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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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Pickering, Lisa Diane OHS/ICE Office of Chief Counsel • LOS
Law Office of Roni P. Deutsch 606 S. Olive Street, 8th Floor
16255 Ventura Blvd Los Angeles, CA 90014
Suite 1120
Encino, CA 91436

Name: M ,N - -196

Date of this notice: 12/1/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)


U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 196 - Los Angeles, CA Date:


DEC - 1 2017
In re: N M

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IN REMOVAL P ROCEEDINGS

APPEAL

ON BEHAL F O F RE SPONDENT: Lisa Pickering, Esquire

APPLICATION: Adjustment of status

The respondent, a native of Yugoslavia and a citizen of Serbia, appeals from an Immigration
Judge's November 15, 2016, decision denying her application for adjustment of status under
section 245 of the Immigration and Nationality Act, 8 U.S.C.§ 1255. The appeal will be sustained
and the record will be remanded for further proceedings consistent with this order.

We review an Immigration Judge's factual determinations, including credibility


determinations, for clear error. See 8 C.F.R. § 1003.l(d)(3)(i) (2017). The Board uses a de novo
standard of review for questions of law, discretion, judgment, and all other issues in appeals from
decisions of Immigration Judges. See 8 C.F.R.§ 1003.l(d)(3)(ii) (2017).

The respondent, as an applicant for relief, bears the burden to show, for purposes of her
adjustment of status application, that she is eligible for relief, and merits it in the exercise of
discretion. 8 C.F.R. § 1240.8. An adjustment application is usually granted in the absence of
adverse factors. Factors such as family ties, hardship, and length of residence in the United States
are considered positive factors meriting a favorable exercise of administrative discretion. Matter
ofArai, 13 l&N Dec.494 (BIA 1970). Where negative factors exist, the alien may be required to
show unusual or even outstanding offsetting equities. Id.

The respondent applied for adjustment of status pursuant to the approved visa petition filed on
her behalf by her son, who is a naturalized citizen of the United States (U at 2). The respondent
has family ties in the United States, has no criminal record, and has multiple letters of
recommendation in the record attesting to her honesty, kindness, and fitness for a positive exercise
of discretion (U at 2; Exh. R-2). Although she was found by the Immigration Judge to be statutorily
eligible for the relief of adjustment of status, this relief was denied in the exercise of discretion
because of the actions of the respondent's former husband, a Serbian national who was indicted
for war crimes by the International Criminal Tribunal for the Fonner Yugoslavia (ICTY).

Specifically, the Immigration Judge found that the ex-husband enriched himself through a
brutal campaign of ethnic cleansing, including murder, rape, robbery, and looting, and that the
respondent, in tum, "profited directly" from her husband's crimes (U at 3). Due to these actions,
the respondent enjoyed an "unchanged ...lifestyle" during the war in the former Yugoslavia, and
could "procure whatever foods she desired, including organic meat and vegetables" (U at 3). In
contrast, the Immigration Judge found that "average Serbs had great difficulty purchasing food"
(/d). Additionally, the Immigration Judge found that the respondent allowed herself to accept
Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)
Pl. 196

support from her ex-husband even after she left him in 1994, in the form of housing and child
support "(U at 4). Furthermore, the hnmigration Judge noted that the respondent sued to contest
her ex-husband's will so that she could "continue[] ...to profit from [his] misdeeds" (U at 4).

The respondent challenges the hnmigration Judge's conclusions that she was living a lavish
lifestyle because of her husband's misdeeds, and contends that the hnmigration Judge

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mischaracterized the evidence of record and was not an impartial trier-of-fact (Respondent's Br.
at 12-14). The respondent also argues that she was unaware until many years later that her ex­
husband was guilty of such deplorable crimes since he was portrayed in the Serbian media as a
hero while she lived there (Respondent's Br.at 14-15).

