Alvarado v. Gonzales

• Citation: 449 F.3d 915
• Decision Date: 21 March 2006
• Docket Number: No. 03-70165.,03-70165.
• Parties: Roberto Ferrer MIRANDA ALVARADO; Madeleine Janet Morales Lopez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 915

449 F.3d 915

Roberto Ferrer MIRANDA ALVARADO; Madeleine Janet Morales Lopez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-70165.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 2004.

Submission Vacated November 4, 2004.

Filed March 21, 2006.

Amended June 2, 2006.

Resubmitted June 14, 2005.

COPYRIGHT MATERIAL OMITTED

Nadeem H. Makada, Burlingame, CA, for the petitioner.

Thomas K. Ragland and Marshall Tamor Golding (on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A72-136-241, A72-136-240.

Before: B. FLETCHER, LEAVY, and BERZON, Circuit Judges.

ORDER

The Opinion filed on March 21, 2006 and reported at 441 F.3d 750 (9th Cir.2006), is hereby amended as follows:

1) Footnote 6, 441 F.3d at 759 n. 6, is replaced in its entirety with the following:

The government has invoked only the Chevron deference doctrine. It has not contended here that "individual IJ decisions may be entitled to the lesser form of deference established under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), to the extent that such decisions possess `those factors which give [the agency's interpretation] power to persuade, if lacking power to control.' Id. at 140, 65 S.Ct. 161." Lin, 416 F.3d at 191 (noting but not deciding the question); see also Zhang v. Gonzales, 426 F.3d 540, 544 (2d Cir.2005) ("An IJ's interpretation of ambiguous provisions of the INA is entitled no more deference than the inherent persuasiveness of the IJ's view commands."). Even assuming that Skidmore should be applied, we conclude that the IJ's brief and conclusory decision in this case, which referred to none of the relevant BIA or federal-court persecutor case-law, does not adequately exhibit the requisite Skidmore factors—"the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade," 323 U.S. at 140, 65 S.Ct. 161—to warrant Skidmore deference. Cf. Gao v. Gonzales, 440 F.3d 62, 65 n. 2 (2d Cir.2006) ("[T]he present case does not require us to resolve [the Skidmore deference] issue because the Skidmore factors would not counsel deference to the particular IJ decision at issue.").

2) In Judge Leavy's concurrence, 441 F.3d at 767, the word "the" is deleted in the last sentence of the first paragraph, preceding "our interpretation of the applicable statutes."

With these amendments, the petition for rehearing en banc is denied. Judge Berzon voted to deny the petition for rehearing en banc and Judges B. Fletcher and Leavy so recommended. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

No further petitions for rehearing may be filed.

OPINION

BERZON, Circuit Judge:

We apply a provision of the Immigration and Nationality Act (INA) that forbids the granting of asylum and withholding of removal to individuals who participate in the persecution of others on a protected ground, even if they themselves have a well-founded fear of persecution should they return. Roberto Ferrer Miranda Alvarado ("Miranda") sought asylum and withholding of removal, but an Immigration Judge (IJ) held that Miranda was barred from relief because he had "assisted in the persecution of others . . . on account of their political opinion." See 8 U.S.C. §§ 1101(a)(42) (defining refugees to exclude "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion"), 1158(b)(2)(A)(i) (barring such persecutors from asylum), 1231(b)(3)(B)(i) (barring such persecutors from withholding of removal).¹ We hold that the IJ properly decided that Miranda "assisted in persecution" and is thus ineligible for asylum and withholding of removal.

BACKGROUND

In 1981, Miranda, a native and citizen of Peru, joined the Peruvian Civil Guard in Lima. He was nineteen years old. His duties included protecting government officials and banks from attacks by guerrilla organizations. Because Miranda was a native speaker of Quechua as well as Spanish, he was also assigned to serve as a community leader in an impoverished Quechua-speaking neighborhood on the city's outskirts. In that role his tasks ranged from resolving land-use disputes to preventing infiltration by the guerrilla organization Sendero Luminoso ("Shining Path"). "Sendero Luminoso is a Maoist guerilla organization, founded around 1980, that opposes the current Peruvian government. Sendero Luminoso commits terrorist acts against both government officials and civilians." Cruz-Navarro v. INS, 232 F.3d 1024, 1027 n. 4 (9th Cir.2000). Miranda presented evidence — including evidence that Shining Path members shot another community leader and destroyed her body with explosives — indicating that as a community leader he faced substantial risks from the Shining Path.

