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Cite as 28 I&N Dec. 330 (BIA 2021) Interim Decision #4023

引用为 28 I&N Dec. 330 (BIA 2021) 临时决定 #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.

O-R-E- 案，被申请人 2021年7月21日裁定 美国司法部 移民审查执行办公室 移民上诉委员会 (1) 移民法官和委员会无权在驱逐程序中承认衡平法上的怠于行使权利抗辩（laches）。 (2) 被申请人在其《难民分类登记表》（Form I-590）及支持文件上就其姓名、居住地点、离开卢旺达的时间以及政治组织成员身份所作的故意虚假陈述，属于《移民与国籍法》第212(a)(6)(C)(i)条、8 U.S.C. § 1182(a)(6)(C)(i) (2018) 所指的“重大”事项，因此依据该法第237(a)(1)(A)条、8 U.S.C. § 1227(a)(1)(A) (2018)，他可被驱逐。 (3) 证据表明，被申请人下令、煽动、协助或以其他方式参与了卢旺达种族灭绝，且其未提供足够的相反证据以证明其不属于该法第212(a)(3)(E)(ii)条规定的种族灭绝禁止条款的适用范围。 被申请人代理律师：Matthew Lytle Benson, Esquire，俄亥俄州辛辛那提 国土安全部代理律师：Colleen A. Peppard，助理首席法律顾问 审理法官：委员会合议庭：MALPHRUS，副首席上诉移民法官；CREPPY 和 PETTY，上诉移民法官。 PETTY，上诉移民法官： 被申请人为卢旺达国民和公民，于1996年作为难民获准进入美国。国土安全部（“DHS”）认为被申请人虚假陈述了某些个人细节，从而掩盖了其在1994年卢旺达种族灭绝中所扮演的角色，遂于2019年对其启动驱逐程序。一名移民法官认定被申请人可被驱逐，因其在入境时不可入境，并认定被申请人未能证明其有资格获得任何形式的驱逐救济或保护，遂命令将其驱逐至卢旺达。经审查未发现错误，本院将驳回被申请人的上诉。

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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

I. 事实背景 应诉人（respondent）在1994年种族灭绝期间逃离卢旺达。导致种族灭绝的内战始于1990年代初，但却是数十年冲突的最终结果。虽然族裔分类的起源存在一些争议，但卢旺达人口在近代被划分为三个族裔群体：胡图族、图西族和特瓦族。60年前，占多数的胡图族推翻了比利时支持的图西族君主制，在卢旺达建立了共和国。许多图西族人流亡国外，包括在乌干达，卢旺达爱国阵线（“RPF”）即在那里成立。RPF的准军事分支于1990年入侵卢旺达。在一系列武装交战之后，RPF与胡图族主导的全国共和民主运动（以其法语首字母缩写MRND著称）于1993年达成《阿鲁沙协定》，允许RPF参与卢旺达治理。这一安排遭到MRND强硬派的反对，他们试图剥夺RPF在政府中的任何角色。 最终，强硬派与支持《阿鲁沙协定》的MRND温和派成员分裂。1994年4月6日，一架载有卢旺达总统兼MRND领导人Juvénal Habyarimana的飞机被击落。MRND强硬派立即控制了卢旺达政府，并在基加利设置路障以识别图西族人。卢旺达军队——此时已由强硬派控制——与RPF作战，而由MRND组织的名为Interahamwe的民兵对图西族平民实施了种族灭绝。种族灭绝一直持续到1994年7月，RPF对MRND取得军事胜利。到那时，已有750,000至1百万卢旺达人被杀，包括卢旺达图西族人口的四分之三。参见 generally Munyakazi v. Lynch, 829 F.3d 291, 293 (4th Cir. 2016)（提供卢旺达种族灭绝的历史背景）。 应诉人于1996年6月18日作为难民被接纳进入美国。在其《难民分类登记表》（Form I-590）中，应诉人宣誓称他于1994年4月12日前后与妻子逃离卢旺达，因为其妻子是图西族人，受到Interahamwe的威胁。他声称其女儿于1994年6月4日出生在扎伊尔。Form I-590要求应诉人列出“我现在是或曾经是成员、或自我16岁生日以来现在或曾经与之有关联的[政]治、专业或社会组织。”该表格还指示应诉人，如果他从未“是任何组织的成员，请填写‘无’。”在其表格上，应诉人写了“无”。在随附的履历信息（Form G-325C）中，应诉人被要求列出所有使用过的其他姓名。他写了“Roger”。在

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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

