Pastora v. Holder

• Decision Date: 11 December 2013
• Docket Number: No. 12–2095.,12–2095.
• Citation: 737 F.3d 902
• Parties: Nicolas R. PASTORA, a/k/a Nicholas Pastora–Hernandez, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

737 F.3d 902

Nicolas R. PASTORA, a/k/a Nicholas Pastora–Hernandez, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–2095.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 17, 2013.

Decided: Dec. 11, 2013.

ARGUED:William Robinson Heroy, Goodman, Carr, Laughrun, Levine & Greene, Charlotte, North Carolina, for Petitioner. Alison Marie Igoe, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Principal Deputy Assistant Attorney General, Lyle D. Jentzer, Senior Counsel for National Security, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.

Petition for review denied by published opinion. Judge WYNN wrote the opinion, in which Judge NIEMEYER and Judge FLOYD concurred.

WYNN, Circuit Judge:

The issue on appeal is whether the evidence in this case is sufficient to require an applicant who is seeking relief from removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) to bear the burden of proving that he did not engage in persecution in his home country. We hold that the record contains evidence sufficient to trigger the applicant's burden, and we agree with the Board of Immigration Appeals (“BIA”) and the Immigration Judge (“IJ”) that the applicant did not meet his burden. Accordingly, we deny the petition for review.

I.

Nicolas Rene Pastora–Hernandez (“Pastora”) was born in El Salvador in 1941. He entered the United States illegally in 1986, was granted voluntary departure in 1988, and illegally reentered the United States in 1989. Pastora applied for asylum in 1991. The Immigration and Naturalization Service (“INS”) granted Temporary Protected Status to Pastora, which expired at the end of 1994. Pastora again applied for asylum in 1995.

In his 1995 asylum application, Pastora wrote that he “served in the Civil Patrol unit” and that he was a commandant of his unit in his hometown (San Luis de la Reina). A.R. 327–28. Pastora also wrote: “[a]s head of my unit, I was an obvious target for the guerrilla organization,” and “I was persecuted and forced to leave my country by the guerillas.” A.R. 327–28. In 1999, Pastora applied for special rule cancellation of removal under § 203 of NACARA, Pub.L. No. 105–100, 111 Stat. 2160, 2196 (1997). On his NACARA application, Pastora stated that if he were removed to El Salvador he “would face the possibility of being punished for not supporting the Civil War.” A.R. 301.

In 2006, an officer with the United States Citizenship and Immigration Services (“USCIS”) ¹ interviewed Pastora in connection with his NACARA application. In response to a question about whether he had “ever served in the military or in the police” in El Salvador, Pastora answered that he had volunteered in the civil patrol for three hours per week for twelve years in San Miguel and in Sonsonate.² Pastora also stated that he had carried a knife in connection with his volunteer duties and that “the military would give firearms for a short period of time, only while on duty.” A.R. 354. Following this interview, USCIS informed Pastora that he “appeared to be barred from relief under section 240A(c)(5) of the Immigration and Nationality Act (persons who ordered, incited, assisted, or otherwise participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion).” A.R. 265.

In 2009, during an interview with a second asylum officer, Pastora reaffirmed his participation in the civil patrol, and he stated that his rank was “cabo,” which was “above soldier but below sergeant.” A.R. 358–59. Pastora testified that he was given weapons training, but he denied ever engaging in combat or seeing anyone arrested, harmed, or taken prisoner. He stated that he reported to “the commandante [sic] from the army in San Sonate [sic]” every weekend. A.R. 361.

In 2011, the IJ conducted a hearing during which he received into evidence two documents submitted by the Department of Homeland Security (“DHS”) that “detail[ed] human rights violations” in the communities in El Salvador where Pastora lived and patrolled. A.R. 111, 114–15. The documents included a table that listed the names of victims and violators. The IJ also admitted a 2006 USCIS memo to the file that explained why USCIS found Pastora to be ineligible for special rule cancellation of removal.

The IJ then took testimony from Pastora, Pastora's son, and Pastora's wife. Pastora stated that he was part of an organization that protected the local community against guerillas. However, when he was asked to explain his duties, his rank, his length of service, and whether he carried a weapon or received training, Pastora gave testimony that conflicted with what he had previously told the asylum officers in his sworn statements. Pastora's lawyer acknowledged to the IJ that Pastora's testimony had “not been easy” and that Pastora had been inconsistent in both of his USCIS interviews. A.R. 179.

