Quitanilla v. Holder

• Decision Date: 14 July 2014
• Docket Number: No. 12–2329.,12–2329.
• Citation: 758 F.3d 570
• Parties: Tobia Romero QUITANILLA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

758 F.3d 570

Tobia Romero QUITANILLA, Petitioner,

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

No. 12–2329.

United States Court of Appeals,Fourth Circuit.

Argued: May 14, 2014.

Decided: July 14, 2014.

ARGUED: Sam H. Hasan, Hasan Law Group, Falls Church, Virginia, for Petitioner. Edward Earl Wiggers, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Principal Deputy Attorney General, Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Petition for review denied by published opinion. Judge KING wrote the opinion, in which Judge MOTZ and Judge DUNCAN joined.

KING, Circuit Judge:

Petitioner Tobia Romero Quitanilla, a native of El Salvador, sought discretionary relief from removal by way of a special rule cancellation under the Nicaraguan Adjustment and Central American Relief Act of 1997 (the “NACARA”).¹ An Immigration Judge (the “IJ”) denied Quitanilla's request, ruling that he was ineligible for relief because of the “persecutor bar,” codified at 8 U.S.C. § 1231(b)(3)(B)(i). On September 28, 2012, the Board of Immigration Appeals (the “BIA”) denied relief and dismissed. Quitanilla petitions for our review of the BIA's dismissal. Discerning no error, we deny review.

I.

A.

Quitanilla entered the United States from El Salvador without inspection in March 1987. On June 6, 1988, Quitanilla applied for asylum, asserting that he feared persecution by guerilla forces should he return to El Salvador. Between 1989 and 2006, the federal immigration authorities interviewed Quitanilla on at least four occasions in connection with his asylum application and his separate request for special rule cancellation of removal under the NACARA. During the course of those interviews, Quitanilla acknowledged that he had served in the Salvadoran military from February 1982 until early 1987.² Quitanilla elaborated that, after he was discharged from the military, guerillas fighting for opposition forces in El Salvador came to his home seeking food and recruits, and asking for Quitanilla by name. On January 6, 2006, after his final asylum interview, the Department of Homeland Security (the “DHS”) notified Quitanilla of its intent to deny his asylum application for failure to show that he had been persecuted or had a reasonable fear of persecution should he return to El Salvador.³

On April 3, 2006, the DHS sent Quitanilla a final notice of denial of his asylum application, advising that his case had been referred to the IJ for further proceedings. Accompanying the DHS letter was a notice to appear, charging Quitanilla with removability from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), because he is “[a]n alien present in the United States who has not been admitted or paroled.” J.A. 713.⁴

B.

The procedural background of this matter warrants further explanation. On August 11, 1999, Quitanilla filed an application for special rule cancellation of removal under the NACARA. Section 203 of the NACARA (as codified in 8 U.S.C. § 1229b(b)) authorized such a special rule cancellation for aliens who satisfy “certain criteria, including not being either ‘inadmissible or deportable.’ ” See Barahona v. Holder, 691 F.3d 349, 351 (4th Cir.2012) (quoting 8 U.S.C. § 1229b(b), (c)(4)).⁵ As we have explained, “[a]n 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.” Pastora v. Holder, 737 F.3d 902, 905 (4th Cir.2013). Even if a NACARA applicant otherwise demonstrates that he satisfies the NACARA criteria, he may yet be ineligible for cancellation of removal if he falls within one of six mandatory bars specified in 8 U.S.C. § 1229b (c). One of those six bars is the persecutor bar, found at 8 U.S.C. § 1231(b)(3)(B)(i), which provides that an alien is ineligible for special rule cancellation “if the Attorney General decides that” 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 political opinion.” (emphasis added). If “the evidence indicates that one or more of the grounds for mandatory denial of the application for relief”—such as the persecutor bar—“may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).

On December 6, 2001, a DHS officer interviewed Quitanilla in connection with his application for special rule cancellation of removal. During the interview, Quitanilla detailed his Salvadoran military service, explaining that he had been a sergeant in the Third Brigade, stationed in San Miguel, from approximately 1981 to 1984. From 1984 to 1987, Quitanilla served in the “Patrulla de Reconocimiento de Alcance Largo,” also known as the “PRAL,” a long range reconnaissance patrol stationed in Santa Ana. J.A. 654. In the PRAL, Quitanilla's duties included going “out in the villages and look[ing] for guerillas or civilians who looked like guerillas or guerilla sympathizers.” Id.

