 750,000 and 1 million Rwandans
had been killed, including three-quarters of Rwanda’s Tutsi population. See
generally Munyakazi v. Lynch, 829 F.3d 291, 293 (4th Cir. 2016) (providing
historical background on the Rwandan genocide).
The respondent was admitted to the United States as a refugee on June 18,
1996. In his Registration for Classification as Refugee (Form I-590), the
respondent swore that he fled Rwanda with his wife on or about April 12,
1994, because his wife, who is Tutsi, was threatened by the Interahamwe.
He claimed that his daughter, who was born on June 4, 1994, was born in
Zaire. The Form I-590 asked the respondent to list “[p]olitical, professional
or social organizations of which I am now or have been a member or with
which I am now or have been affiliated since my 16th birthday.” The form
further instructed the respondent that if he was never “a member of any
organization, state ‘None.’” On his form, the respondent wrote “None.” In
the accompanying Biographic Information (Form G-325C), the respondent
was asked to list all other names used. He wrote “Roger.” In
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Interim Decision #4023

December 1997, the respondent applied for adjustment of status under
section 209(b) of the Immigration and Nationality Act, 8 U.S.C. § 1159(b)
(1994).
At approximately the same time, several individuals in Rwanda wrote to
the State Department implicating the respondent in the genocide. But it was
not until much later that the Government investigation began in earnest. Two
Government officials traveled to Rwanda in September 2009 and spoke with
16 individuals over the course of 6 days, completing reports of investigation
shortly thereafter. All of the individuals interviewed knew the respondent by
a surname different from the one listed on his Form I-590, and all but two
were able to identify him in a photo array. The majority of those interviewed
also stated that the respondent was known as “President” or “Councillor” 1 or
was otherwise a leader of the local MRND or Interahamwe in the Gisozi
sector of Kigali. One stated that he had known the respondent since
childhood and that they were neighbors. This individual further stated that
during the time he was a member of the Interahamwe, he took orders from
the respondent consisting of lists of Tutsis to kill and was directed not to
leave the bodies in the streets where they could be seen by cameras. Several
noted that the respondent directed the murder of Tutsis at the St. Famille
church, where ultimately over 150 people were killed. Investigators also
spoke with the respondent’s former spouse, who confirmed that the
respondent was generally known by a surname different from the one listed
in the Form I-590 and he was a member of the MRND. Another friend also
confirmed the respondent was a member of the MRND.
While the respondent was present in the United States, a gacaca court 2
proceeding was held in absentia in Rwanda concerning the respondent’s
conduct during the genocide. The respondent was accused of being
“Interahamwe’s president as well as MRND president. He would give
permission to kill and spare as well as being provided reports on the
completed activities” and that “he was the one who would issue a list of those
who were supposed to die.” The court records reflect that it took testimony
from numerous witnesses, and identified 12 individuals by name whom the
respondent had a direct part in killing. The gacaca proceeding suggests that
the respondent was a member of the MRND and affiliated with the
Interahamwe militia during the genocide. In 2007, the gacaca court found
1

In Rwandan usage, the term “Councillor” refers to the executive officer of a sector.
“Because of the massive scale of the violence that occurred during the genocide,
Rwandan communities were tasked with prosecuting large numbers of genocide
perpetrators. Rwandan communities utilized a system of locally run courts, known as
‘gacaca courts,’ to oversee the prosecutions.”
United States v. Ngombwa,
No. 14-CR-123-LRR, 2017 WL 508208, at *4 (N.D. Iowa Feb. 7, 2017), aff’d, 893 F.3d
546 (8th Cir. 2018).
2

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Interim Decision #4023

the respondent guilty of “providing instructions on those who were supposed
to die” and “supervising and controlling genocide,” and sentenced him to
30 years’ imprisonment. The Immigration Judge found, based on expert
testimony, that because the respondent’s conviction was in absentia, he
would be entitled to a new trial should he return to Rwanda.
African Rights, a nongovernmental organization (“NGO”), issued
a 30-page report detailing its own investigation into the respondent’s conduct
and concluded that he was the head of the MRND in the Gisozi sector, and
that as head of the MRND he issued orders to Isaïe Ntirushwa, the head of
the Interahamwe in Gisozi. African Rights claims to have interviewed over
20 eyewitnesses, including members of the Interahamwe who were armed by
and took orders from the respondent. The report details the respondent’s
activities in organizing and arming the Interahamwe prior to April 6, 1994,
and his activities on April 7, 1994, immediately following the assassination
of President Habyarimana. Among other specific incidents, it reports that
the respondent ordered the murder of Alfred Rutaysire, the leader of the
Tutsis in Gisozi, as well as the torture of a man named Musonera. Later, the
respondent ordered roadblocks to be put up, and instituted a “laissez-passer”
permit system, which became “more important than the government’s
identity cards” in facilitating movement of Hutus through the roadblocks,
while depriving others of freedom of movement.
On June 5, 2019, the DHS denied the respondent’s application for
adjustment of status and placed him in removal proceedings, charging him
with being removable under section 237(a)(1)(A) of the Act, 8 U.S.C.
§ 1227(a)(1)(A) (2018), as an alien who was inadmissible at the time of entry
under, among other provisions, section 212(a)(6)(C)(i) of the Act, 8 U.S.C.
§ 1182(a)(6)(C)(i) (2018), because of fraud or willful misrepresentation of
material fact. 3 The DHS later amended the factual allegations and lodged an
additional charge that he was inadmissible at the time of entry under section
212(a)(7)(A)(i)(I) of the Act, as an immigrant not in possession of valid entry
documents. He applied for asylum under section 208(b)(1)(A) of the Act,
8 U.S.C. § 1158(b)(1)(A) (2018), withholding of removal under section
241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2018), and protection
under the regulations implementing the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.
No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,
1987; for the United States Apr. 18, 1988) (“Convention Against Torture”).
He also requested the Immigration Judge review the denial of his application
3

The DHS also charged him with being inadmissible at the time of entry under section
212(a)(7)(B)(i)(II) of the Act, as a nonimmigrant who lacked valid entry documents, but
this charge was later withdrawn.

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Interim Decision #4023

for adjustment of status under section 209 of the Act, in conjunction with
waivers of his inadmissibility under sections 209(a), (c), and section
237(a)(1)(H) of the Act.
The respondent conceded that he misrepresented information on his
Form I-590 regarding both the location of his residence between April and
July 1994 and his daughter’s place of birth. He testified that he was forced
from his home in May or June, but he remained in Kigali until July 1994. He
testified that he was known as “Roger” for about 2 months while he was in
school. He conceded that he used a surname different from the one listed on
the Form I-590 for official purposes in Rwanda, and that he was known
professionally by this other surname. He explained that he provided a middle
initial on his immigration paperwork and claimed that no one asked him to
spell out his middle name, which is the same as the surname he was known
by in Rwanda. When asked how his wife, who is Tutsi, was able to move
through government roadblocks, the respondent was nonresponsive.
The respondent denied ever having been part of a political party in
Rwanda, having attended an MRND meeting, or seeing any roadblocks in
Kigali. He denied participating in the genocide. He testified that none of the
material information provided to the Government investigators by the
witnesses in Rwanda was true. He claimed that the witnesses all provided
false statements because of greed and hatred, to please the investigators, or
to save their jobs. Alternatively, the respondent surmised that statements
may have been mistranslated or were invented by the interpreter. He also
disputed the ability of some witnesses to observe the events in question.
When asked where he stayed in Kigali after being forced from his home, the
respondent was nonresponsive. He conceded, however, that he included an
incorrect date of displacement from Rwanda on his Form I-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. The
respondent also admitted that he misled asylum officers about the location of
his daughter’s birth so that it would comport with his claimed (but admittedly
false) date of departure from Rwanda. When asked if he omitted the surname
by which he was generally known in Rwanda from his refugee paperwork
for the same reason, the respondent was nonresponsive. Since arriving in the
United States, the respondent has been active in Rwandan organizations and
has been outspoken against the current government.
Four witnesses testified on behalf of the DHS. In addition to the two
Government investigators, the DHS presented testimony from Dr. Phil Clark,
a professor of international politics at the University of London, as an expert
witness on the history of the Rwandan genocide and systems of justice