We are persuaded by the respondent's appellate contentions, and will sustain the appeal and
grant relief as a matter of discretion. First, the weight of the evidence does not support the
Immigration Judge's finding that the respondent leveraged her ex-husband's ill-gotten gains to live
a lavish lifestyle during the war in the former Yugoslavia Rather, she testified that she had no
money for anything other than food while she lived in Belgrade during the war years from 1991-
1993 (Tr. at 96). She testified that after her brother was killed in the war in 1991, she rarely went
out and used an employee of the family's cafe to procure food for her (Tr. at 87). While it is true
that the respondent was able to obtain fresh food during the war, this does not appear to differ
significantly from the experience of the average resident of Belgrade, given that the evidence
reflects that citizens of this city did not experience hunger during the war and were generally able
to obtain food grown in nearby agricultural areas (Tr.at 37; Exh.R-4).

The respondent's standard of living in Greece, where she moved after leaving her husband in
1994, also appears to have been modest. While she did accept financial support from her ex­
husband, she testified that it went to the children and for their living expenses (Tr. at 94).
Furthermore, the respondent and her four children shared a three-bedroom apartment in Greece,
and she worked part-time and studied to learn the language (Tr. at 93-95). Her children attended
a private American school because they did not speak Greek, but had learned English in Belgrade
(Tr.at 111-12). In sum, we find that the record lacks support for the Immigration Judge's factual
finding that the respondent lived a lavish lifestyle and knowingly profited from her ex-husband's
misdeeds. The record also lacks support for a conclusion that the respondent was aware of her
husband's crimes, as witnesses testified that he was depicted in local media as a hero and a
defender of Serbian rights (Tr. at 33-34, 41, 51).

The record is unclear about why the respondent contested her ex-husband's will and when she
became aware of the full extent of his extensive war crimes. She experienced a severe illness in
1999 and her recovery extended for several months including to the time of the release of the
indictment against her ex-husband in April 1999 (Tr.at 102-03). She stated that she had difficulty
accepting that he had perpetrated the heinous acts that he was accused of, and that in any case, she
was not in regular contact with him (except for discussing their children) since leaving Serbia in
1994 (Tr. at 101-05). Even if she were aware of his past at the time she contested his will, that,
standing alone, does not provide support for a discretionary denial of relief in our view.
Furthermore, our review of the record does not reflect that she was an uncooperative or hostile
witness (U at 5). At the same time, we decline to address the respondent's due process arguments
or her contention that the hearing below was not impartial, given the result reached herein.

2
Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)
196

Considering the record as a whole, we are persuaded by the respondent's appellate argument
that the record reflects adequate positive equities to offset any negative considerations arising due
to her association with her ex-husband. Matter ofArai, 13 I&N Dec. at 494.

We will therefore enter an order vacating the Immigration Judge's denial of relief, and
remanding this record to the Immigration Court to grant the respondent's application for relief

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upon successful completion of background checks and other relevant investigations. The
following orders are hereby entered.

ORDER: The respondent's appeal is sustained and the November 15, 2016, order is vacated.

FURTHER ORDER: Pursuant to 8 C.F R. § 1003.l(d)(6), the record is remanded to the


.

Immigration Judge for the purpose of allowing the Department of Homeland Security the
opportunity to complete or update identity, law enforcement, or security investigations or
examinations, and further proceedings, if necessary, and for the entry of an order as provided by
8 C.F.R. § 1003.47(h).

&rv� FORTHEB '

Cite as: N-M-, AXXX XXX 196 (BIA Dec. 1, 2017)


(

... UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

File No.: )
)

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In the Matter of: ) IN REMOVAL PROCEEDINGS
)
M )
N )
)
Respondent )

CHARGE: Immigration and Nationality Act (INA) Section 237(a)(I)(C)(i)­


nonimmigrant alien who engaged in unauthorized employment

APPLICATIONS: Adjustment of Status

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:


Lisa Diane Pickering, Esquire Ingrid Abrash, Senior Attorney
Law Offices of Roni P. Deutsch U.S. Department of Homeland Security
16255 Ventura Boulevard, Suite 1120 606 South Olive Street, Eighth Floor
Encino, California 91436 Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL IDSTORY

On March 7, 2014, the Board of Immigration Appeals (Board) upheld the Court's
determination that Respondent and her children are not eligible for asylum, withholding, or
protection under the Convention Against Torture. On August 29, 2014, the Board reopened
Respondent's case, severed it from those of her children, and remanded to the Court to determine
if Respondent is eligible for adjustment of status.