During his military service, Quitanilla “investigated and arrested about 50 guerillas and civilians who, in his opinion, were terrorists,” many of whom were on lists of wanted terrorists provided by his superiors. Id. Quitanilla, acting on orders from his commanding officers, directed the “arrest [of] wanted terrorists.” Id. Quitanilla denied that he had ever “interrogated or mistreated anyone,” as “his mission was only to capture and deliver” those individuals to his superiors. Id. Quitanilla did not know what happened to his captives because they were always moved to other locations for interrogation. Quitanilla also participated in regular military operations and was involved in five or six combat encounters. Although Quitanilla fired military weapons during these skirmishes, he did not know that he had ever harmed anyone “because of the combat conditions and the distance.” Id. Quitanilla said that he was “unaware that the military was involved in human rights abuses from 1981–1986,” and denied “that he or his military unit harmed anyone.” Id.

On December 7, 2001, based on this interview and other information available concerning human rights abuses by the PRAL and the Salvadoran military, the DHS officer determined that Quitanilla was a persecutor, and was therefore ineligible for a special rule cancellation of removal. See J.A. 657. In so concluding, the officer decided that Quitanilla was “not credible with respect to his inconsistent and vague testimony denying knowledge of military activities and human rights,” reasoning that

[Quitanilla] was present in the areas documented as being areas where human rights abuses took place. It is highly unlikely that [Quitanilla] was not aware of and did not participate in persecutorial acts from 1981–1986. Moreover, [Quitanilla] admitted making about 50 arrests, in which he investigated and/or turned suspected guerillas over to his superiors. While [Quitanilla] denied knowing what happened to them once he gave the prisoners to his superiors, country conditions reports clearly indicate that the prisoners were then routinely interrogated, tortured and sometimes killed.

Id.⁶ Thus, the DHS Officer resolved, Quitanilla had “engaged in persecutorial acts” and was ineligible for special rule cancellation of removal under the NACARA. Id.

C.

Pursuant to the April 2006 notice from the DHS, Quitanilla appeared for an initial IJ hearing in Arlington, Virginia, on November 1, 2006. During the hearing, Quitanilla conceded removability, but maintained that he was nevertheless entitled to special rule cancellation of removal under the NACARA, seeking thereby to amend his NACARA application. On December 27, 2006, Quitanilla again appeared before the IJ and submitted an amended NACARA application. Quitanilla did not, however, renew his asylum application.

On March 15, 2007, the IJ conducted a hearing on Quitanilla's amended NACARA application. After considering Quitanilla's testimony and examining the record, the IJ denied by oral order Quitanilla's application for special rule cancellation of removal. See J.A. 584–92 (the “First IJ Decision”). In so ruling, the IJ evaluated evidence relating to Quitanilla's family, employment, and driving history in this country, as well as his earlier statements to the DHS. Quitanilla also provided the IJ with a DHS report containing a list of approximately 1200 persons who committed human rights violations during the Salvadorancivil war. Quitanilla was not on the DHS list, and relied on his absence therefrom as evidence exonerating him from participating in the persecution of others.

The IJ nevertheless determined that the persecutor bar applied and precluded special rule cancellation of removal because Quitanilla had been a “persecutor of others” and a “party to” torture during his service in the Salvadoran military. See First IJ Decision 7. In explaining that ruling, the IJ found that Quitanilla's testimony concerning his role in the Salvadoran military was not credible, in that it contradicted his previous statements. Specifically, the First IJ Decision found that Quitanilla had arrested guerillas and civilians who opposed the Salvadoran military, explaining as follows:

It is the opinion of the Court that the testimony of [Quitanilla] with respect to the fact that he never arrested anybody in his position as a sergeant with the PRAL unit is not credible. It is the opinion of the Court that [Quitanilla's] statement to the [DHS] officer that he did arrest between 20 and 50 people is the correct statement.

Id. at 5–6. According to the IJ, “individuals could not have been tortured if information were not provided on those individuals...