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responsive to the genocide. 4 The DHS also presented testimony from Todd
Gardner, Acting Branch Chief of the Refugee, Asylum and International
Affairs Division at United States Citizenship and Immigration Services. The
respondent does not challenge the credibility of any of the DHS’s witnesses
and, in fact, relies on the testimony of Dr. Clark and Mr. Gardner in certain
respects, but he takes issue with Dr. Clark’s assessment of the fairness of the
gacaca court system.
Two witnesses testified on behalf of the respondent. The respondent’s
first witness testified that she was unaware of the respondent’s political
affiliations and never knew his surname, has never seen him hurt anyone, and
believes someone else was the leader of the MRND in the Gisozi area. The
second witness testified that he came to the United States in 1990 and has not
returned to Rwanda since. For these reasons, he has no first-hand knowledge
of the respondent’s activities in Rwanda in 1994.
The Immigration Judge sustained the charge of removability, concluding
that the DHS met its burden of proof by clear and convincing evidence. The
Immigration Judge found the respondent was not credible and that he had
knowledge of and participated in the Rwandan genocide. The Immigration
Judge denied the respondent’s applications for asylum, withholding of
removal under the Act and Convention Against Torture based on this adverse
credibility finding and because the respondent failed to demonstrate that he
is not subject to the persecutor bar under sections 208(b)(2)(A)(i) and
241(b)(3)(B)(i) of the Act. The Immigration Judge also determined that the
respondent ordered, incited, assisted, or otherwise participated in genocide,
torture, or extrajudicial killing under the color of law, rendering him
inadmissible under sections 212(a)(3)(E)(ii) and (iii) of the Act, and thus
ineligible for adjustment of status in conjunction with a waiver under sections
209(a), (c), or 237(a)(1)(H) of the Act. Alternatively, the Immigration Judge
denied the respondent’s applications for asylum and withholding of removal
on the merits. Finally, the Immigration Judge denied the respondent’s
application for deferral of removal under the Convention Against Torture,
after concluding the respondent failed to establish a likelihood that he would
be tortured in Rwanda.

4

Dr. Clark opined that the NGO African Rights has become more closely aligned with
the current Kagame regime in the last 5 to 10 years. As a result, some of their recent
publications reflect a greater political leaning, while earlier work was less biased and
included some important documentation on the genocide and its aftermath. The
Immigration Judge credited Dr. Clark’s testimony in full.

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II. DISCUSSION
A. Timeliness
As a preliminary matter, the respondent argues that the DHS should have
been precluded from instituting the removal proceedings against him because
more than two decades have elapsed between the beginning of the
Government’s investigation and the commencement of removal proceedings.
The respondent grounds this claim in the equitable doctrine of laches, which
he incorrectly frames as a procedural due process right under the Fifth
Amendment. We reject this argument. 5
We have generally held that we lack authority to recognize equitable
defenses that would “preclude [the DHS] from undertaking a lawful course
of action that it is empowered to pursue by statute and regulation.” Matter
of United Airlines Flight UA802, 22 I&N Dec. 777, 783 (BIA 1999) (quoting
Matter of Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991)).
Furthermore, we have applied this general principle without regard to the
form of proceeding before us. See Matter of United Airlines Flight UA802,
22 I&N Dec. at 783 (carrier fine proceedings); Matter of Hernandez-Puente,
20 I&N Dec. at 338 (rescission proceedings); see also Matter of Sparrow, 20
I&N Dec. 920, 923–24 (BIA 1994) (rejecting laches defense in attorney
discipline proceedings on the ground that laches “generally may not be
invoked against the Government when it acts to enforce a public right or
protect a public interest”).
The doctrine of laches—a defense based on prejudicial delay in
commencing a suit—was “developed by courts of equity.” Petrella
v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667, 678 (2014). However,
we are an “administrative body,” not a court of equity. Matter of Cerda
Reyes, 26 I&N Dec. 528, 528 n.3 (BIA 2015); see also Grupo Mexicano de
Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999) (noting
that the Judiciary Act of 1789, which established Article III courts,
5

Although the respondent mentions the Confrontation Clause of the Sixth Amendment,
he does not develop an argument in this respect. Accordingly, we deem the issue waived.
See Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012). The respondent also
contends that the Immigration Judge erred in granting the DHS’s March 18, 2020,
emergency motion to reconsider without giving the respondent an opportunity to respond.
The respondent does not, however, substantively challenge the position of the DHS that
the Immigration Judge’s initial decision omitted discussion of a necessary legal issue and
incorrectly cited a statute. Accordingly, we conclude this alleged error is, at most, harmless.
See Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (stating that error is harmless
where there is no “reason to believe that . . . remand might lead to a different result”
(citation omitted)); Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 467 n.2 (A.G. 2018)
(noting that a scrivener’s error not prejudicing the respondent is harmless).

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“conferred on the federal courts jurisdiction over ‘all suits . . . in equity’”
(citation omitted)). Here, the DHS implemented its lawful authority under
the Act to initiate removal proceedings. We have been granted no authority
to preclude that lawful conduct. See Matter of United Airlines Flight UA802,
22 I&N Dec. at 783; Matter of Hernandez-Puente, 20 I&N Dec. at 338.
Because delay is not “sufficient to estop the Government from enforcing the
conditions imposed by Congress for residency in this country,” INS
v. Miranda, 459 U.S. 14, 18 (1982) (per curiam), we reject the respondent’s
laches defense.
Apart from laches, the respondent also contends that the delay in
instituting proceedings violates his right to due process under the Fifth
Amendment. Specifically, the respondent contends that the passage of time
dulled the memories of the agents who prepared the investigative reports
entered into evidence, which made cross-examination less useful than it
might otherwise have been. He also complains that the reports of
investigation contained hearsay within hearsay, suggests that the interviews
“took place under extremely questionable circumstances,” and claims that he
has no way of confronting or cross-examining the witnesses whom the agents
interviewed. Finally, the respondent suggests that the DHS failed to carry its
burden of proof to show that he was removable by clear and convincing
evidence because much of its investigation relied on evidence adduced at the
respondent’s in absentia gacaca court proceedings, or exhibits that the
respondent contends “lack proper translation certificates” or contain illegible
or incomplete documents.
To prevail on a due process claim, the respondent must demonstrate both
that the proceedings lacked fundamental fairness and that he was prejudiced
as a result. See Montanez-Gonzalez v. Holder, 780 F.3d 720, 723–24 (6th
Cir. 2015). The admission of the DHS’s documentary evidence did not
render proceedings fundamentally unfair. To the extent that any documents
would qualify as hearsay without falling into a hearsay exception—and we
decline to undertake such an analysis—it is well settled that hearsay rules are
not binding in immigration proceedings. See Matter of D-R- (“D-R- I”),
25 I&N Dec. 445, 461 (BIA 2011) (“Hearsay is admissible in immigration
proceedings if it is reliable and probative.”), vacated on other grounds,
Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015); see also N.L.A.
v. Holder, 744 F.3d 425, 436 (7th Cir. 2014). Immigration Judges have broad
discretion to admit and consider relevant and probative evidence. See Dallo
v. INS, 765 F.2d 581, 586 (6th Cir. 1985); see also Matter of D-R- I, 25 I&N
Dec. at 458 (“In immigration proceedings the ‘sole test for admission of
evidence is whether the evidence is probative and its admission is
fundamentally fair.’” (citation omitted)).