Upon consideration of the evidence, the IJ deemed Pastora barred from relief because he was unable to meet “his burden of proof to show that the persecutor bar to relief under NACARA does not apply.” A.R. 90. Pastora appealed to the BIA. The BIA determined that Pastora's admitted participation in the civil patrol, coupled with the government's evidence of human rights violations that occurred during the time and in the place that Pastora patrolled, was sufficient to trigger Pastora's burden “to show by a preponderance of the evidence that the persecutor bar does not apply.” A.R. 3. The BIA dismissed the appeal, finding no clear error in the IJ's adverse credibility determination and, under de novo review, a failure by Pastora to show “the inapplicability of the persecutor bar by a preponderance of the evidence.” A.R. 5. Pastora petitions this Court for review.

II.

A.

With his first argument on appeal, Pastora contends that the IJ and the BIA incorrectly determined that the persecutor bar applied and thus erred in requiring him to prove by a preponderance of the evidence that he did not engage in persecution. “When the BIA and the immigration judge both issue decisions in a case, we review both decisions upon appeal.” Kourouma v. Holder, 588 F.3d 234, 239–40 (4th Cir.2009). Here, the issues on appeal arise from the BIA's affirmance of the IJ's decision and its agreement with the reasoning in the IJ's decision. We review issues of law de novo, Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir.2007), and factual findings under the substantial evidence standard, reversing only if the evidence compels a contrary finding, 8 U.S.C. § 1252(b)(4)(B).

Under NACARA,³ certain nationals from Guatemala, El Salvador, and former Soviet bloc countries may apply for suspension of deportation or special rule cancellation of removal.⁴See NACARA § 203, 111 Stat. at 2196–99. An applicant seeking cancellation of removal under NACARA bears the burden of establishing by a preponderance of the evidence that he meets all of the applicable requirements for relief. 8 C.F.R. §§ 1240.8(d), 1240.64(a).

A noncitizen who meets his burden under NACARA may nonetheless be ineligible for cancellation of removal due to the applicability of one of the mandatory bars contained in the Immigration and Nationality Act (“INA”). See8 U.S.C. § 1229b(c) (listing six mandatory bars). At issue in this case is the so-called persecutor bar, which renders ineligible for relief from removal any alien who the Attorney Generaldecides “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 political opinion[.]” 8 U.S.C. § 1231(b)(3)(B)(i). “If the evidence indicates that [the persecutor bar] may apply, the alien shall have the burden of proving by a preponderance of the evidence that [the persecutor bar] do[es] not apply.” 8 C.F.R. § 1240.8(d).⁵ As we stated in Higuit v. Gonzales, 433 F.3d 417 (4th Cir.2006), “[i]f there is evidence that the alien engaged in persecution, he must prove by a preponderance of the evidence that he is not barred from relief on this ground.” Id. at 420.

In this case, the administrative record contains Pastora's sworn statements that he served as a leader in a local civil patrol for as many as seventeen or eighteen years during the height of El Salvador's civil war. Starting in 1969, he worked two nights per week “trying to collect people for the army.” A.R. 360. He received two months of training in 1983 regarding how to “let the military know where the guerrillas are.” A.R. 360. Pastora was also given rifle training and a machete to take with him on his patrols. Sometimes the military provided him with firearms while he was on duty. He reported the results of his patrol to the military base on a weekly basis, and he walked “[p]eople that were taken to be soldiers” into town, where they were picked up and taken “to San Miguel by truck.” A.R. 359. There is no evidence that he attempted to quit the patrol. Rather, Pastora testified that he served voluntarily in the two communities in which he lived until he left the country in 1986.

The record also contains evidence of numerous human rights abuses committed by armed groups associated with the military—local patrols such as Pastora's—in the area and during the years that Pastora admitted to patrolling for his unit. The “patrullas cantonales” were created in the early 1900s, and between 1967 and 1969 they were organized and expanded into a well-run militia force. These local patrols were pervasive throughout the country, and they served as the eyes and ears of the military and other paramilitary groups that were notorious for massive and widespread human rights abuses. The record contains a list of the names and ages of victims in Pastora's...