                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                            March 1, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RADOMIR ZORANOVIC,

      Petitioner,

v.                                                          No. 17-9530
                                                        (Petition for Review)
JEFFERSON B. SESSIONS, III, United
States Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                  _________________________________

      Radomir Zoranovic, a native and citizen of Bosnia-Herzegovina, seeks review

of the Board of Immigration Appeals’ (BIA) decision that affirmed the immigration

judge’s (IJ) decision to deny him a waiver and order him removed from the United

States. We deny the petition for review.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
                                I.    BACKGROUD

       Zoranovic was admitted to the United States as a Serbian refugee in 2002. He

adjusted his status to that of a lawful permanent resident in 2005. In 2007, the

Department of Homeland Security (DHS) issued a notice to appear alleging that

Zoranovic should be removed as an inadmissible alien under 8 U.S.C.

§ 1227(a)(1)(A). According to the DHS, Zoranovic was inadmissible because he

procured entry and adjustment of status by the willful misrepresentation of a material

fact—the failure to disclose his service in the Bosnian Serb army. See 8 U.S.C.

§ 1182(a)(6)(C)(i). Zoranovic conceded removability, but argued for a waiver or to

readjust his status.

       The administrative record discloses the following facts, which are based in

large part on military records and the testimony of an expert witness with deep

knowledge of the Bosnian war, the Bosnian Serb military, and the assault on

Srebrenica.

       Zoranovic served in the military twice—first in the Yugoslav army in the early

1980s and then from 1992 to 1996 in the Zvornik Infantry Brigade, 7th Infantry

Battalion, of the Vojska Republika Srpska (VRS), commonly known as the Bosnian

Serb army. In June 1995, the VRS began planning a military attack on Srebrenica—a

United Nations safe zone established to protect Bosnian Muslim civilians.1


       1
        After Bosnian Muslim forces took control of Srebrenica in 1992, the United
Nations sent its troops to establish a military bunker zone around the city and to
supervise delivery of food and other supplies to the civilian population.

                                           2
According to the expert, the VRS’s “intent [was] to neutralize the [Muslim] enclaves

and eliminate conditions for the further existence of the Muslim population in

Srebrenica.” R., Vol. 1 at 360. To carry out the attack, the VRS established an elite

tactical group, which was composed of several hundred of its most physically fit and

combat-tested soldiers. Zoranovic was nominated by his battalion leader to serve in

the second echelon of the tactical group, which he joined on July 5.

      The assault on Srebrenica began on July 6, when the first echelon—the

artillery unit—began shelling the city. At the same time, the second echelon—the

main infantry division—began attacking the United Nations’ outposts on the southern

edge of the city, and eventually worked its way to Srebrenica itself. On July 11, the

infantry division entered Srebrenica. By the time the infantry entered the city, a large

portion of the civilian population had fled north to the village of Potocari. The

civilians left behind in Srebrenica were moved into a soccer stadium on the north

edge of town.

      The infantry division followed the civilians to the southern edge of Potocari,

where it established a defensive line to prevent escape and “enforced harsh security

measures [to] [e]nsure[] that the expulsion operation of the Bosnian civilian women

and children could proceed without friction.” Id. at 375. While Zoranovic’s unit

held the defensive line, Serb soldiers segregated the boys and men from ages 15 to 65

from the rest of the population, and either executed them or arranged for them to be

moved to other locations and killed. The women and children were loaded onto



                                           3
buses and trucks and transported to Bosnian government territory. By the evening of

July 13, the entire Muslim population had been expelled from Srebrenica.

      On July 13, the infantry unit left Srebrenica to undertake an attack on the

nearby town of Zepa. On July 16, Zoranovic left the tactical unit and returned to the

7th Battalion, having spent the previous day defending against a group of renegade

Muslims who had escaped from Srebrenica. From July 14 to 17, Serb army forces

carried out the mass execution of several thousand Muslim men and boys.