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Given the “difficulties . . . inherent in trying to prove up facts related to
events that occurred years past and thousands of miles away from where” a
removal hearing is being conducted, “there will inevitably be gaps that can
be bridged only by multiple levels of hearsay.” Angov v. Lynch, 788 F.3d
893, 908 (9th Cir. 2015). The need for flexibility in evidentiary standards is
at least as acute for respondents, as “[a]lmost every piece of evidence asylum
petitioners present in support of their cases would be inadmissible if
subjected to the rules of evidence, especially those pertaining to hearsay.”
Id. As the Ninth Circuit has observed, “[p]ersecutors are hardly likely to
provide their victims with affidavits attesting to their acts of persecution.”
Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984).
Here, the Immigration Judge correctly determined that the DHS’s
evidence was reliable, relevant, probative, and its use was fundamentally fair,
especially in light of the respondent’s incredible testimony. See Matter of
D-R- I, 25 I&N Dec. at 461. 6 That some of the evidence was derived from
the respondent’s in absentia gacaca court trial does not itself make the
evidence unreliable. Contrary to the respondent’s contentions, there is no
prohibition on admission into evidence of the fact of an in absentia trial, a
resulting conviction, or the records pertaining to that proceeding. See Matter
of Thomas, 21 I&N Dec. 20, 24–25 (BIA 1995) (noting that an in absentia
conviction “may at the very least constitute probable cause to believe [an
individual] is guilty of the crimes in question” (citing Esposito v. INS, 936
F.2d 911, 914–15 (7th Cir. 1991)). The Immigration Judge accorded no legal
effect to the conviction itself. Accordingly, we discern no due process
violation.
Finally, we are not persuaded by the respondent’s claim that the
Immigration Judge was biased against him, as we have carefully examined
the record and concluded that the Immigration Judge conducted a fair
hearing, showing neither a preference for, nor a prejudice against, the
position of either party. See Matter of Fedorenko, 19 I&N Dec. 57, 72–73
(BIA 1984), abrogated on other grounds by Negusie v. Holder, 555 U.S. 511
(2009). The respondent’s claim that the Immigration Judge ignored evidence
favorable to him is also unavailing. The record indicates that the
Immigration Judge considered all evidence submitted by the parties,
regardless of whether it was expressly mentioned in the decision.

6
The trier of fact may determine that the hearsay nature of testimony impacts its weight,
but the hearsay nature does not preclude its admission. Matter of D-R- I, 25 I&N Dec.
at 461. The Immigration Judge here found the evidence to be reliable and persuasive.

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B. Removability
The respondent’s removability under section 237(a)(1)(A) for being
inadmissible at the time of entry turns on whether he made willful
misrepresentations of material fact on his Form I-590 and supporting
documentation. For the following reasons, we conclude that the respondent
willfully misrepresented his name, the timing of his departure from Rwanda,
the location of his residence during the period he claimed to have fled, and
his membership in the MRND. We review the materiality of these
misrepresentations de novo. See United States v. Stelmokas, 100 F.3d 302,
317 (3d Cir. 1996); see also Matter of D-R- (“D-R- II”), 27 I&N Dec. 105,
108–09, 112–13 (BIA 2017) (applying the “natural tendency” definition of
materiality in Kungys v. United States, 485 U.S. 759 (1988)—but not the
“fair inference” test—in the inadmissibility context). 7
On his Form I-590 the respondent used the first name he adopted upon
his baptism, a middle initial, and his father’s name. In the section that asks
for all other names used, the respondent provided the name “Roger” which,
as he explained, was a nickname that someone had given him in school for
approximately 2 months. He did not list the surname he was generally known
by in Rwanda, which he describes in his brief “as his name.” The respondent
notes that he instead used his father’s name on the Form I-590 because he is
his father’s eldest son. The respondent later admitted that he failed to include
the surname he was given at birth, known by, employed under, registered in
school under, and which was generally used by others in Rwanda to refer to
him on his refugee application. We acknowledge that the respondent listed
a middle initial that could stand for the surname he was known by in Rwanda,
but the failure to fully list this other surname anywhere on a form that clearly
requires all other names be listed was a misrepresentation. The respondent
knew that he was known by this other surname in Rwanda. Listing
“Roger”—a nickname the respondent used only briefly while he was
a child—supports the Immigration Judge’s finding that the respondent
willfully withheld the surname he was generally known by in Rwanda
because it demonstrates an understanding of the comprehensive nature of the
question asked.
Identity is the factual cornerstone upon which eligibility for relief is built.
Misrepresenting one’s identity is material to applications for relief and
protection from removal because it impairs an adjudicator’s ability to probe
7
Materiality is not a “but for” test. United States v. Latchin, 554 F.3d 709, 713 (7th Cir.
2009) (noting Justice Stevens’s position in Kungys favoring such an approach was shared
by only two other Justices); see also United States v. Ahmed, 735 F. App’x 863, 869–70
(6th Cir. 2018). Thus, the DHS need only establish that the misrepresentation was “capable
of influencing” an adjudicator. Matter of D-R- II, 27 I&N Dec. at 113.

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past conduct that might be potentially disqualifying or bear on the exercise
of discretion. It impairs the adjudicator’s ability to inquire into potentially
relevant past conduct because it blinds the adjudicator to whose past conduct
is at issue. See Matter of D-R- II, 27 I&N Dec. at 113 (stating that
a misrepresentation is “material” if it “tends to shut off a line of inquiry”
relevant to admissibility and “would predictably have disclosed other facts”
relevant to eligibility). Had the respondent disclosed the surname by which
he was generally known in Rwanda, an adjudicator might have inquired
whether he was the individual who was suspected (later, accused and
convicted) of having had a leading role in the genocide in the vicinity of
Gisozi. The respondent’s failure to list the surname by which he had been
known for virtually all purposes for his entire life was therefore material.
The respondent also wrote on the Form I-590 that he was displaced or
fled from Rwanda on April 12, 1994. The respondent acknowledges that this
was a misrepresentation. On an Application for Waiver of Grounds of
Inadmissibility (Form I-601), the respondent wrote, “I acknowledge that
I misrepresented information on my refugee application and my
accompanying G-325A form submitted in 1996 regarding my daughter’s
place of birth and where I resided between April and July 1994.” The
respondent further testified that this misrepresentation resulted from a “lack
of good judgment.” He similarly stated that he had claimed his daughter was
born in Zaire rather than Rwanda “because we want to match the . . .
displacement.”
A claim that the respondent departed Rwanda on April 12, 1994, would,
if believed, remove him from consideration as a participant in any acts of
genocide that occurred in Rwanda after that date. Between April 6, 1994,
when the genocide began, and April 11, 1994, only about 20,000 Tutsis and
moderate Hutus had been killed. Ultimately, between April 6, 1994, and the
end of July 1994, between 750,000 and 1 million people were murdered. The
date of the respondent’s departure therefore “has a natural tendency” to
influence an adjudicator because the date he provided suggested he was
outside of the country and therefore not implicated in more than 97 percent
of the killings. The supporting misrepresentation concerning the location of
the respondent’s daughter’s birth is likewise material. Indeed, it not only had
the natural tendency to influence an adjudicator, but according to the
respondent, it was actually calculated to do so.
The Form I-590 also required the respondent to disclose all political,
professional and social organizations with which he had been affiliated since
his 16th birthday. The respondent wrote “None.” The Immigration Judge
found, based on the Government’s investigation, the African Rights report,
and the testimony adduced at the gacaca trial, that the respondent was a
member of the MRND. This finding is not clearly erroneous, and the
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respondent’s failure to disclose his membership is therefore
a misrepresentation.
This misrepresentation was material as well because it cut off a line of
inquiry into the respondent’s personal involvement in specific, known events
that, if the respondent was personally involved, may result in disqualification
from immigration benefits. Matter of D-R- I, 25 I&N Dec. at 450–51 (“The
respondent’s deliberate omission from his refugee application that he was a
special police officer in the Republic of Srpska during the Bosnian War could
have influenced the Government’s decision whether to grant him refugee
status.”). Here, the MRND had control of the Interahamwe, which
perpetrated the genocide. Thus, the respondent’s failure to disclose his
affiliation with the MRND cut off a line of inquiry with respect to his
involvement in the genocide. See Matter of D-R- II, 27 I&N Dec. at 113.
For these reasons, we affirm the Immigration Judge’s conclusion that the
respondent is removable as charged.
C. Relief and Protection from Removal
The Immigration Judge’s adverse credibility finding precludes the
respondent from establishing his eligibility for asylum and withholding of
removal. We further conclude that the evidence indicates that the respondent
is subject to the genocide bar under the Act and that the respondent’s
evidence fails to establish that he is not subject to this mandatory bar. The
respondent is therefore precluded from all forms of relief and protection from
removal, with the exception of deferral of removal under the Convention
Against Torture. We will also deny adjustment of status and all waivers in
the exercise of discretion. Finally, the Immigration Judge correctly
determined that the respondent failed to establish his eligibility for deferral
of removal under the Convention Against Torture.
1. Adverse Credibility Finding
Truthful testimony is the cornerstone of the asylum process. We have
explained that the immigration court system has “no more solemn duty” than
to offer protection to those facing persecution or torture in their home
countries. Matter of O-M-O-, 28 I&N Dec. 191, 197 (BIA 2021). False
claims “can raise doubts about the validity of legitimate claims” and
“undermine confidence” in the entire system. Id. at 198 (citing Matter of
Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016)); see also Singh
v. Holder, 643 F.3d 1178, 1182 (9th Cir. 2011); Martinez v. Holder, 557 F.3d
1059, 1065 (9th Cir. 2009).