Beginning in 1982, Miranda received orders to serve as an interpreter for other officers who interrogated suspected Shining Path members. During interrogations, suspects were often subjected to electric shock torture and beaten on the legs and feet with rubber batons. According to Miranda, "many times in a closed room with sand . . . electrical current was passed into their hands or feet," and the interrogees "shouted and gave expressions of pain." At his hearing, Miranda admitted witnessing these acts but denied personally executing them. He also maintained that he was unable to influence the torture: "I had no power to do anything about it. I wasn't able to do anything about it because that would have been against my superiors." Miranda stated that if he refused, "it would have affected [his] performance rating and[he] would not have been promoted." Miranda attempted formally to resign only in 1988, six years after the interrogations began. He did so assertedly "because I didn't want to belong anymore because I didn't like how the people doing the interrogations abused the Shining Path members," but on his resignation form he cited "family reasons."

Miranda carried out his translating duties two to three times a month for seven years. Asked how he felt watching the interrogations, Miranda replied:

Very bad. I thought about all my family.... [I]f I had been able to do anything about it, I would have never let that happen. If there had been a different kind of authority, it wouldn't have happened. Because it was my orders from my superiors to go and do this work, I had no other alternative than to go do it.... I had to go interpret because I had no other orders.

Miranda was asked if he was "ever able to tell anyone to stop the current or stop doing what they were doing." He answered:

Yes, because I'm a humanitarian and I feel the suffering of other people. And I was able to tell them don't put so much current on or don't put any more because sometimes they couldn't even speak. Yes, because the Quechua that they spoke, many times they couldn't even speak it after they were getting this current, so I would say please don't put any more. And they said to me you're just an interpreter. You shouldn't give your opinion here. You're supposed to just come and interpret what they are saying.

In 1989, Miranda requested and received "anti-terrorist and survival training." In the course of his training, he helped capture three Shining Path members who had attacked the training group. These guerrillas threatened Miranda and his companions, stating that "each of you will die; we never forget anyone." Upon returning home Miranda found that his wife and children had been visited by masked men who stole his police uniforms and painted or posted Shining Path slogans on the walls.

Miranda removed his family to a small city sixty miles to the south. He remained in Lima to carry out his police duties. He slept at the police station, returning to his Lima residence only every few days to take care of the family dog. In August 1990, Shining Path members again vandalized Miranda's property and killed his dog. They painted "we'll never forget you" on the walls and pinned a note to the corpse of his dog with a threat: "[Y]ou will die in the same way."

Miranda fled to the United States on August 26, 1990, and his wife followed in 1992. Miranda applied for asylum in June 1993. He stated in his asylum application that: "I have been directly targeted [by the Shining Path] because of my police work and anti-terrorist ... training, and ideologies." His asylum application was referred to the Immigration Court because "[a]lthough the applicant has demonstrated a well-founded fear of persecution, he is barred from receiving asylum in the U.S. because he participated in the persecution of others."

The former Immigration and Nationalization Service (INS)² charged Miranda with being present in this country without being admitted or paroled. At the removal hearing, Miranda admitted the allegations and conceded removability, but requested asylum and withholding of removal. The IJ denied Miranda's application, concluding that:

even if Mr. Miranda did not interrogate Shining Path detainees and apply electric shocks or beat them, he was a necessary part of the interrogation. Without his services as a Quechua interpreter, the interrogations could not proceed. With his services, they did proceed. Over six years, the respondent participated in such interrogations two to three times per month or approximately 144 to 216 times. He did not protest his role at any time despite his stated qualms and he did not seek to resign from police service until 1990, even assuming that his resignation application...