1997年12月，被申请人依据《移民与国籍法》第209(b)条、8 U.S.C. § 1159(b) (1994) 申请调整身份。 大约同一时期，卢旺达有数人致信国务院，指称被申请人参与了种族灭绝。但直到很久之后，政府调查才真正开始。两名政府官员于2009年9月前往卢旺达，在6天内与16人进行了交谈，并在此后不久完成了调查报告。所有接受访谈的人都以与被申请人在其Form I-590上所列不同的姓氏认识被申请人，除两人外，其余人均能在照片阵列中辨认出他。大多数接受访谈者还表示，被申请人在基加利Gisozi区被称为“总统”或“委员”1，或是当地MRND或Interahamwe的领导人。一人表示，他自小就认识被申请人，他们是邻居。此人还表示，在他担任Interahamwe成员期间，他从被申请人处接受命令，命令包括应杀害的图西族人名单，并被指示不得将尸体留在街上以免被摄像机拍到。数人指出，被申请人指挥了在St. Famille教堂对图西族人的谋杀，最终有超过150人在那里被杀。调查人员还与被申请人的前配偶进行了交谈，她确认被申请人通常以与Form I-590上所列不同的姓氏为人所知，且他是MRND成员。另一位朋友也确认被申请人是MRND成员。 在被申请人在美国期间，卢旺达就其种族灭绝期间的行为缺席举行了gacaca法院2程序。被申请人被指控“担任Interahamwe主席以及MRND主席。他会批准杀人和饶恕，并收到已完成活动的报告”，且“他就是那个会发出应死者名单的人”。法院记录显示，法院听取了众多证人的证词，并点名确认了12名被申请人直接参与杀害的个人。gacaca程序表明，被申请人在种族灭绝期间是MRND成员并与Interahamwe民兵有关联。2007年，gacaca法院认定

1 In Rwandan usage, the term “Councillor” refers to the executive officer of a sector. 2 “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).

1 在卢旺达用法中，“委员”一词指一个区的行政官员。 2 “由于种族灭绝期间发生的暴力规模巨大，卢旺达社区被赋予起诉大量种族灭绝肇事者的任务。卢旺达社区利用了一套由地方运营的法院系统，称为‘gacaca法院’，来监督起诉工作。” 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)。

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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

认定被申请人“就那些本应死亡的人提供指示”和“监督和控制种族灭绝”罪名成立，并判处其30年监禁。移民法官根据专家证言认定，由于被申请人的定罪系缺席审判作出，若其返回卢旺达，将有权获得重新审判。 非政府组织（“NGO”）African Rights发布了一份30页的报告，详细说明了其自行对被申请人行为的调查，并得出结论认为，被申请人是Gisozi地区的MRND负责人，且作为MRND负责人，他向Gisozi地区Interahamwe负责人Isaïe Ntirushwa下达了命令。African Rights声称采访了20多名目击证人，包括由被申请人武装并听命于被申请人的Interahamwe成员。该报告详细描述了被申请人在1994年4月6日之前组织和武装Interahamwe的活动，以及其在1994年4月7日Habyarimana总统遇刺后立即开展的活动。除其他具体事件外，报告称被申请人下令谋杀了Gisozi地区图西族领袖Alfred Rutaysire，并酷刑折磨一名叫Musonera的男子。后来，被申请人下令设置路障，并建立了“laissez-passer”（通行证）许可制度，该制度在便利胡图族通过路障通行方面“比政府的身份证更重要”，同时剥夺了其他人的行动自由。 2019年6月5日，DHS否决了被申请人的调整身份申请，并将其置于遣返程序中，指控其根据《移民与国籍法》第237(a)(1)(A)条，8 U.S.C. § 1227(a)(1)(A) (2018)，作为在入境时不可入境的外国人而可被遣返，依据包括《移民与国籍法》第212(a)(6)(C)(i)条，8 U.S.C. § 1182(a)(6)(C)(i) (2018)在内的条款，理由是对重大事实的欺诈或故意虚假陈述。3 DHS后来修改了事实指控，并追加了一项指控，即其根据《移民与国籍法》第212(a)(7)(A)(i)(I)条，作为未持有有效入境文件的移民，在入境时不可入境。他根据《移民与国籍法》第208(b)(1)(A)条，8 U.S.C. § 1158(b)(1)(A) (2018)申请庇护，根据《移民与国籍法》第241(b)(3)(A)条，8 U.S.C. § 1231(b)(3)(A) (2018)申请禁止遣返，以及根据实施《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》的条例申请保护，该公约于1984年12月10日通过并开放供签署，G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984)（1987年6月26日生效；对美国于1988年4月18日生效）（“《禁止酷刑公约》”）。他还请求移民法官复审对其申请的否决

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.

3 DHS还指控其根据《移民与国籍法》第212(a)(7)(B)(i)(II)条，作为缺乏有效入境文件的非移民，在入境时不可入境，但该指控后来被撤回。

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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