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We affirm the Immigration Judge’s adverse credibility finding, because
it is not clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i); Matter of J-Y-C-,
24 I&N Dec. 260, 263 (BIA 2007); see also El-Moussa v. Holder, 569 F.3d
250, 255 (6th Cir. 2009) (stating that the courts owe deference to
Immigration Judges “on the issue of credibility”). The Immigration Judge’s
finding is properly based on inconsistencies and omissions between the
respondent’s testimony and the documentary evidence, as well as the
implausibility of his testimony. See section 241(b)(3)(C) of the Act
(incorporating by reference section 208(b)(1)(B)(iii) of the Act); see also
section 240(c)(4)(C) of the Act, 8 U.S.C. § 1229a(c)(4)(C) (2018);
El-Moussa, 569 F.3d at 256; Matter of J-Y-C-, 24 I&N Dec. at 265.
As noted, the respondent listed his childhood nickname on the Form I-590
and failed to list the surname by which he was commonly known. The
respondent did not provide a reasonable explanation for why he included his
childhood nickname on his refugee application but omitted this surname.
The respondent also testified that he was last in Rwanda in July 1994, but he
stated on his Form I-590 that he left that country on April 12, 1994. The
respondent later admitted that he wrote the wrong date because of a lack of
good judgment and his belief that others would infer his involvement in the
genocide based on his late date of departure from Rwanda. We are not
persuaded by the respondent’s assertion that the Immigration Judge did not
consider the context of his testimony or relied upon facts that were
immaterial.
Additionally, the Immigration Judge properly found the respondent’s
account of his and his family’s personal circumstances at the time of the
Rwandan genocide to be implausible. See Wang v. Lynch, 824 F.3d 587, 591
(6th Cir. 2016) (providing that the “inherent implausibility of elements of [an
applicant’s] story” justify an adverse credibility finding). The respondent
was unable to articulate a clear account of what he and his family did during
the genocide, where they lived, how his pregnant Tutsi wife made it safely
through roadblocks, or why they remained in Rwanda for so long after the
genocide began. Rather, the respondent denied almost every piece of
information provided by the 16 witnesses interviewed by the Government
and attempted to attack the credibility of several witnesses, with no evidence
to support his claims. The Immigration Judge found it implausible that the
witnesses interviewed by the Government, the witnesses who testified at the
gacaca trial, and the individuals who wrote letters to the State Department in
1997 all independently provided false or incorrect testimony against the
respondent. See United States v. Munyenyezi, 781 F.3d 532, 538 (1st Cir.
2015) (rejecting nearly identical arguments concerning witness perception
and credibility).

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The Immigration Judge also found implausible the respondent’s
contention that, although he was in Kigali for almost the entirety of the
genocide, he never saw any roadblocks. See Hachem v. Holder, 656 F.3d
430, 434–35 (6th Cir. 2011) (affirming an adverse credibility finding where
the Immigration Judge considered the brevity of the applicant’s statements
in his application and at the hearing, lack of detail about his experiences,
demeanor, and implausible stories). The systematic and coordinated use of
roadblocks to identify Tutsis during the genocide has been well documented
and was confirmed by expert testimony before the Immigration Judge.
Accord Munyenyezi, 781 F.3d at 535 (“About 7,000 Rwandans died each day,
often butchered by machete-wielding Interahamwes at roadblocks set up to
catch fleeing Tutsis.”).
The Immigration Judge also found that the respondent “was evasive in
his responses, frequently non-responsive to the questions asked, and
repeatedly belligerent with the Court and the Department.” 8 The respondent
has not contested these findings. Instead, he raises two challenges to the
Immigration Judge’s adverse credibility finding. He contends that the
evidence demonstrates that he and his witnesses were credible, and that the
Immigration Judge failed to consider three exhibits purportedly documenting
his political activities since arriving in the United States. Neither contention
has merit.
The Immigration Judge found that the testimony of the respondent’s two
witnesses lacked credibility. In particular, the record contains a letter of
support on behalf of the respondent from 2014 purportedly written by the
first witness. When confronted with the letter, the first witness denied that
she had written it, though she identified her signature at the bottom of the
letter. She then testified that she may have just signed the letter without
having written it. In addition, the first witness’s testimony was inconsistent
with her own refugee application regarding the number of days she stayed at
a hotel after she left her home in Rwanda in April 1994. She did not provide
sufficient explanations for the inconsistencies.
The Immigration Judge also properly found that the respondent’s second
witness was not credible. While this witness testified that he was a member
of the MRND in Rwanda, his affiliation was not included in his Application
for Naturalization (Form N-400). Furthermore, while the second witness
8
We are not well-placed to second-guess an Immigration Judge’s findings based on
a respondent’s or a witness’s demeanor. Volume, tone, cadence, lengthy pauses, facial
expressions, body language, and other nonverbal indications that a witness has lost the
thread of a fictitious claim or has been caught in a misrepresentation are often lost in the
transcription of the record. See, e.g., Abdulahad v. Holder, 581 F.3d 290, 295 (6th Cir.
2009). Accordingly, credibility findings based on demeanor are normally given a high
degree of deference. Matter of A-S-, 21 I&N Dec. 1106, 1111 (BIA 1998).

