INS Advises on Inadmissibility of Aliens Who Have Engaged in Genocide

July 19, 1999

Memorandum For: Regional Directors, Service Center Directors

FROM: Michael A. Pearson, Executive Associate Commissioner, Office of Field Operations

SUBJECT: Section 212(a)(3)(E)(ii) of the Immigration and Nationality Act (the Act), relating to the inadmissibility of any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide.

PURPOSE: This memorandum is designed to increase awareness among Service Officers of this ground of inadmissibility, and provide education that there are currently aliens who are inadmissible to the United States under section 212(a)(3)(E)(ii) of the Act. Furthermore, this memorandum details procedures for Service Officers to follow, both at Ports-of-Entry and during adjustment interviews, if they suspect that an alien falls under section 212(a)(3)(E)(ii) of the Act.

Definitions

Section 212(a)(3)(E)(ii) of the Act states:

PARTICIPATION IN GENOCIDE.--Any alien who has engaged in conduct that is defined as genocide for purposes of the International Convention on the Prevention and Punishment of Genocide is inadmissible.

The International Convention on the Prevention and Punishment of Genocide defined the term "genocide" as any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group by--

killing members of the group;
causing serious bodily or mental harm to members of the group;
deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part,
imposing measures intended to prevent births within the group, and;
forcibly transferring children of the group to another group.

Furthermore, directing, inciting or conspiracy to commit genocide also constitutes engaging in genocide.

DISCUSSION: The most recent case of genocide occurred in Rwanda in the year 1994, and it is estimated that between 500,000 and 1,000,000 people were slain during a four-month period that began on April 6, 1994. Nearly all the victims of the four-month genocide were members of the Tutsi ethnic group. A detailed discussion of the events in Rwanda during the year 1994 is beyond the scope of this memorandum. However, Service Officers should review the attached Question and Answer Sheet to obtain a brief history of the genocide that took place in Rwanda- The Question and Answer Sheet also identifies certain factors that might be indicative of a suspect Rwandan.

Following the genocide in Rwanda, the United Nations Security Council established the International Criminal Tribunal for Rwanda (ICTR) on November 8,1994. The ICTR was created for the purpose of prosecuting those individuals who participated in the genocide. It is estimated that as many as 7,000 persons throughout Rwanda initially participated in the slaughter in 1994. A significant number of individuals have been arrested and detained for suspicion of involvement in the genocide, and several successful ICTR prosecutions have already occurred. However, it is virtually certain that thousands of individuals who participated in the Rwandan genocide remain at large.

The Department of State (DOS) has taken steps to lessen the possibility that visas will be issued to Rwandan nationals who participated in the genocide. In October of 1994, DOS issued Cable #285528 instructing consular officers to ask Rwandan visa applicants certain questions to ascertain their possible involvement in the atrocities that took place. The DOS has advised the Service that consular officers have asked Rwandan visa applicants those questions since the issuance of that cable. DOS has also formulated a list of Rwandan nationals who are suspected of participation in the 1994 genocide. The Service has obtained this list from DOS, and has arranged to receive any updated versions of the list.

Many of the individuals on this list have been entered in the DOS Consular Lookout and Support System (CLASS). This lookout record is reflected in the Interagency Border Inspection System (IBIS). If immigration inspectors at Ports-of-Entry suspect that an alien may be inadmissible under section 212(a)(3)(E)(ii) of the Act due to participation in genocide, they should access IBIS.

Points of Contact

If a Service officer adjudicating an adjustment of status application suspects that an alien may be inadmissible under section 212(a)(3)(E)(ii) of the Act due to participation in genocide, he or she should contact John Coe in the Department of State Bureau of Consular Affairs at (202)663-1197 to seek an opinion. In the alternative, Service officers may also contact Kevin J. Cummings in HQADN at (202)305-3175.

1994 Genocide in Rwanda - Questions and Answer Sheet

What are some of the "Red Flags" to look for when considering whether a Rwandan National could be suspected of participation in the genocide?

If a Rwandan National was present in Rwanda during April 1994 and beyond, but then left for the refugee camps around July 1994, he or she may be a genocide suspect. The Rwandese Patriotic Front (RPF) seized control of the nation in July 1994.

If a Rwandan National traveled a substantial distance upon his or her departure, this would be indicative of adequate resources, which might have been attained though power and/or influence in the former government.