      Zoranovic’s refugee application asked about his military service. He listed

his service in the Yugoslav army from 1980 to 1982, but did not mention his service

in the VRS. Instead, he stated that he fled to Serbia from Bosnia in May 1992, when

the Bosnian war began. And in his later-filed application to adjust his status,

Zoranovic again omitted any mention of his service in the VRS.

      In 2016, immigration officials discovered that Zoranovic had been a member

of the Zvornik Infantry Brigade at the time of the Srebrenica massacre. He was

arrested outside of a health center in Utah and agreed to an interview. He admitted

that he served in the VRS and was part of the elite infantry unit that moved into

Srebrenica in early July 1995. He told immigration officers that when his unit first

arrived in Srebrenica, Serb army forces had already invaded the city and the public

address system was ordering women to report to the soccer stadium. He said he

could see the stadium from the rooftop where he was positioned in uniform and

armed with an assault rifle, and watched the women being loaded onto buses.



                                           4
       In a second interview, Zoranovic added more detail. He told investigators that

on the day Srebrenica fell to Serb forces, he walked past the soccer stadium and saw

“between 1000-3000 individuals assembled on the football pitch. [The] [c]rowd

included men (including men of military age), women and children,” id., Vol. 10 at

3205, and they “were boarding the buses in an urgent manner,” id. at 3206. He

explained that the infantry unit spent the next day or two searching areas around

Srebrenica and went to Zepa. He rejoined the 7th Battalion on or about July 16.

       At his administrative hearing, Zoranovic provided a different narrative. He

admitted that starting on July 6, his tactical unit followed special army forces as they

advanced on Srebrenica. He explained that the infantry’s job was to create a line of

defense by digging trenches behind the advancing forces. Zoranovic said he

eventually took up a defensive position in a house outside or on the outskirts of

Srebrenica. His unit left on July 12 and moved on to Zepa. He eventually rejoined

the 7th Battalion several days later.

       Further, Zoranovic denied that he was ever at the soccer stadium or that he saw

people inside the stadium: “I have not been anywhere near [Srebrenica]. . . . I [did]

not sa[y] I was in [the] city. I did not say I was near [the] city, but I did see the buses

later on leaving . . . because the buses were going the same way . . . the army was

going.” Id., Vol. 2 at 460. When confronted by the IJ with the inconsistencies,

Zoranovic suggested that he may not have understood the interviewers’ questions.

Pressed further, Zoranovic flatly denied telling immigration officers that he was

present at the stadium and armed with an assault rifle.

                                            5
       Speaking about his military service generally, Zoranovic denied that he ever

saw combat while serving in the 7th Battalion, or that he was involved in killing or

capturing prisoners during the assault on Srebrenica. He also denied any knowledge

of the plan to eliminate Bosnian Muslim civilians at Srebrenica, and claimed that he

first learned of the mass executions in late July.

       He told the IJ that he lied about his military service in his refugee application

because he feared he would be denied asylum if it was disclosed. Zoranovic also

testified that he was aware of reports that he could not gain entry to the United States

unless he was a resident of Serbia, so he falsely claimed that he lived there beginning

in 1992. Last, he recanted another false story that he told immigration officials when

he first entered the United States about having been beaten by Bosnian Muslim

soldiers.

       The DHS’s expert witness testified that Zoranovic’s presence at or near the

soccer stadium, including his observation of women were being loaded onto buses,

made him a party to genocide or extrajudicial killings. The expert also cast doubt on

Zoranovic’s testimony that he: (1) never saw combat in the Bosnian war because the

7th Battalion was routinely deployed to combat zones and he was selected for the

elite infantry unit for the assault on Srebrenica; (2) was unaware of any civilian

deaths while in or near Srebrenica because there were many fatalities in the initial

shelling; and (3) did not know about the mass executions until the end of July,

because the attack was broadcasted by Serb leaders, was a common topic of



                                            6
discussion among Bosnian Serb military personnel, and he would have passed mass

graves on his return to the 7th Battalion on or about July 16.