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testified that only he and his father were members of the MRND, the personal
statement attached to his asylum application stated that numerous extended
family members were MRND members, who were tortured and murdered.
This witness did not provide reasonable explanations for these
inconsistencies and material omissions.
An adverse credibility finding is a finding of fact, and our review is
limited to clear error. On this standard, we decide only whether, in light of
the evidence, the Immigration Judge’s finding was permissible. See Matter
of J-Y-C-, 24 I&N Dec. at 263; see also U.S. Bank Nat’l Ass’n ex rel.
CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC, 138 S. Ct. 960,
966 (2018) (describing the clear error standard for factual findings as
“a serious thumb on the scale for the [factfinder]”). Because the Immigration
Judge’s adverse credibility finding is supported by the record, it is not clearly
erroneous. 9
Accordingly, we agree with the Immigration Judge that the respondent’s
and his two witnesses’ lack of credibility prevents him from meeting his
burden of proof for asylum and withholding of removal. See 8 C.F.R.
§§ 1208.13(a), 1208.16(b) (2020); Slyusar v. Holder, 740 F.3d 1068, 1072
(6th Cir. 2014) (“An adverse credibility determination is fatal to claims for
asylum and relief from removal, preventing such claims from being
considered on their merits.”); Matter of M-S-, 21 I&N Dec. 125, 129 (BIA
1995) (same). On appeal, the respondent points to no evidence that
establishes his eligibility for asylum, on any basis, independent of his
discredited testimony. We therefore affirm the denial of the respondent’s
applications for asylum and withholding of removal under the Act based on
the Immigration Judge’s adverse credibility finding.
2. The Genocide Bar
The respondent is also barred from all forms of relief and protection from
removal, with the exception of deferral of removal, because he is subject to
9

The respondent also suggests that the Immigration Judge failed to consider letters of
support attesting to the respondent’s political activities since arriving in the United States.
The Immigration Judge did fail to note this evidence in his conclusion, which states that
the respondent “relied solely on incredible testimony from himself and [a witness] to
support his political activities.” However, the Immigration Judge’s adverse credibility
finding was premised on the respondent’s demeanor and the implausibility of his claimed
conduct in Rwanda. The respondent’s activities in the United States were not material to
the Immigration Judge’s adverse credibility finding. We therefore conclude that any error
in this regard is harmless. In any event, the portion of the Immigration Judge’s decision
cited by the respondent concerns his fear of persecution in Rwanda, not the adverse
credibility finding. The portion addressing the adverse credibility finding cites two of the
three exhibits the respondent contends were not considered.

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the genocide bar under section 212(a)(3)(E)(ii) of the Act. “[W]hen an alien
applies for relief from removal, the alien bears the burden to prove that he
meets the eligibility requirements for the specific form of relief requested.”
Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019) (citing
section 240(c)(4) of the Act); see also Pereida v. Wilkinson, 141 S. Ct. 754,
760 (2021) (“The [Act] states that ‘[a]n alien applying for relief or protection
from removal has the burden of proof to establish’ that he ‘satisfies the
applicable eligibility requirements’ and that he ‘merits a favorable exercise
of discretion.’” (second alteration in original) (quoting same)). “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.” Matter
of M-B-C-, 27 I&N Dec. 31, 33 (BIA 2017) (quoting 8 C.F.R. § 1240.8(d)
(2016)).
Section 212(a)(3)(E)(ii) of the Act renders inadmissible any alien who
ordered, incited, assisted, or otherwise participated in genocide, as defined in
18 U.S.C. § 1091(a) (2018). Section 1091(a) defines the offense of
“genocide” as follows:
Basic Offense.—Whoever, whether in time of peace or in time of war and with the
specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or
religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group . . . .

There is no waiver for this ground of inadmissibility, and an alien who is
inadmissible under this provision is barred from seeking, among other forms
of relief and protection, adjustment of status, asylum, and withholding of
removal under both the Act and the Convention Against Torture. See
sections 209(a)(2), (c), 237(a)(1)(H) of the Act (barring applicants who are
inadmissible under section 212(a)(3)(E)(ii) from waiving their
inadmissibility and applying for adjustment of status); Matter of D-R- I, 25
I&N Dec. at 463 (providing that aliens who are removable under section
237(a)(4)(D) of the Act 10 are barred from seeking asylum and withholding

10

Section 237(a)(4)(D) renders an alien deportable if he or she is described in, among
other provisions, section 212(a)(3)(E)(ii) of the Act.

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Interim Decision #4023

of removal under the Act and the Convention Against Torture); 8 C.F.R.
§§ 1208.13(c)(1), 1208.16(d)(2).
Although the respondent challenges the weight the Immigration Judge
accorded to certain evidence concerning his conduct in Rwanda, he does not
dispute that what happened in the spring of 1994 in Rwanda qualifies as
genocide. Thus, the question before us is whether the evidence indicates that
the respondent ordered, incited, assisted, or otherwise participated in
genocide as it is defined in 18 U.S.C. § 1091(a) 11 and, if so, whether the
respondent has produced sufficient countervailing evidence to demonstrate
that he did not do so. We conclude that the evidence indicates that the
respondent ordered, incited, assisted, or otherwise participated in the killing
of Tutsis with the specific intent to destroy the Tutsi people in whole or in
substantial part, and that the respondent has not established otherwise. See
section 212(a)(3)(E)(ii) of the Act; see also 18 U.S.C. § 1091(a)(1)–(4);
Matter of M-B-C-, 27 I&N Dec. at 36–37.
The evidence indicates that the respondent ordered genocide. One
individual interviewed by the Government investigators explained that he
personally took orders from the respondent consisting of lists of Tutsis to
kill. This is corroborated by the gacaca court records, which similarly
indicate that others accused him of being “the one who would issue a list of
those who were supposed to die” and that the respondent was found guilty of
“providing instructions on those who were supposed to die” and “supervising
and controlling genocide.” Other witnesses stated that the respondent
directed the murder of Tutsis at the St. Famille church and elsewhere. Five
individuals wrote to the State Department accusing the respondent of
directing and participating in the extermination of Tutsis as a leader of the
Interahamwe in Gisozi sector. One wrote that the respondent “sent a mob of
killers to our home, and they killed my mother and two younger sisters.”
Another said that he “instructed the militias to start killing and setting the
houses ablaze.” Additionally, there is evidence that the respondent ordered
the creation of a network of roadblocks and a permit system to facilitate the
identification and killing of Tutsis.
11

The Intelligence Reform and Terrorism Prevention Act of 2004 (“IRTPA”), Pub. L. No.
108-458, § 5501(a)(1), 118 Stat. 3638, 3740, expanded the language of section
212(a)(3)(E)(ii) of the Act from “has engaged in conduct that is defined as genocide” to
the broader phrase “ordered, incited, assisted, or otherwise participated in genocide.”
A Senate Judiciary Committee report notes that “[t]his broader scope will ensure that the
genocide provision addresses a more appropriate range of levels of complicity.” S. Rep.
No. 108-209, at 6, 10 (2003). To assist or otherwise participate in genocide requires
“(1) [a] nexus between the alien’s role, acts, or inaction, and the [genocide]; and (2) his
scienter, meaning his prior or contemporaneous knowledge of the [genocide].” Matter of
D-R- II, 27 I&N Dec. at 120.

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The evidence also indicates that the respondent incited genocide. One
witness interviewed by the Government explained that because the
respondent was the leader of the MRND, he led their meetings, and that after
those meetings the MRND would sometimes kill Tutsis. The African Rights
report indicates that immediately after the death of President Habyarimana,
the respondent addressed a crowd assembled in front of Ntirushwa’s home,
and said, “I don’t want to waste time explaining why we are here. There are
enemies to go and find. You are all sufficiently well-equipped to be able to
wipe out those who hope their brothers, the inyenzi, 12 will overrun the
country.”
The evidence additionally indicates that the respondent assisted or
otherwise participated in genocide. As the Immigration Judge found, the
record is replete with such evidence. The investigation reports contain
witness statements that declare the respondent was a leader and member of
the MRND. The African Rights report also describes in detail the
respondent’s participation in the MRND and his activities during the
genocide. Additionally, the gacaca trial records indicate that the respondent
was a member of the MRND and affiliated with the Interahamwe militia
during the genocide. He was found guilty and sentenced to 30 years for
genocide; complicity in genocide; conspiracy to commit genocide; murder;
extermination; and formation, membership, leadership, and participation in
an association of a criminal gang, whose purpose and existence was to do
harm to people or their property.
Overall, we agree with the Immigration Judge that this documentary
evidence indicates that the respondent ordered, incited, assisted, or otherwise
participated in “genocide” within the meaning of 18 U.S.C. § 1091(a). See
Mukeshimana v. Holder, 507 F. App’x 524, 527 (6th Cir. 2012) (per curiam)
(concluding that evidence of an individual’s in absentia conviction for crimes
relating to the Rwandan genocide in a gacaca court and her sentence to
19 years’ imprisonment “indicat[ed] that grounds existed for a mandatory
denial” of asylum and related forms of protection); Matter of M-B-C-, 27
I&N Dec. at 36–37. Thus, it became incumbent upon the respondent to show
by a preponderance of the evidence that the bar did not apply. See 8 C.F.R.
§§ 1208.13(c)(1), 1208.16(d)(2), 1240.8(d); Matter of M-B-C-, 27 I&N Dec.
at 33. The respondent’s evidence—which in relevant part consisted
principally of his and his witnesses’ discredited testimony—is insufficient to
establish that he did not order, incite, assist, or otherwise participate in
“genocide” within the meaning of section 212(a)(3)(E)(ii) of the Act.
Consequently, we affirm the Immigration Judge’s determination that the
12

Literally, “cockroaches,” a reference to the RPF and Tutsis more broadly. Munyenyezi,
781 F.3d at 535.