On February 6, 2015, Respondent filed a Form 1-485, Application to Register Permanent


Residence or Adjust Status (Form 1-485) with the Court. Exh. RI at 2. On February 29, 2016,
Respondent's sponsor, Nikola Martinovic, testified on her behalf, as did her friends Sara Sedlick,
Donka Nemar, Daniela Aleksich, and Catherine Farfan. On March 14, 2016, June 2, 2016, and
July 27, 2016, Respondent testified in support of her application. On July 27, 2016, Michael
MacQueen, an expert on the former Yugoslavia, testified on behalf of the DHS.

For the following reasons, the Court DENIES Respondent's application.


II. LAW, ANALYSIS AND FINDINGS OF THE COURT

A. ·Statutory Eligibility for Adjustment of Status

An alien bears the burden of establishing her eligibility for relief.


See 8 C.F .R.
§ 1240.8(d); Young v. Holder, 697 F.3d 976, 988 (9th Cir. 2012) (en bane). The Attorney
General may adjust the status of any alien who was inspected and admitted or paroled into the

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United States to that of a lawful permanent resident. INA§ 245(a). To be eligible for
adjustment of status, an alien must: (1) file an application for adjustment of status, (2) be eligible
to receive an immigrant visa, (3) be admissible to the United States for permanent residence, and
(4) have an immigrant visa immediately available to her at the time his application is approved.
Id; 8 C.F.R. § 1245.l (a).

Respondent has filed a Form 1-485 with the Court. Exh. RI at 2. She has been approved
for an immigrant visa as the parent of a United States citizen; as such, she is eligible for an
immigrant visa and there is one immediately available to her. See INA§ 210(b). Further, the
Department has identified no grounds on which Respondent would be inadmissible to the United
States for permanent residence, and the Court can find none in the record. Finally, the
Department conceded on February 19, 2016, that Respondent is statutorily eligible for
adjustment of status. As such, the Court concludes that Respondent is statutorily eligible for
adjustment of status.

B. Discretion

As well as meeting the statutory criteria for adjustment of status, an alien must
demonstrate that she merits a favorable exercise of discretion. Matter ofArai, 13 l&N Dec. 494,
495 (BIA 1970); Matter ofBlas, 15 I&N Dec. 626, 629 (BIA 1974; AG 1976). The
"extraordinary discretionary relief' of granting adjustment of status in removal proceedings,
which dispenses with the ordinary consular procedures for adjustment of status, "can only be
granted in meritorious cases." Blas, 15 I&N Dec. at 630. The existence of favorable factors
such as family ties, hardship, and length of residence in the United States are considered
countervailing factors that may overcome adverse factors such that an alien merits the favorable
exercise of discretion. Id.

Respondent does have some positive equities. She has lived in the United States for over
a decade, albeit mostly illegally. She has a United States citizen son and many United States
citizen friends who have written letters and testified as to her honesty and kindness. See Exh.
R3, Tabs 0, R; Exh. R2, Tab 6. Further, it does not appear that she has committed any crimes in
the United States. See Exh. R2, Tab 5.

Nevertheless, the Court finds that Respondent does not merit discretionary relief, as she
directly profited from crimes against humanity. As discussed in the Court's prior decision,
Respondent was married to Zelkjo Raznatovic, commonly referred to as Arkan, a notorious
Serbian war criminal and organized crime leader. 1 Arkan was indicted by the International

1 The Court's prior analysis of Respondent's ties to Arkan and her unsuitability for discretionary relief is as relevant
in the adjustment context as it was in the asylum decision, and is hereby incorporated by reference.

2
..