根据《移民与国籍法》第209条申请调整身份，并同时根据第209(a)条、(c)条和第237(a)(1)(H)条申请豁免其不可入境事由。 被申请人承认，他在I-590表格上就1994年4月至7月期间的居住地点以及其女儿的出生地虚假陈述了信息。他作证称，他在5月或6月被迫离开住所，但一直留在Kigali直至1994年7月。他作证称，他在上学期间约有2个月被称为“Roger”。他承认，他在卢旺达因公务目的使用了与I-590表格所列不同的姓氏，并且在职业上以该另一姓氏为人所知。他解释说，他在移民文书上提供了一个中间名首字母，并声称没有人要求他拼出其中间名，该中间名与他在卢旺达为人所知的姓氏相同。当被问及其图西族妻子如何能够通过政府路障时，被申请人未作回应。 被申请人否认曾在卢旺达加入任何政党、参加过MRND会议或在Kigali见过任何路障。他否认参与种族灭绝。他作证称，卢旺达的证人向政府调查人员提供的实质性信息均不属实。他声称，所有证人均因贪婪和仇恨、为取悦调查人员或为保住工作而提供虚假陈述。或者，被申请人推测，陈述可能被误译或由翻译人员编造。他还质疑某些证人观察所涉事件的能力。当被问及他在被迫离开住所后住在Kigali何处时，被申请人未作回应。然而，他承认，由于判断力差，他在I-590表格上填写了不正确的离开卢旺达日期。他认为，其较晚的离境日期会使人们推断他参与了种族灭绝。被申请人还承认，他就其女儿的出生地点误导了庇护官员，以使其与其所声称的（但已承认虚假的）离开卢旺达日期相符。当被问及他是否出于同样原因在其难民文书中省略了他在卢旺达通常为人所知的姓氏时，被申请人未作回应。自抵达美国以来，被申请人一直积极参与卢旺达组织，并直言不讳地反对现任政府。 四名证人为DHS作证。除两名政府调查人员外，DHS还提供了伦敦大学国际政治学教授Phil Clark博士的证言，作为关于卢旺达种族灭绝历史及司法制度的专家证人

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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.

应对种族灭绝的制度。4 DHS还提供了Todd Gardner的证言，他是美国公民及移民服务局难民、庇护和国际事务处代理分处处长。被申请人未质疑DHS任何证人的可信度，事实上在某些方面依赖Clark博士和Gardner先生的证言，但他对Clark博士关于gacaca法庭制度公平性的评估提出异议。 两名证人为被申请人作证。被申请人的第一名证人作证称，她不知道被申请人的政治派别，也从未知道他的姓氏，从未见过他伤害任何人，并认为Gisozi地区MRND的领导人是另一个人。第二名证人作证称，他于1990年来到美国，此后未返回卢旺达。因此，他对被申请人1994年在卢旺达的活动没有第一手了解。 移民法官维持了可遣返指控，认定DHS以明确且令人信服的证据履行了其举证责任。移民法官认定被申请人不具可信度，且其知情并参与了卢旺达种族灭绝。基于这一不利可信度认定，以及被申请人未能证明其不属于《移民与国籍法》第208(b)(2)(A)(i)条和第241(b)(3)(B)(i)条规定的迫害者禁令范围，移民法官否决了被申请人根据《移民与国籍法》和《禁止酷刑公约》提出的庇护和禁止遣返申请。移民法官还认定，被申请人下令、煽动、协助或以其他方式参与了以法律名义实施的种族灭绝、酷刑或法外处决，致使根据《移民与国籍法》第212(a)(3)(E)(ii)条和(iii)条其不可入境，因而无资格根据第209(a)条、(c)条或第237(a)(1)(H)条结合豁免申请调整身份。或者，移民法官基于案情实质否决了被申请人的庇护和禁止遣返申请。最后，移民法官在认定被申请人未能证明其在卢旺达可能遭受酷刑后，否决了被申请人根据《禁止酷刑公约》提出的暂缓遣返申请。

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.

4 Clark博士认为，非政府组织African Rights在过去5至10年中与现任Kagame政权关系更为密切。因此，其近期的一些出版物反映了更强的政治倾向，而早期工作偏见较少，并包含了一些关于种族灭绝及其后果的重要文献。移民法官完全采信了Clark博士的证言。

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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,

II. 讨论 A. 及时性 作为初步事项，被申请人主张，国土安全部（DHS）本应被禁止对其提起驱逐程序，因为从政府调查开始到驱逐程序启动之间已过去二十多年。被申请人将此主张建立在衡平法上的迟延抗辩原则（laches）之上，并错误地将其框定为第五修正案下的程序性正当程序权利。我们驳回此主张。5 我们通常认为，我们缺乏权力承认衡平法上的抗辩，该抗辩将“阻止[国土安全部]采取其依 statute 和 regulation 有权追求的合法行动方案。”Matter of United Airlines Flight UA802, 22 I&N Dec. 777, 783 (BIA 1999)（引用 Matter of Hernandez-Puente, 20 I&N Dec. 335, 338 (BIA 1991)）。此外，我们适用这一一般原则时不考虑面前程序的形式。见 Matter of United Airlines Flight UA802, 22 I&N Dec. at 783（承运人罚款程序）；Matter of Hernandez-Puente, 20 I&N Dec. at 338（撤销程序）；另见 Matter of Sparrow, 20 I&N Dec. 920, 923–24 (BIA 1994)（在律师纪律程序中驳回 laches 抗辩，理由是 laches“通常不得在政府为执行公共权利或保护公共利益而行动时对其援引”）。 迟延抗辩原则——一种基于提起诉讼时存在偏见性延迟的抗辩——“由衡平法院发展而来。”Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 667, 678 (2014)。然而，我们是“行政机构”，而非衡平法院。Matter of Cerda Reyes, 26 I&N Dec. 528, 528 n.3 (BIA 2015)；另见 Grupo Mexicano de Desarrollo, S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999)（指出建立第三条法院的1789年《司法法》

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).