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respondent is subject to the genocide bar and ineligible for all forms of relief
and protection from removal except deferral of removal under the
Convention Against Torture. 13 See 8 C.F.R. § 1208.17(a) (2020).
3. Discretion
Although we need not reach the issue of discretion because the
respondent is statutorily barred from adjustment of status under section 209
of the Act in conjunction with a waiver of inadmissibility under sections
209(c) and 237(a)(1)(H) of the Act, we nonetheless agree with the
Immigration Judge’s alternative determination that the respondent does not
merit these forms of relief in the exercise of discretion. Two factors guide
our consideration. First, the Attorney General has made clear that except
upon a showing of “extraordinary circumstances,” we may not grant
adjustment of status under section 209 in the exercise of discretion to
individuals who have committed “violent or dangerous” crimes, and,
“depending on the gravity of the alien’s underlying criminal offense, such a
showing might still be insufficient.” Matter of Jean, 23 I&N Dec. 373, 383
(A.G. 2002). Second, “[t]he ultimate consideration when balancing factors
in the exercise of discretion is to determine whether a grant of relief . . .
appears to be in the best interest of the United States.” Matter of D-A-C-, 27
I&N Dec. 575, 578 (BIA 2019). Both factors weigh heavily against the
respondent.
The evidence indicates the respondent was directly involved in killing a
dozen people and was indirectly involved in the murder of scores of others
based solely on their ethnicity, with the intent to destroy the ethnic group to
which they belonged. Genocide is misconduct of the most appalling and
severe character, and it clearly constitutes a “violent or dangerous” crime.
See, e.g., Torres-Valdivias v. Lynch, 786 F.3d 1147, 1155 (9th Cir. 2015)
(stating that this Board’s “ultimate decision that a crime is in fact violent or
dangerous is a discretionary decision”). Given the tremendous gravity of the
respondent’s misconduct, he would have to show equities of the highest order
to merit adjustment of status under section 209 of the Act and a waiver of
inadmissibility. Matter of Jean, 23 I&N Dec. at 383.

13

In light of this conclusion, we need not address whether the respondent is also barred
from relief under section 212(a)(3)(E)(iii)(II) of the Act for having committed, ordered,
incited, assisted, or otherwise participated in an extra-judicial killing, or whether he fails
to meet the definition of a refugee under section 101(a)(42)(A) of the Act, 8 U.S.C.
§ 1101(a)(42)(A) (2018), because he persecuted others. See INS v. Bagamasbad, 429 U.S.
24, 25 (1976) (per curiam) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”).

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Furthermore, the prevention and punishment of the crime of genocide is
a core national interest. See, e.g., Elie Wiesel Genocide and Atrocities
Prevention Act of 2018, Pub. L. No. 115-441, 132 Stat. 5586 (2019); Human
Rights Enforcement Act of 2009, Pub. L. No. 111-122, 123 Stat. 3480;
Genocide Convention Implementation Act of 1987 (the “Proxmire Act”),
Pub. L. No. 100-606, 102 Stat. 3045, 3045–46 (1988) (implementing the
Convention on the Prevention and Punishment of the Crime of Genocide, art.
2, Dec. 9, 1948, 78 U.N.T.S. 277, 280, by enacting 18 U.S.C. §§ 1091–93
(1988)). Only in the rarest of cases will the interests of the United States
weigh in favor of conferring discretionary relief upon an individual who has
committed, in the words of the Supreme Court, “acts repugnant to all
civilized peoples” that “make their perpetrators ‘enem[ies] of all mankind.’”
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1401–02 (2018) (alteration in
original) (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)).
We acknowledge the respondent’s equities, which concern the hardship
his family may face as a consequence of his removal. But these factors do
not relate to, recognize, or attempt to mitigate his involvement in the
Rwandan genocide. They do not approach the standard necessary to
overcome his past misdeeds or his attempt to conceal them in order to enter
this country, and in this case a favorable exercise of discretion would not be
in the interest of the United States. We therefore agree with the Immigration
Judge that the respondent’s application for adjustment of status in
conjunction with a waiver of inadmissibility does not warrant a favorable
exercise of discretion. See Matter of C-A-S-D-, 27 I&N Dec. 692, 699 (BIA
2019).
4. Deferral of Removal
We also affirm the Immigration Judge’s denial of the respondent’s
request for deferral of removal under the Convention Against Torture. Based
on the entirety of the record, we agree that the respondent has not established
that it is more likely than not that he will be tortured upon return to Rwanda,
nor has he established that such torture would be “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2020).
“Torture is an extreme form of cruel and inhuman treatment . . . .” 8 C.F.R.
§ 1208.18(a)(2).
The respondent was not tortured in the past in Rwanda. 8 C.F.R.
§ 1208.16(c)(3)(i). The respondent testified that he would be imprisoned and
tortured upon his return to Rwanda in connection with his in absentia
conviction by the gacaca court. The respondent also fears that he would be

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tortured in Rwanda because of his anti-government political activities in the
United States and being a highly educated and outspoken Hutu.
The Immigration Judge found that the respondent failed to show that he
would likely be tortured in Rwanda upon his removal. In coming to this
conclusion, the Immigration Judge found that the respondent did not
establish that individuals returning to Rwanda for their trials related to the
1994 genocide are generally subject to torture, and the record does not
suggest that the respondent’s case would likely be any different. Dr. Clark
testified that defendants in gacaca trials who are convicted in absentia and
later return have their verdicts annulled upon arrival and are entitled to an
entirely new trial. He further testified that such individuals are detained at
Mpanga in a new, purpose-built, state-of-the-art prison, which is not
overcrowded and which is regularly inspected by NGOs. The Immigration
Judge found Dr. Clark’s testimony credible, and this finding is not clearly
erroneous.
In sum, we discern no clear error in the Immigration Judge’s factual
findings concerning the respondent’s eligibility for deferral of removal under
8 C.F.R. § 1208.17(a). See Matter of Z-Z-O-, 26 I&N Dec. 586, 590
(BIA 2015) (reviewing an Immigration Judge’s predictive findings for clear
error). The respondent has not submitted sufficient objective evidence to
support his speculative fear of torture by the Rwandan Government. See
Matter of J-F-F-, 23 I&N Dec. 912, 917–18 (A.G. 2006) (holding that
a torture claim cannot be established by stringing together a series of
suppositions). Additionally, although we recognize Rwanda suffers from
instability and violence, this is insufficient to satisfy the standard for
eligibility under the Convention Against Torture. 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1); see also Matter of G-K-, 26 I&N Dec. 88, 98 (BIA 2013)
(holding that generalized evidence of government corruption or
ineffectiveness is insufficient to show that a government would acquiesce in
or turn a blind eye to torture). We therefore affirm the Immigration Judge’s
denial of deferral of removal under 8 C.F.R. § 1208.17(a). Accordingly, the
respondent’s appeal is dismissed.
ORDER: The respondent’s appeal is dismissed.