      The IJ credited the expert testimony and Zoranovic’s interview statements—

not his hearing testimony. He denied relief because Zoranovic failed to prove by a

preponderance of the evidence that he did not assist in the genocide or extrajudicial

killing of civilians at Srebrenica. Thus, under § 1182(i)(1), the IJ found Zoranovic

ineligible for a waiver. The IJ further found that even if Zoranovic was eligible to

adjust his status under § 1182(i)(1), he failed to establish extreme hardship to his

United States citizen wife if he was deported. The BIA affirmed.2

                          II.    STANDARD OF REVIEW

      The BIA issued a three-member panel explanatory decision that also

specifically adopted and affirmed the IJ’s decision. Zoranovic argues that even

though the BIA decision adopted and affirmed the IJ’s decision, our review is limited

exclusively to the BIA’s decision. See Uanreroro v. Gonzales, 443 F.3d 1197, 1203

(10th Cir. 2006) (“[When] the BIA . . . conduct[s] a three-member panel review,

which requires the issuance of a full explanatory opinion[,] . . . the BIA opinion

completely supercedes the IJ decision for purposes of our review.”).




      2
        In his appeal to the BIA, Zoranovic pressed the argument that he was entitled
to adjust his status under § 1182(i)(1). He has abandoned that argument, however, in
apparent recognition of the fact that “[n]o court shall have jurisdiction to review a
decision or action of the Attorney General regarding a waiver under [§ 1182(i)(1)].”
§ 1182(i)(2).

                                           7
       We have not specifically addressed whether the scope of our review under

these circumstances properly includes the IJ’s decision. But we need not decide the

issue because the BIA’s decision fully addresses the grounds relied on by the IJ.

       “We consider any legal questions de novo, and we review the agency’s

findings of fact under the substantial evidence standard. Under that test, our duty is

to guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.” Elzour v. Ashcroft, 378 F.3d

1143, 1150 (10th Cir. 2004). The substantial evidence standard is “highly

deferential.” Wiransane v. Ashcroft, 366 F.3d 889, 897 (10th Cir. 2004). In

reviewing the agency’s factual findings, we do not determine how we would decide

the issue de novo or whether any reasonable factfinder could find for Zoranovic.

Instead, under the deferential substantial evidence standard, we must affirm the

agency’s factual findings “unless any reasonable adjudicator would be compelled to

conclude to the contrary.” Uanreroro, 443 F.3d at 1204 (internal quotation marks

omitted).

       Our review is further limited to issues that have been administratively

exhausted. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal

only if . . . the alien has exhausted all administrative remedies available . . . as of

right.”); see also Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010)

(“To satisfy § 1252(d)(1), an alien must present the same specific legal theory to the

BIA before he or she may advance it in court.”). There is a narrow exception to this



                                             8
rule where the BIA sua sponte considers arguments not advanced by the alien. But

the exception applies only where the BIA has

       (1) clearly identif[ed] a claim, issue, or argument not presented by the
       petitioner; (2) exercise[d] its discretion to entertain that matter; and (3)
       explicitly decide[d] that matter in a full explanatory opinion or substantive
       discussion. Only then may a petitioner take an argument to court that he
       never pursued before the BIA.
Garcia-Carbajal, 625 F.3d at 1235.

                                    III.   ANALYSIS

       Zoranovic concedes the failure to disclose his VRS military service was a

material misrepresentation that made him inadmissible for entry. See 8 U.S.C.

§ 1182(a)(6)(C)(i) (“Any alien who, by fraud or willfully misrepresenting a material

fact, seeks to procure . . . admission into the United States or other [immigration]

benefit . . . is inadmissible.”).3 But he contends that he was entitled to a waiver of

inadmissibility under § 1227(a)(1)(H).

       Although a waiver is available under certain circumstances, the agency cannot

grant a waiver to an alien who has participated in genocide or extrajudicial killings.