5 尽管被申请人提及第六修正案的对质条款，但他未就此提出论证。因此，我们认为该问题已被放弃。见 Matter of R-A-M-, 25 I&N Dec. 657, 658 n.2 (BIA 2012)。被申请人还主张，移民法官在未给予被申请人回应机会的情况下批准国土安全部2020年3月18日的紧急重新考虑动议存在错误。然而，被申请人未实质性质疑国土安全部的立场，即移民法官的初始决定遗漏了对必要法律问题的讨论并错误引用了 statute。因此，我们得出结论，该所称错误至多是无害的。见 Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010)（指出当没有“理由相信……发回重审可能导致不同结果”时，错误是无害的（引用省略））；Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462, 467 n.2 (A.G. 2018)（指出不损害被申请人的笔误是无害的）。

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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)).

“赋予联邦法院对‘所有……衡平法诉讼’的管辖权”（引用省略）。在此，国土安全部实施了《法案》下其启动驱逐程序的合法权力。我们未被授予任何权力阻止该合法行为。见 Matter of United Airlines Flight UA802, 22 I&N Dec. at 783；Matter of Hernandez-Puente, 20 I&N Dec. at 338。因为延迟不“足以禁止政府执行国会对此国居住所施加的条件”，INS v. Miranda, 459 U.S. 14, 18 (1982)（per curiam），我们驳回被申请人的 laches 抗辩。 除 laches 外，被申请人还主张，启动程序的延迟侵犯了其第五修正案下的正当程序权利。具体而言，被申请人主张，时间的流逝使准备进入证据的调查报告的探员记忆模糊，这使得交叉询问不如原本可能的那样有用。他还抱怨调查报告包含传闻中的传闻，暗示访谈“发生在极其可疑的情况下”，并声称他无法与探员访谈的证人当面对质或交叉询问。最后，被申请人暗示国土安全部未能以清晰且令人信服的证据履行其证明他可被驱逐的举证责任，因为其调查的很大一部分依赖于在被申请人缺席的 gacaca 法庭程序中所提出的证据，或被申请人主张“缺乏适当翻译证明”或包含难以辨认或不完整文件的证物。 要在正当程序主张中胜诉，被申请人必须证明程序缺乏基本公正性且他因此受到偏见。见 Montanez-Gonzalez v. Holder, 780 F.3d 720, 723–24 (6th Cir. 2015)。国土安全部书面证据的采纳并未使程序根本不公平。若任何文件符合传闻定义且不落入传闻例外——我们拒绝进行此类分析——则已确立的是，传闻规则在移民程序中不具有约束力。见 Matter of D-R- (“D-R- I”), 25 I&N Dec. 445, 461 (BIA 2011)（“传闻在移民程序中可采纳，如果其可靠且具有证明力。”），因其他理由撤销，Radojkovic v. Holder, 599 F. App’x 646 (9th Cir. 2015)；另见 N.L.A. v. Holder, 744 F.3d 425, 436 (7th Cir. 2014)。移民法官在采纳和考虑相关且具有证明力的证据方面拥有广泛自由裁量权。见 Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985)；另见 Matter of D-R- I, 25 I&N Dec. at 458（“在移民程序中，‘采纳证据的唯一检验标准是证据是否具有证明力及其采纳是否基本公正。’”（引用省略））。

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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.

鉴于“试图证明与发生在多年前且距驱逐听证会举行地数千英里之外的事件相关的事实所固有的困难”，“不可避免地会存在只能通过多层传闻来弥合的空白。”Angov v. Lynch, 788 F.3d 893, 908 (9th Cir. 2015)。证据标准灵活性的需要对被申请人而言至少同样迫切，因为“庇护申请人为支持其案件而提交的几乎每一件证据，若受证据规则约束，尤其是有关传闻的规则，都将不可采纳。”Id. 正如第九巡回法院所指出，“迫害者几乎不可能向其受害者提供证明其迫害行为的宣誓书。”Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984)。 在此，移民法官正确认定国土安全部的证据可靠、相关、具有证明力，且其使用基本公正，尤其是考虑到被申请人不可信的证词。见 Matter of D-R- I, 25 I&N Dec. at 461。6 部分证据源自被申请人缺席的 gacaca 法庭审判这一事实本身并不使证据不可靠。与被申请人的主张相反，不存在禁止将缺席审判的事实、由此产生的定罪或与该程序相关的记录采纳为证据的规定。见 Matter of Thomas, 21 I&N Dec. 20, 24–25 (BIA 1995)（指出缺席定罪“至少可以构成相信[个人]犯有所涉罪行的合理根据”（引用 Esposito v. INS, 936 F.2d 911, 914–15 (7th Cir. 1991)））。移民法官未赋予定罪本身任何法律效力。因此，我们未发现正当程序违反。 最后，我们未被被申请人关于移民法官对其有偏见的的主张所说服，因为我们仔细审查了记录并得出结论，移民法官进行了公正的听证，既未表现出对任何一方立场的偏好，也未表现出偏见。见 Matter of Fedorenko, 19 I&N Dec. 57, 72–73 (BIA 1984)，因其他理由被 Negusie v. Holder, 555 U.S. 511 (2009) 废止。被申请人关于移民法官忽视对其有利证据的主张同样无效。记录表明，移民法官考虑了双方提交的所有证据，无论是否在决定中明确提及。

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.