If a Rwandan National was present in Rwanda during the time of the genocide, subsequently left and never returned, they might fear that the government seeks them. Anyone who says that they cannot return to Rwanda and/or cannot obtain a recent Rwandan passport may be suspect.

If a Rwandan National admits to having been present in the nation from April through July of 1994, he or she should be questioned extensively as to what their daily activities were during that time. Assertions that are vague in nature, or infer normalcy during the genocide, should cast suspicion on the individual. It should be noted that no individual present in Rwanda during the period of genocide simply went about their daily routine (i.e. work or school).

Any Rwandan National who admits to an affiliation or membership in the Rwandan Army, the Presidential Guard, the National Police, or the Interahamweand Impuzamugambi militias during the period that the genocide was carried out should be considered highly suspect. Also, involvement in the interim government from April to July of 1994, or involvement in official radio should cast suspicion.

Affiliation with the following groups during the period of genocide should also cast suspicion:

The National Republican Movement for Democracy and Development (MRND),and; The Coalition for the Defense of the Republic (CDR).

Any Rwandan National with relatives who were imprisoned, convicted, killed, or sought for involvement with the genocide should be questioned extensively.

What led to the genocide in Rwanda?

Ethnic-based civil war began in Rwanda in October 1990 between the Rwandan Army (representing the ruling government) and the Rwandese Patriotic Front (the rebels seeking to overthrow the government). The war formally ended with the signing of the Arusha Peace Agreement on August 4, 1993, which assured that the RPF would have a role in the government.

It is important to note that members of the Hutu ethnic group controlled the Rwandan government at the time, and the members of the RPF were predominantly Tutsi in ethnic origin. Feuds between the two ethnic groups have existed in Rwanda for centuries.

Although the war formally ended with the signing of the Arusha Peace Agreement, implementation of the accord was delayed. On April 6, 1994, Rwandan President Habyarimana (a Hutu) was killed when his plane was shot down as it approached the airport in the nation's capital city of Kigali. Although those responsible for the assassination have never been identified, it is this event which served to start the genocide.

Who was responsible for the genocide in Rwanda?

Analysts believe that Hutu leaders within the government in existence at the time of the president's death were initially responsible. It has been reported that these Hutu extremists used the president's death to launch a slaughter of Tutsis that had been planned for months. Hutu extremists believed that killing Tutsis and all others who did not support Hutu extremist views would eliminate those persons responsible for the concessions made by the peace agreement.

The Presidential Guard of the Hutu government began the slaughter of Tutsis shortly after the death of the president. Those who issued the orders to the Presidential Guard were highly ranked officers within the Rwandan Army and leaders of the Interahamwe and Impuzamugambi militias.

Who were the primary participants in the killing of Tutsis?

The Rwandan Army, the Presidential Guard, the National Police, and the Interahamwe and Impuzamugambi militias were joined by members of virtually every segment of society: doctors, nurses, teachers, priests, nuns, businessmen, government officials of various rank, even children. Political and governmental leaders mobilized popular support for the genocide. one reason why so many members of society were involved in the genocide is because Hutu extremists on the radio incited all Rwandans to exterminate the Tutsis. People were called upon to "assist the armed forces to finish their work." Due to the high rate of illiteracy in Rwanda, the role of radio in inciting the genocide cannot be underestimated.

How was the genocide carried out?

Those senior members of the military initially sought to eliminate all persons who could legitimately govern. The first killings were of influential persons who were thought to be opposed to Hutu extremist views. These killings were carried out through the use of prepared lists of people who were to be killed. Once this was accomplished, those in power focused on the objective of killing members of the Tutsi ethnic group.

The political leaders and militias played a significant role in involving the general population in the killings, often encouraging or forcing people to kill neighbors, friends, and family members. Patrols, curfews, barriers and roadblocks were organized to more effectively capture and kill Tutsis. Large numbers of Tutsis were massacred at places of refuge such as churches, hospitals, schools, even stadiums. People attempting to flee who were detained at barriers or roadblocks were required to show their identification cards or papers as evidence of their ethnicity. These documents became death certificates for Tutsis.

What were the methods of execution?

The killers used firearms, machetes, clubs, grenades, spears and any other weapons that served to accomplish their goal. Tutsis were often tortured or raped before they were finally killed. Some victims were mentally tortured by demands that they kill their spouses or children. The victims included men, women and children. The killers often refused to permit their victims to be buried by those awaiting execution.