Criminal tribunal for the Former Yugoslavia (ICTY) for the atrocities he committed in the
Balkans in the 1990s. Exh. 5A, Tab B at 6. Arkan took control of the Bosnian town of Sanski
Most and detained non-Serbs, robbing them of valuables and expropriating their property. Id at
8. He and his soldiers abducted a large number of people, held them in squalid conditions,
beating them and depriving them of food and water. As a result, two of the prisoners died. Id at
9-10. Finally, Arkan and his men took the prisoners to a secluded area, raped the only woman in
the group, and murdered them. Id.

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Arkan and his men "tortured, mutilated, and killed" non-Serb civilians as part of a
campaign of ethnic cleansing, and extorted money from the survivors who tried to flee. Id, Tab
C at 22. He and his soldiers removed Croat patients from a hospital and slaughtered them. Id.,
Tab H at 34. Arkan profited handsomely from his war crimes, expropriating the money and
belongings of his non-Serb victims. Id at 38.

At this time, the economic situation in Serbia was dire. Both expert testimony and
documentary evidence shows that Serbia was in the midst of massive hyperinflation, such that
average Serbs had great difficulty purchasing food. See Exh. R4, Tab A2. Ordinary Serbs were
reduced to preindustrial foodstuffs and recipes from the Second World War. Id. at 13-15.
"Even though fruit and vegetables were available to buy at green markets, most people could not
afford the cost unless they had foreign currency savings to spend on food." Id at 18. While
many Serbs had family in the countryside they could turn to for food, gasoline was extremely
expensive, and the bus system was greatly reduced. Id According to Mr. MacQueen, Serbs
experienced a level of privation not seen since the Second World War.

Respondent benefitted from Arkan's plundering and war profiteering to avoid the
suffering of her fellow countrymen. Respondent testified that her lifestyle was unchanged by the
war, and that she was able to procure whatever foods she desired, including organic meat and
vegetables. She would tell the chef of the restaurant she and Arkan owned what she wanted, and
he would purchase it for her. She would occasionally go to the market to purchase food, and
always had enough money to purchase what she wanted. Farmers also came to her home to
deliver food to her. Mr. MacQueen opined that this was only possible due to the hard currency
income produced by Arkan's criminal activity.

The Court is not persuaded otherwise by Respondent's evidence. In particular,


Respondent's witnesses Ms. Farfan and Ms. Sedlick have no first-hand knowledge of conditions
in Serbia, and Ms. Nemar did not testify as to conditions in Serbia in the 1990s. Ms. Aleksich
testified that while her family did not starve, they did have to make sacrifices and adjust what
they ate during the war. The evidence shows that Respondent's ability to maintain the same
standard of living as before the war was unusual. Mr. MacQueen testified that the only way a
person could have maintained their prewar standard of living in the early 1990s would have been
to have a steady supply of foreign hard currency. Respondent testified that she did not work, but
rather stayed home to care for her children; as such, her economic stability in the midst of the
greatest period of inflation in modem history was only possible due to her husband's income. As
Arkan made his money through robbery and looting his victims, Respondent profited directly
from his war crimes.

3
Respondent's claim that she did not benefit from Arkan's misdeeds is even more
implausible when her lifestyle after leaving Serbia is taken into account. Respondent admitted
that Afkan purchased two apartments for her and the children in Greece, with a combined area of
162 square meters, or approximately 1750 square feet. Nor was his support limited to buying her
a large residence; Arkan provided ongoing financial support for her and the children. Arkan's
money paid for Respondent's children to attend an elite private school attended by the daughter
of the Ambassador of the Uwted States. See Exh. R3 at 10. Respondent's insistence that Arkan

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only provided for the children, rather than for her, is belied by her testimony that she only
worked part-time and earned little money. As such, the Court finds that Respondent lived for
many years in Greece from the profits of Arkan's war crimes.

Respondent further relied on Arkan's wealth to establish herself in the United States. She
testified that her move to the United States was financed in large part by the rental and sale of the
apartment Arkan gave her. As such, the money that Arkan obtained from crimes against
humanity was instrumental in enabling Respondent to enter this country.