6 事实认定者可以认定证词的传闻性质影响其证明力，但传闻性质并不排除其采纳。Matter of D-R- I, 25 I&N Dec. at 461。此处的移民法官认定证据可靠且具有说服力。

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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

B. 驱逐可能性 根据第237(a)(1)(A)条，受访者因入境时不可入境而具有驱逐可能性，这取决于他是否在I-590表格及支持文件上故意对重要事实作出虚假陈述。基于以下理由，我们认定受访者故意虚假陈述了其姓名、离开卢旺达的时间、其声称逃离期间居住的地点以及其MRND成员身份。我们对这些虚假陈述的重要性进行重新审查。见United States v. Stelmokas, 100 F.3d 302, 317 (3d Cir. 1996)；另见Matter of D-R-（“D-R- II”），27 I&N Dec. 105, 108–09, 112–13 (BIA 2017)（在不可入境语境下适用Kungys v. United States, 485 U.S. 759 (1988)中“自然倾向”的重要性定义——但不适用“合理推断”标准）。7 在其I-590表格上，受访者使用了他受洗时采用的名字、一个中间名首字母以及其父亲的名字。在要求填写所有其他使用过的姓名的部分，受访者提供了“Roger”这一名字，据他解释，这是在学校时有人给他起的绰号，使用了大约2个月。他没有列出他在卢旺达普遍为人所知的姓氏，他在其简报中将其描述为“他的名字”。受访者指出，他之所以在I-590表格上使用其父亲的名字，是因为他是其父亲的长子。受访者后来承认，他未能在其难民申请中列入他出生时被赋予的、为人所知的、受雇时使用的、在学校注册时使用的以及卢旺达其他人通常用来指称他的姓氏。我们承认受访者列出了一个中间名首字母，该首字母可能代表他在卢旺达为人所知的姓氏，但在一个明确要求列出所有其他姓名的表格上未完整列出这一其他姓氏构成虚假陈述。受访者知道他在卢旺达以这一其他姓氏为人所知。列出“Roger”——一个受访者仅在童年短暂使用过的绰号——支持移民法官的认定，即受访者故意隐瞒了他在卢旺达普遍为人所知的姓氏，因为这表明他理解所提问题的全面性质。 身份是获得救济资格所依据的事实基石。虚假陈述一个人的身份对救济申请和免于驱逐的保护具有重要性，因为它损害了裁决者探查

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.

7 重要性不是“若非”检验。United States v. Latchin, 554 F.3d 709, 713 (7th Cir. 2009)（指出Kungys案中Stevens大法官赞成此种方法的立场仅得到另外两位大法官的认同）；另见United States v. Ahmed, 735 F. App'x 863, 869–70 (6th Cir. 2018)。因此，DHS只需证明该虚假陈述“能够影响”裁决者。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

可能具有潜在取消资格性质或与酌情权行使相关的过往行为的能力。它损害了裁决者调查潜在相关过往行为的能力，因为它使裁决者无法看清所涉过往行为属于何人。见Matter of D-R- II, 27 I&N Dec. at 113（指出虚假陈述如果“倾向于切断”与可入境性相关的“调查线索”且“可预见地会披露”与资格相关的“其他事实”，则具有“重要性”）。如果受访者披露了他在卢旺达普遍为人所知的姓氏，裁决者可能会调查他是否就是那个被怀疑（后来被指控并定罪）在Gisozi附近地区种族灭绝中发挥领导作用的人。因此，受访者未能列出其一生中几乎所有用途上为人所知的姓氏具有重要性。 受访者还在I-590表格上写道，他于1994年4月12日流离失所或逃离卢旺达。受访者承认这是一项虚假陈述。在《不可入境理由豁免申请》（I-601表格）上，受访者写道：“我承认我在我的难民申请及1996年提交的随附G-325A表格中就我女儿的出生地以及1994年4月至7月期间我的居住地虚假陈述了信息。”受访者进一步作证称，这一虚假陈述源于“缺乏良好判断力”。他同样表示，他声称女儿出生在扎伊尔而非卢旺达“是因为我们想与……流离失所相匹配”。 关于受访者于1994年4月12日离开卢旺达的声称，如果被相信，将使他免于被视为该日期之后在卢旺达发生的任何种族灭绝行为的参与者。1994年4月6日种族灭绝开始至1994年4月11日期间，仅有约20,000名图西族人和温和派胡图族人被杀害。最终，在1994年4月6日至1994年7月底期间，有750,000至1百万人被谋杀。因此，受访者离开的日期“具有自然倾向”影响裁决者，因为他提供的日期表明他在国外，因而与超过97%的杀戮行为无关。关于受访者女儿出生地的支持性虚假陈述同样具有重要性。事实上，它不仅具有影响裁决者的自然倾向，而且据受访者称，它实际上就是为此目的而计算的。 I-590表格还要求受访者披露其自16岁生日以来曾隶属的所有政治、专业和社会组织。受访者写道“无”。移民法官根据政府的调查、非洲权利报告以及在gacaca审判中提供的证词认定，受访者是MRND的成员。这一认定不存在明显错误，且

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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).

