JOSE M. ALVARADO, Petitioner,
MATTHEW WHITAKER, [*] ACTING UNITED STATES ATTORNEY GENERAL, Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Matthew S. Cameron for petitioner.
F. Stone, Senior Counsel for National Security Unit, Office
of Immigration Litigation, Civil Division, U.S. Department of
Justice, with whom Chad A. Readler, Principal Deputy
Assistant Attorney General, Civil Division, and Ethan B.
Kanter, Acting Chief, National Security Unit, Office of
Immigration Litigation, were on brief, for respondent.
Maitra, Karen Musalo, Eunice Lee, and Center for Gender &
Refugee Studies were on brief for amicus curiae Center for
Gender & Refugee Studies.
Torruella, Lipez, and Thompson, Circuit Judges.
case requires us to decide, as a question of first impression
for our court, whether the "persecutor bar" --
which disqualifies certain persons from immigration relief --
applies to an applicant who assisted or participated in
persecution but acted without a personal motive to do so. The
petitioner in this case, Jose Alvarado, is a Salvadoran
native and citizen who concedes standing guard for his
superiors while they engaged in an act of persecution. He
denies, however, that he shared their motive to persecute.
immigration judge ("IJ") granted Alvarado
cancellation of removal under the Nicaraguan Adjustment and
Central American Relief Act ("NACARA") after
concluding that the persecutor bar does not apply to Alvarado
because he lacked a motive to persecute. The Board of
Immigration Appeals ("BIA") reversed the IJ's
order, finding the persecutor bar applicable despite the
absence of such a motive.
seeks review of the decision of the BIA. After careful
consideration, we hold that a motive to persecute by an
applicant who assisted or otherwise participated in
persecution is not required for application of the persecutor
bar. Accordingly, we deny Alvarado's petition.
the following facts from Alvarado's testimony before the
IJ, which the IJ found to be credible. From 1981 to
1984, during El Salvador's Civil War, Alvarado served in
the Salvadoran National Guard (the "National
Guard"), which he joined "out of economic
necessity" because of the lack of employment
opportunities. As a member of the National Guard, Alvarado
"could earn enough . . . to just get by."
role in the National Guard was to patrol and provide
security. The specific incident at issue here occurred when
Alvarado was patrolling a town. Alvarado stopped a man and
asked him for identification. He then began to question the
man. Alvarado's supervisors soon arrived at the scene,
took over the questioning, and eventually moved the man to a
different location for interrogation as a suspected guerilla.
During the interrogation, Alvarado stood guard while his
superiors hit the man and placed needles under his
provides, in relevant part, that Salvadoran citizens living
in the United States are eligible for various forms of
immigration benefits and relief from deportation, including
"Special Rule Cancellation of Removal," if they
meet certain requirements. See 8 U.S.C. §
1229b. However, a person otherwise eligible for cancellation
of removal under NACARA is ineligible if he "ordered,
incited, assisted, or otherwise
participated in the persecution of an individual because
of the individual's race, religion, nationality,
membership in a particular social group, or ...