Respondent's attempts to contest Arkan's will and regain ownership of his mansion from
his new wife show a continued desire to profit from Arkan's misdeeds. Respondent filed a
lawsuit in Serbian court to have Arkan's will declared invalid, with the aim of having her and her
children inherit some of Arkan's property. See Exh. 3A. Importantly, this lawsuit was filed
after Respondent, by her own admission, was told by Arkan that he had been indicted for war
crimes. Respondent testified that she never read the indictment and trusted Arkan when he said
it was all lies. Given that Respondent knew of Arkan's extensive prior violent criminal history,
her decision to ignore the indictment and assume that any new charges against him were false is
willful blindness. Respondent testified that she knew that Respondent was a bank robber who
continued his criminal career after they were married (and after he had sworn to mend his ways);
as such, her decision to blindly trust his assertion that the ICTY indictment was based on
untruths was entirely unreasonable. Respondent may not have wanted to know the details of
Arkan's crimes, but she seemingly had no qualms about profiting from them.

While Respondent testified on remand that she had no interest in the property, would
have given it away if she had won, and was only seeking to expose government corruption, this
is a novel assertion. Respondent never testified at the original hearings that she did not want to
recover the property she believed was owed to her and her children, nor did she give any
indication that she would not have kept it, despite being extensively questioned on the matter.
She testified that she hired a lawyer as soon as she heard that the will excluded her and her
children. The Court finds that Respondent's shifting story lacks credibility, and concludes that
she sought to profit from Arkhan's war crimes by inheriting his property.

Respondent argues that she consistently opposed Arkan's going to war and building a
private army, and that this should prevent his activities being a ground for denying her relief.
See Resp't's Closing Statement. The record does show that she opposed Arkan's going to war.
See Exh. 8A, Tab Vat 12. However, there is no indication in either her testimony or the record
that she opposed the war for any but personal reasons. Respondent opposed her husband going
to war because she wanted him to spend more time at home with her and her children. She did
not want her brother to go to war because she was worried he would be killed. Finally, she

4
opposed the war because she blamed Arkan for her brother's death. Respondent did not oppose
the invasion of Croatia and Bosnia; she opposed her family being involved. She did not oppose
violations of human rights and war crimes; she wanted her husband to spend more time at home
and her brother to be safe. Most importantly, she did not refuse to benefit from Arkan's crimes.
Even after Arkan himself informed her that he had been indicted by the ICTY for war crimes,
Respondent did not bother to read the indictment, relied on Arkan's statement that it was false,
and continued accepting his money.

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The Court also notes Respondent's dissembling and unwillingness to submit to cross­
examination. Respondent was hostile and uncooperative when questioned by the OHS,
repeatedly refusing to answer questions and telling the OHS (and at times the Court) to read the
evidence or listen to her witnesses. This arrogance and disrespect for the judicial process is
unwelcome from an applicant seeking discretionary relief, especially one with significant
negative equities.

The Court declines to exercise its jurisdiction on the behalf of an alien who benefitted for
decades from horrendous crimes against humanity. While Respondent herself was not involved
directly in Arkan's crimes, she stayed with and accepted money from a man involved in the mass
murder, rape, torture, and robbery of civilians. The wealth that Arkan accumulated from his
crimes allowed Respondent to weather a massive economic downturn unharmed, live in an
expansive apartment in Greece, and send her children to an elite private school to hobnob with
diplomats' children. Finally, Arkan's stolen money allowed Respondent to move to the United
States and buy a house. Respondent's privileged lifestyle was built on the foundation of
atrocious crimes against humanity. The Court will not reward this by granting her discretionary
relief.

Accordingly, the following order will be entered:

ORDER

IT IS HEREBY ORDERED that Respondent's application for adjustment of status


pursuant to INA§ 245(a) be DENIED.

IT IS FURTHER ORDERED that Respondent be removed from the United States to


SERBIA on the charge contained in the Notice to Appear.

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any
appeal is due at the Board of Immigration Appeals on or before thirty (30) calendar days from
the date of service of this Order.

Dated: November 15, 2016


TARA NASELOW-NAHAS
Immigration Judge