受访者未能披露其成员身份因此构成虚假陈述。 这一虚假陈述同样具有重要性，因为它切断了调查受访者个人参与特定已知事件的线索，如果受访者个人参与其中，可能导致丧失移民福利资格。Matter of D-R- I, 25 I&N Dec. at 450–51（“受访者在难民申请中故意遗漏其在波斯尼亚战争期间是塞族共和国特别警察这一事实，可能影响政府是否给予其难民身份的决定。”）。在此，MRND控制着实施种族灭绝的Interahamwe。因此，受访者未能披露其与MRND的隶属关系切断了关于其参与种族灭绝的调查线索。见Matter of D-R- II, 27 I&N Dec. at 113。基于这些理由，我们维持移民法官关于受访者如所指控具有驱逐可能性的结论。 C. 救济和免于驱逐的保护 移民法官的不利可信度认定使受访者无法确立其获得庇护和禁止驱逐的资格。我们进一步认定，证据表明受访者受《法案》下种族灭绝条款的限制，且受访者的证据未能证明其不受这一强制性条款的限制。因此，受访者被排除于所有形式的救济和免于驱逐的保护之外，但《禁止酷刑公约》下的推迟驱逐除外。我们还将行使酌情权拒绝调整身份和所有豁免。最后，移民法官正确认定受访者未能确立其获得《禁止酷刑公约》下推迟驱逐的资格。 1. 不利可信度认定 真实的证词是庇护程序的基石。我们已经解释，移民法庭系统“没有比”为在本国面临迫害或酷刑的人“提供保护更庄严的职责”。Matter of O-M-O-, 28 I&N Dec. 191, 197 (BIA 2021)。虚假声称“可能使人们对合法声称的有效性产生怀疑”并“削弱”对整个系统的“信心”。Id. at 198（引用Matter of Gomez-Beltran, 26 I&N Dec. 765, 768 (BIA 2016)）；另见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).

我们维持移民法官的不利可信性认定，因为它并非明显错误。参见8 C.F.R. § 1003.1(d)(3)(i)；Matter of J-Y-C-，24 I&N Dec. 260, 263 (BIA 2007)；另见El-Moussa v. Holder，569 F.3d 250, 255 (6th Cir. 2009)（指出法院在“可信性问题”上应尊重移民法官）。移民法官的认定适当基于respondent的证词与书面证据之间的不一致和遗漏，以及其证词的不合理性。参见该法第241(b)(3)(C)条（通过引用纳入该法第208(b)(1)(B)(iii)条）；另见该法第240(c)(4)(C)条，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。 如前所述，respondent在Form I-590上列出了其童年绰号，却未列出其通常为人所知的姓氏。respondent未能合理解释为何在难民申请中列入童年绰号却遗漏该姓氏。respondent还作证称其最后一次在卢旺达是1994年7月，但他在Form I-590上称其于1994年4月12日离开该国。respondent后来承认，他写错日期是因为缺乏良好判断力，并且认为他人会因其较晚离开卢旺达而推断其参与种族灭绝。respondent声称移民法官未考虑其证词的背景或依赖了不重要的事实，我们对此不予采信。 此外，移民法官适当认定respondent关于其本人及其家庭在卢旺达种族灭绝期间个人情况的叙述不合理。参见Wang v. Lynch，824 F.3d 587, 591 (6th Cir. 2016)（规定“[申请人]故事要素的固有不合理性”可证明不利可信性认定正当）。respondent无法清晰说明其本人及其家庭在种族灭绝期间做了什么、住在哪里、其怀孕的图西族妻子如何安全通过路障，或为何在种族灭绝开始后仍在卢旺达逗留如此之久。相反，respondent几乎否认了Government约谈的16名证人提供的每一项信息，并试图攻击数名证人的可信性，却无证据支持其主张。移民法官认定以下情况不合理：Government约谈的证人、在gacaca审判中作证的证人以及1997年致国务院信件的个人均独立提供了针对respondent的虚假或错误证词。参见United States v. Munyenyezi，781 F.3d 532, 538 (1st Cir. 2015)（驳回关于证人感知和可信性的几乎相同论点）。

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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

移民法官还认定respondent的以下主张不合理：尽管他在种族灭绝几乎整个期间都在基加利，却从未见过任何路障。参见Hachem v. Holder，656 F.3d 430, 434–35 (6th Cir. 2011)（维持不利可信性认定，其中移民法官考虑了申请人在申请中和听证会上陈述的简短、其经历缺乏细节、举止以及不合理的陈述）。种族灭绝期间系统协调使用路障识别图西族人的做法已有充分记录，并得到移民法官面前专家证词的确认。一致参见Munyenyezi，781 F.3d at 535（“每天约有7,000名卢旺达人死亡，通常是在为抓捕逃亡图西族人而设置的路障处被挥舞砍刀的Interahamwes屠杀。”）。 移民法官还认定respondent“在回答时回避，经常不回应所问问题，并多次对Court和Department表现出好斗态度。”8 respondent未对这些认定提出异议。相反，他对移民法官的不利可信性认定提出两项质疑。他主张证据表明其本人及其证人可信，且移民法官未考虑三份据称记录其抵达美国以来政治活动的证据。两项主张均无依据。 移民法官认定respondent的两名证人的证词缺乏可信性。特别是，记录中包含一封2014年据称由第一名证人撰写的支持respondent的信件。当面对该信件时，第一名证人否认曾撰写该信，尽管她确认了信件底部的签名。她随后作证称，她可能只是签了名而未撰写该信。此外，第一名证人的证词与其本人的难民申请在1994年4月离开卢旺达家中后在酒店逗留天数方面不一致。她未对这些不一致提供充分解释。 移民法官还适当认定respondent的第二名证人不具可信性。虽然该证人作证称他是卢旺达MRND成员，但其入籍申请（Form N-400）中未包含其隶属关系。此外，虽然第二名证人

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).