350


Interim Decision #2518

MATTER OF CUING
In Deportation Proceedings
A-20675522

Decided by Board August 17, 1976
(1) Under 8 CFR 245.1(d), and applicant for preference status such as respondent herein is
not eligible for adjustment of status under section 245 of the Immigration and Nationality Act unless he is the beneficiary of a valid unexpired visa petition filed in
accordance wits► 8 CFR 204 and approved to accord him such status. Burden is on
respondent to prove to the satisfaction of the district director that he meets the
requirements for approval of the visa petition. Where such petition has not been
approved, respondent is statutorily ineligible for section 245 relief.
(2) Under 8 CFR 103.1(m)(2) and (n), determination of sixth-preference eligibility is
vented solely w. thin the jurisdiction of the district director and regional commissioner. 8
CFR 242.8 doe; not vest authority over such a question in the immigration judge, and 8
CFR 3.1(b)(5) specifically excepts appellate jurisdiction in such a question from the
Board of Immigration Appeals.
(a) On motion for reconsideration, respondent must present prima fade evidence of
eligibility for section 245 relief to the Board. Lack of approval of the sixth-preference
visa petition renders the respondent ineligible for section 245 relief. Respondent's
failure to present prima fade evidence of eligibility on motion for reconsideration is
sufficient ground for denial of that motion by the Board.
CHARGE:
Order: Act of 3952—Section 241(a)(2) U.S.C. 1251(a)(2)]—Nonimmigrant visitor—
remained longer.
ON BEHALF OF :RESPONDENT:

ON BEHALF OF SERVICE:

Wallace Heitman, Esquire

Daniel L. Kahn
Trial Attorney

1014 Mercantile Bank Bldg.

Dallas, Texas 75201
On August N, 1975, we dismissed the respondent's appeal from an
order of the immigration judge (following a reopened hearing) denying
respondent's application for adjustment of status under section 245 of
the Immigration and Nationality Act; and sustained his appeal from an
order of the immigration judge denying respondent's application for
voluntary departure and ordering his deportation to the Republic of
China. This case is now before us on a motion to reconsider our prior
decision on the issue of adjustment of status. We note that counsel has

772

Interim Decision #2518
filed a Petition for Review with the United States Court of Appeals for
the Fifth Circuit in this matter. On December 16, 1975, counsel filed a
Motion to Abate in the United States Court of Appeals. That motion
was granted by the Court of Appeals on December 29, 1975 pending our
review of respondent's motion.
The respondent is a 58-year-old male alien, native and citizen of the
Republic of China. He entered the United' States ' at San Francisco,•
California as a nonimmigrant (business) visitor on June 10, 1973. The
respondent was authorized to remain in the United States until August
9, 1973. He remained beyond that date. Deportability was established
at respondent's first hearing by clear, convincing and unequivocal evidence.
At his reopened hearing, the respondent requested adjustment of
status. The immigration judge found that respondent' was statutorily
ineligible for adjustment of status because he was unable to show that
he had a valid labor certification. The immigration judge also denied
adjustment of status in the exercise of his administrative discretion. On
appeal, respondent submitted a new labor certification issued to him on
January 27, 1975. That document indicated that the respondent has
been employed by the Blue Hawaii Restaurant of Arlington, Texas as -a
Chinese specialty cook since July of 1973. We denied respondent's
application for adjustment of status on the sole ground that a visa
number for the Republic of China in the nonpreference category was not
available to him as of the date of our decision. In his motion papers, counsel informs us that a visa petition for a sixth
preference was filed with the Service on respondent's behalf on
November 5, 1973 (petition is currently pending before the Service);
that respondent has a valid labor certification; that his priority date is
December 17, 1974; and that as of December of 1975, visa numbers were
available for the Republic of China in the sixth prpference category.
Counsel contends that the respondent is statutorily eligible for adjustment of status and requests that we ". . . advise the Service to consider
said Visa Petition for 6th Preference in line with this Motion . . . ."
Section 245(a) of the Immigration and Nationality Act provides that:
The status of an alien, other than an alien crewman, who was inspected and admitted or
paroled in the United States may be adjusted by the Attorney General, in his discretion
and under such regulations as he may prescribe, to that of an alien lawfully admitted for
permanent residence if (1) the alien makes an application for such adjustment, (2) the
alien is eligible to receive an immigrant visa and is admissible to the United States for
permanent residence, and (3) an immigrant visa is immediately available to him at the
time his application is approved.
8 CFR 245.1(d) provides that an applicant for preference status such
as this respondent is not eligible for the benefits of section 245 of the
Immigration and Nationality Act (8 U.S.0 1255) unless he is the ben773

Interim Decision #2518
eficiary of a valid unexpired visa petition filed in accordance with 8 CFR
204 and approved to accord him such status. 8 CFR 103.1(m)(2) and (n)
places the determination of whether or not . an alien possesses the
qualification,3 for sixth preference status solely within the jurisdiction of
the appropriate district director and regional commissioner. 8 CFR
242.8 does not vest in the immigration judge authority over such a
question; and 8 CFR 3.1(b)(5) specifically excepts appellate jurisdiction
of such a question from this Board.
It is clear from the record that the respondent does not possess an
approved visa petition for a sixth preference. Therefore, he is statutorily ineligible for adjustment of status under section 245 of the Act..
Respondent's remedy lies with the district director. There is no merit to
counsel's request that we advise the district director to consider respondent's visa petition in light of this motion. It is respondent's burden
to prove .to the satisfaction of the district director that he meets the
requirements for approval of his visa petition for a sixth preference.
Respondent has available to him the remedy of a motion for reconsideration should future events in connection with his visa petition render
such action appropriate. See Matter of Ficalora, 11 I. & N. Dee. 592
(MA 1966).

We conclude that the respondent has not presented prima facie evidence to establish that he is statutorily eligible for adjustment of status
under section 245 of the Act. Accordingly, the motion to reconsider will
be denied. •
ORDER: The motion to reconsider is denied.

774


Interim Decision #2486

MATTER OF BULOS
In Deportation Proceedings
A-20798198
Decided by Board March, 26, 1976
(1) Search at border of respondent's suitcase carried by U.S. citizen friend, where
respondent was not present, and seizure therefrom of respondent's Argentine passport,
occurring in the course of routine customs border inspection does not exceed the
Service's authority under section 287(c) of the Immigration and Nationality Act.
(2)Respondent identified himself and thereafter stood mute with respect to the charges of
deportability. Argentine passport was issued to a person with the same name as
respondent and contained a photograph mumbling hini_ kaid passport did not contain a
visa permitting entry into the United States or a stamp indicating inspection and entry.
These facts, coupled with respondent's failure to deny the passport was his, constitute
clear, convincing, and =equivocal evidence on which to base a finding of alienage and
deportability as to respondent unde
r ocetion 241(2)(2) of the Act.
(3)Under 8 CFR 242.17(d), an application for voluntary departure shall not be held to
constitute a concession of alienage or deportability in any case in which the respondent
does not admit his alienage or deportability. Since respondent's testimony in connection
with his application for voluntary departure simply corroborated what had already been
established by his passport, and his failure to deny that the passportwas his, reliance on
that testimony by immigration judge, while erroneous, was not prejudicial.
CHARGE:

Order: Act of 1952—Section 241(a)(2) U.S.C. 1251(a)(2))—Entered without inspection
Sravrcn:
George Indelicato
Appellate Trial Attorney

ON BEHALF OF RESPONDENT:

ON BEHALF OF

Austin Fragomen, Esquire
Fried, Fragomen & Del Rey, P.C.
515 Madison Avenue
New York, New York 10022