See id. (“The provisions . . . relating to the removal of aliens . . . on the ground that

they were inadmissible at the time of admission as aliens described in section

1182(a)(6)(C)(i) . . . may, in the discretion of the Attorney General, be waived for

any alien (other than an alien described in paragraph (4)(D),” which specifies


       3
       As an inadmissible alien, Zoranovic was subject to removal under 8 U.S.C. §
1227(a)(1)(A).


                                             9
genocide and extrajudicial killings). Genocide and extrajudicial killings are defined

under § 1182(a)(3)(E)(ii), (iii), to include “[a]ny alien who ordered, incited, assisted,

or otherwise participated in” these activities. Zoranovic bears the burden to show by

a preponderance of the evidence that he was not inadmissible (i.e., that he was not

involved in genocide or extrajudicial killings). See 8 C.F.R. § 1240.8(d) (“[T]he

alien shall have the burden of proving by a preponderance of the evidence that such

grounds do not apply.”).

      According to Zoranovic, he met this burden because this court “must accept

[his] testimony as true because neither the IJ nor the BIA made an express

determination that he was not credible.” Pet’r’s Opening Br. at 17. As authority, he

cites 8 U.S.C. § 1229a(c)(4)(C), which provides “if no adverse credibility

determination is explicitly made, the applicant or witness shall have a rebuttable

presumption of credibility on appeal.” Putting a slightly finer point on the issue,

Zoranovic explains that because the IJ did not make an explicit credibility

determination, “on appeal before the BIA, there was a rebuttable presumption . . .

that [he] testified credibly in Immigration Court,” and because “the BIA did not make

an explicit determination that [his] presumption of credibility had been rebutted,” this

court must “accept [his] testimony as true.” Pet’r’s Opening Br. at 17-18.

      The problem for Zoranovic is that he did not raise the IJ’s alleged failure to

make an explicit credibility determination in his appeal to the BIA, nor did the BIA

sua sponte consider the issue. As such, we lack jurisdiction to consider this

argument. See Garcia-Carbajal, 625 F.3d at 1235, 1237; see also Soberanes v.

                                           10
Comfort, 388 F.3d 1305, 1308-09 (10th Cir. 2004) (“Neglecting to [raise an issue

with] the BIA constitutes a failure to exhaust administrative remedies as to any issue

that could have been raised, negating the jurisdiction necessary for subsequent

judicial review.”).4

       Zoranovic further argues that even if this court is not compelled to accept his

testimony as true, the BIA’s decision is not supported by substantial evidence. In

particular, he argues that he has an “airtight alibi” because the expert testified that he

was not in Srebrencia when the executions took place. Pet’r’s Opening Br. at 21, 32.

But the issue is not whether Zoranovic actually pulled the trigger. Instead, the

question is whether substantial evidence supports the BIA’s finding that he “incited,

assisted, or otherwise participated in” genocide or extrajudicial killings. See

§ 1182(a)(3)(E)(ii), (iii).

       The BIA explained that “the terms used in the statute are given broad

interpretation and ‘do not require direct personal involvement in the acts of

persecution.’” R., Vol. 1 at 5 (quoting Matter of D-R-, 25 I. & N. Dec. 445 (BIA

2011)). Instead, “[t]he [IJ] is permitted to make reasonable inferences among the

plausible possibilities and explanations for discrepancies in the record and he did so.”

Id.


       4
         Zoranovic further argues that he cannot be denied waiver under
§ 1182(a)(3)(E)(iii), because “the so-called Republika Srpska is not and has never
been a foreign nation.” Pet’r’s Opening Br. at 25. But Zoranovic did not raise this
issue with the BIA, nor did the BIA sua sponte consider it. As such, we lack
jurisdiction to consider the argument. See Garcia-Carbajal, 625 F.3d at 1235, 1237.

                                            11
      Among other things, the BIA noted Zoranovic’s membership in the elite

tactical group, his first-hand participation in maintaining a defensive line outside

Srebrencia, and his admissions that he was at the soccer stadium, armed and in

uniform, when he saw women being loaded onto buses. As such, the BIA found that

he failed to “provide[] sufficient evidence that he did not assist or participate in

[genocide or extrajudicial killings].” Id. Under the deferential substantial evidence

standard, we must affirm the BIA’s finding because no reasonable adjudicator would

be compelled to conclude otherwise.

      The petition for review is denied.


                                             Entered for the Court



                                             Bobby R. Baldock
                                             Circuit Judge




                                            12