8 我们不宜基于respondent或证人的举止对移民法官的认定进行事后质疑。音量、语调、节奏、长时间停顿、面部表情、肢体语言以及其他表明证人已失去虚构主张头绪或已被发现虚假陈述的非语言迹象，在记录转录中往往丢失。参见，例如，Abdulahad v. Holder，581 F.3d 290, 295 (6th Cir. 2009)。因此，基于举止的可信性认定通常获得高度尊重。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

作证称只有他和他父亲是MRND成员，但其庇护申请所附个人陈述称众多大家庭成员是MRND成员，他们遭到酷刑和谋杀。该证人未对这些不一致和重大遗漏提供合理解释。 不利可信性认定是事实认定，我们的审查限于明显错误。根据该标准，我们仅决定移民法官的认定在证据面前是否被允许。参见Matter of J-Y-C-，24 I&N Dec. at 263；另见U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at Lakeridge, LLC，138 S. Ct. 960, 966 (2018)（将事实认定的明显错误标准描述为“对[事实认定者]的严重倾斜”）。由于移民法官的不利可信性认定得到记录支持，故并非明显错误。9 因此，我们同意移民法官的意见，即respondent及其两名证人的可信性缺失使其无法满足庇护和禁止遣返的举证责任。参见8 C.F.R. §§ 1208.13(a), 1208.16(b) (2020)；Slyusar v. Holder，740 F.3d 1068, 1072 (6th Cir. 2014)（“不利可信性认定对庇护和免于遣返救济的申请是致命的，使此类申请无法按其是非曲直审理。”）；Matter of M-S-，21 I&N Dec. 125, 129 (BIA 1995)（同上）。在上诉中，respondent未指出任何证据证明其有资格获得庇护，无论基于何种理由，且独立于其被否定的证词。因此，我们基于移民法官的不利可信性认定，维持驳回respondent根据该法提出的庇护和禁止遣返申请。 2. 种族灭绝禁止条款 respondent还被禁止获得一切形式的救济和免于遣返保护，但暂缓遣返除外，因为他受制于

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.

9 respondent还暗示移民法官未考虑证明其抵达美国以来政治活动的支持信。移民法官在其结论中确实未提及该证据，该结论称respondent“仅依赖其本人和[一名证人]的不可信证词来支持其政治活动”。然而，移民法官的不利可信性认定基于respondent的举止及其在卢旺达所声称行为的不可理性。respondent在美国的活动对移民法官的不利可信性认定并不重要。因此，我们认定此方面的任何错误均属无害。无论如何，respondent所引移民法官决定的部分涉及其对卢旺达迫害的恐惧，而非不利可信性认定。涉及不利可信性认定的部分引用了respondent主张未被考虑的三份证据中的两份。

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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

该法第212(a)(3)(E)(ii)条规定的种族灭绝禁止条款。“[当]外国人申请免于遣返的救济时，该外国人负有举证责任，证明其符合所请求的特定救济形式的资格要求。”Matter of Thomas and Thompson, 27 I&N Dec. 674, 690 (A.G. 2019)（引述该法第240(c)(4)条）；另见Pereida v. Wilkinson, 141 S. Ct. 754, 760 (2021)（“该法规定，‘申请免于遣返的救济或保护的外国人负有举证责任，证明’其‘符合适用的资格要求’且其‘值得行使有利的自由裁量权。’”（第二处修改为原文所有）（引述同上））。“如果证据表明可能适用一项或多项强制拒绝救济申请的理由，该外国人应当负有以优势证据证明该等理由不适用的举证责任。”Matter of M-B-C-, 27 I&N Dec. 31, 33 (BIA 2017)（引述8 C.F.R. § 1240.8(d) (2016)）。 该法第212(a)(3)(E)(ii)条规定，任何下令、煽动、协助或以其他方式参与种族灭绝（定义见18 U.S.C. § 1091(a) (2018)）的外国人均不可入境。第1091(a)条将“种族灭绝”罪定义如下： 基本罪行。——任何人，无论在和平时期还是战争时期，具有全部或实质部分摧毁一个民族、族裔、种族或宗教群体本身的特定意图—— (1) 杀害该群体的成员； (2) 对该群体的成员造成严重身体伤害； (3) 通过药物、酷刑或类似手段对该群体成员的精神能力造成永久性损害； (4) 使该群体处于旨在全部或部分造成该群体肉体毁灭的生活条件； (5) 实施旨在防止该群体内生育的措施；或 (6) 强行将该群体的儿童转移至另一群体…… 该不可入境理由不存在豁免，根据该规定不可入境的外国人被禁止寻求（除其他救济和保护形式外）调整身份、庇护以及该法和《禁止酷刑公约》下的暂缓遣返。见该法第209(a)(2)、(c)、237(a)(1)(H)条（禁止根据第212(a)(3)(E)(ii)条不可入境的申请人豁免其不可入境性并申请调整身份）；Matter of D-R- I, 25 I&N Dec. at 463（规定根据该法第237(a)(4)(D)条10可被遣返的外国人被禁止寻求庇护和暂缓

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.