This is an appeal from the November 22, 1974 decision of an immigration judge finding the respondent deportable as charged and directing
his deportation to Argentina. The appeal will be dismissed.
After identifying himself by name and stating that he had received a
copy of the order to show cause from the Immigration and Naturalization Service, the respondent refused 'tó testify aS to his deportability,
asserting the privilege against self-incrimination of the Fifth Amend645

Interim Decision #2486
ment of the United States Constitution, and putting the Service to its
proof of the LIlegations in the order to show cause. The respondent did
testify in support of his application for voluntary departure. The respondent raised several issues and objections during the course of the
deportation proceeding and asserts them now on appeal. We shall respond to each in turn.
To prove that the respondent was an alien the Service introduced an
Argentine passport bearing his name and a photographic likeness of
him. The respondent moved to suppress this evidence as the product of
an illegal search. The passport had been seized by immigration officers
at the Canadian border from a suitcase which was in the possession of a
United States citizen friend and co-worker of the respondent. The
respondent asserted in his motion that the Service had exceeded the
authority of section 287(0 of the Immigration and Nationality Act when
it searched luggage carried by an individual whose United States citizenship was not in question 'and who therefore was not amendable to
exclusion from the United States.
Although the respondent's suitcase was searched and his passport
seized, these personal effects were in the possession of his friend, who
was crossing the United States-Canadian border, and the respondent
himself was not present. The search of the respondent's suitcase was
part of a routine customs border inspection, and it was proper procedure
for the 'customs officer to turn the passport, traveling without its owner,
over to the officers of the Immigration and Naturalization Service at the
border. Furthermore, the respondent's friend made no objection to the
search or to the seizure of the passport, and he testified that if he had
been told of his right to object, he would nevertheless have consented.
Accordingly, we uphold the immigration judge's decision to deny the
motion to suppress the evidence obtained as a result of searching the
respondent's suitcase at the Canadian border.
When he moved to suppress the Service evidence, the respondent
requested than; a separate hearing be held on the motion, or, in the
alternative, that evidence in connection with the motion not be considered in determining the issue of the respondent's deportability. He
cited Simmons. v. United States, 390 U.S. 377 (1968), in support of his

motion. In Simmons the Supreme Court of the United States held that
testimony given by a defendant in criminal proceedings in support of a
motion to suppress evidence on Fourth Amendment grounds could not
thereafter be admitted against him at a trial on the issue of guilt unless
he made no objection. Counsel for the respondent urged that by analogy, evidence in support of a motion to suppress evidence on Fourth
Amendment, grounds should not thereafter be admitted against a respondent in deportation proceedings on the issues of alienage and deportability. .
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Interim Decision #2486
Although the immigration judge denied this request, it does not
appear to us that he determined the respondent's alienage or deportability on the basis of testimony given on the motion to suppress, and in
fact, the respondent did not testify on this motion, although he did
present as a witness his United States citizen friend who carried his
suitcase across the border. Under these circumstances, we do not find it
necessary to address the question of whether a separate hearing should
be held on a motion to suppress evidence, or whether testimony given
by a respondent in support of such a motion should or should not
thereafter be admitted over his objection on the issues of alienage and
deportability.
Counsel for the respondent moved to terminate the proceedings alleging that the Service had exceeded its authority under section 287(a)(2) of
the Act when its officers improperly arrested the respondent without a
warrant on November 13, 1974, when they had sufficient information on
which to base an arrest warrant as early as November 6, 1974. That was
when the respondent's passport was discovered and the respondent's
friend was interviewed at the Canadian border. The order to show cause
and warrant of arrest were not issued until November 14, 1974.
It is possible that a warrant could have been obtained prior to the
respondent's arrest. However, assuming, arguend,o, that there was a
defect in the arrest procedure, it is cured if a resulting deportation order
is adequately supported. Bilokumsky v. Tod, 263 U.S. 149 (1923); La
Franca v. INS, 413 F.2d 686, 689 (C.A. 2, 1969); Vlissidis v. Anadel,
262 F.2d 398, 400 (C.A. 7, 1959).
Counsel for the respondent argues that the Service failed to sustain
its burden to prove alienage and deportability by clear, convincing, and
unequivocal evidence, since the finding of alienage and deportability
was based on the presumption contained in section 291 of the Act. That
section places the burden to show the time, place, and manner of entry
into the United States upon the respondent in deportation proceedings,
and provides that if that burden is not sustained, the respondent shall be
presumed to be in the United States in violation of law. Counsel contends that when the charge is entry without inspection, this statutory
provision places "an impermissible burden" upon the respondent when
he asserts the Fifth Amendment privilege against self-incrimination, for
illegal entry can subject a person to criminal penalties. According to
counsel, in such a case the respondent is in a double bind, for if he
testifies as to how he entered the United States, he is vulnerable to
prosecution for illegal entry, but if he asserts his privilege not to testify,
he is vulnerable to prosecution anyway because illegal entry is presumed under section 291. Thus counsel asserts that it is unconstitutional
to require a respondent to prove the time, place, and manner of entry
under section 291 when the charge is entry without inspection and when
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Interim Decision #2486
the respondent asserts his Fifth Amendment privilege not to testify.
We lack jurisdiction to pass upon the constitutionality of the statutes
we administer. Matter of Chery and Hassan, 15 I. & N. Dec. 380
(BIA 1975); Matter of L—, 4 I. & N. Dec. 556 (BIA. 1951). Moreover, we
agree with the immigration judge that the Argentine passport issued to

a person with the same name as the respondent and containing a photo.graph resembling him, and which does not contain a visa permitting
entry into the United States or a stamp indicating inspection and entry,
coupled with the respondent's presence in the United States and his
failure to de:ay that the passport is his, is clear, convincing, and unequivocal eviience on which to base a finding of alienage and deportability. Therefore, reliance on the section 291 presumption merely provides
corroboration of the respondent's alienage and deportability.
The immigration judge based his finding of alienage and deportability
partly on the respondent's testimony in support of his application for
voluntary departure. Counsel points out that this was improper.
Under 8 CFR 242.17(d) an application for voluntary departure shall
not be held to constitute a concession of alienage or deportability in any
case in which the respondent does not admit his alienage or deportability. In this case the alien steadfastly refused to testify as to alienage or
deportability in the case-in-chief on Fifth Amendment grounds. When
he offered to testify, concerning voluntary departure, he did not intend

to testify as to the manner of his entry into the United States until the
immigration judge indicated that there was no possibility that the
application would be granted unless such testimony were given (Tr. pp.
25-26). Still, counsel for the respondent stated that the respondent's
testimony was to be given "purely for the purposes of our application for
voluntary departure." (Tr. p. 26.) The respondent then stated, among
other things, that he was a native of Argentina and that he had entered
the United States without inspection. The immigration judge relied
partly on this testimony in arriving at the conclusion that the respondent was deportable as charged. He should have disregarded this part of
the respondent's testimony.
There appears to be a misconception concerning the scope of the
testimony of a respondent who is applying for the privilege of voluntary
departure. Such testimony is given for the purpose of ascertaining
whether the respondent is eligible for, and deserves a grant of, that
privilege. To establish eligibility for voluntary departure the respondent need show only that he has been a person of good moral character
for at least five years preceding the application, section 244(e), Immigration and Nationality Act, and that he is willing to depart promptly
from the United States, 8 CPR, 244.1. The testimony of a respondent in

connection with his application for the privilege of voluntary departure
may or may not touch upon alienage and deportability. In any case, such
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testimony must not be used for the purpose of either establishing or
confirming his alienage or deportability. Nevertheless, since the respondent's testimony was simply corroborative of what had already
been established by his passport and his failure to deny that the
passport was his, we are satisfied that the immigration judge's erroneous reliance on that testimony was not prejudicial.
We find the respondent's contention that the immigration judge
abused his discretion in denying voluntary departure to be without
merit.
In view of the foregoing, we agree with the result of the immigration
judge's decision and shall dismiss the appeal.
ORDER: The appeal is dismissed.

649