10 第237(a)(4)(D)条规定，如果外国人属于（除其他条款外）该法第212(a)(3)(E)(ii)条所述情形，则该外国人可被遣返。

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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.

该法和《禁止酷刑公约》下的遣返）；8 C.F.R. §§ 1208.13(c)(1), 1208.16(d)(2)。 尽管答复人对移民法官赋予有关其在卢旺达行为的某些证据的权重提出质疑，但其不争辩1994年春季在卢旺达发生的事情构成种族灭绝。因此，我们面前的问题是，证据是否表明答复人下令、煽动、协助或以其他方式参与了18 U.S.C. § 1091(a)11所定义的种族灭绝，如果是，答复人是否已提出足够的相反证据证明其未这样做。我们认定，证据表明答复人下令、煽动、协助或以其他方式参与了杀害图西人，具有全部或实质部分摧毁图西族人的特定意图，且答复人未能证明并非如此。见该法第212(a)(3)(E)(ii)条；另见18 U.S.C. § 1091(a)(1)–(4)；Matter of M-B-C-, 27 I&N Dec. at 36–37。 证据表明答复人下令实施种族灭绝。一名接受政府调查人员访谈的个人解释说，他本人从答复人处接受命令，命令包括应杀害的图西人名单。这与gacaca法庭记录相印证，该等记录同样表明他人指控其为“签发应死者名单的人”，且答复人被认定犯有“就应死者提供指示”和“监督和控制种族灭绝”之罪。其他证人称，答复人指挥了在St. Famille教堂及其他地方谋杀图西人的行为。五名个人致函国务院，指控答复人作为Gisozi区的Interahamwe领导人指挥并参与了对图西人的灭绝。一人写道，答复人“派了一群杀手到我们家，他们杀害了我的母亲和两个妹妹。”另一人说，他“指示民兵开始杀戮并放火烧房。”此外，有证据表明答复人下令建立路障网络和许可证制度，以便于识别和杀害图西人。

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.

11 《2004年情报改革与恐怖主义预防法》（“IRTPA”），Pub. L. No. 108-458, § 5501(a)(1), 118 Stat. 3638, 3740，将该法第212(a)(3)(E)(ii)条的措辞从“从事被定义为种族灭绝的行为”扩展为更宽泛的表述“下令、煽动、协助或以其他方式参与种族灭绝”。参议院司法委员会的一份报告指出，“这一更宽泛的范围将确保种族灭绝条款涵盖更适当的共谋程度范围。”S. Rep. No. 108-209, at 6, 10 (2003)。协助或以其他方式参与种族灭绝要求“(1) [该]外国人的角色、行为或不作为与[种族灭绝]之间的关联；以及(2) 其明知，即其事先或同时知悉[种族灭绝]。”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

证据还表明答复人煽动种族灭绝。一名接受政府访谈的证人解释说，由于答复人是MRND的领导人，他主持他们的会议，且在这些会议之后MRND有时会杀害图西人。非洲权利报告表明，在Habyarimana总统死后不久，答复人向聚集在Ntirushwa家门前的人群讲话，并说：“我不想浪费时间解释我们为什么在这里。有敌人要去找。你们都装备充分，足以消灭那些希望他们的兄弟inyenzi12席卷全国的人。” 证据还表明答复人协助或以其他方式参与了种族灭绝。正如移民法官所认定的，记录中充斥着此类证据。调查报告包含证人陈述，宣称答复人是MRND的领导和成员。非洲权利报告还详细描述了答复人参与MRND及其在种族灭绝期间的活动。此外，gacaca审判记录表明，答复人在种族灭绝期间是MRND成员并与Interahamwe民兵有关联。他被认定犯有种族灭绝罪；共谋种族灭绝罪；阴谋实施种族灭绝罪；谋杀罪；灭绝罪；以及组建、加入、领导并参与以伤害他人或其财产为目的和存在的犯罪团伙组织罪，被判处30年徒刑。 总体而言，我们同意移民法官的意见，即这些书面证据表明答复人下令、煽动、协助或以其他方式参与了18 U.S.C. § 1091(a)意义上的“种族灭绝”。见Mukeshimana v. Holder, 507 F. App’x 524, 527 (6th Cir. 2012)（per curiam）（认定某人在gacaca法庭因与卢旺达种族灭绝有关的罪行被缺席定罪并被判处19年监禁的证据“表明存在强制拒绝”庇护及相关保护形式的理由）；Matter of M-B-C-, 27 I&N Dec. at 36–37。因此，答复人有责任以优势证据证明该禁止条款不适用。见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。答复人的证据——在相关部分主要由其本人及其证人不可信的证言组成——不足以证明其未下令、煽动、协助或以其他方式参与该法第212(a)(3)(E)(ii)条意义上的“种族灭绝”。因此，我们维持移民法官的认定，即

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

12 字面意思为“蟑螂”，指RPF以及更广泛意义上的图西人。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.

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.”).

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

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.

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.

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