- Introduction: Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017)
- Facts and Procedural History: 27 I&N Dec. at 27-28 (BIA 2017)
- Board's Analysis and Decision: 27 I&N Dec. at 28-30 (BIA 2017)
On May 5, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017) [PDF version]. In the decision, the Board held that the persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act (INA) applies to an alien who engaged in assisted or otherwise participated in proscribed persecution without regard to the alien's personal motivation for assisting or participating in such persecution.
To learn more about the persecutor bar, please see the relevant section in our article on withholding of removal [see section].
In this article, we will examine the facts and procedural history of the case, the Board's reasoning and decision, and what the decision means going forward.
The respondent sought special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) [see article]. In order to be eligible for NACARA cancellation of removal, an applicant cannot be subject to the “persecutor bar” found in section 241(b)(3)(B)(i) of the INA. This provision covers an alien who has “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.”
The record in the case reflected the fact that the respondent had served in the Salvadoran National Guard from 1981-1984. This service occurred in the midst of the Salvadoran Civil War. The respondent stated that he had joined the Salvadoran National Guard because he needed to earn money.
During his service in the Salvadoran National Guard, the respondent detained an individual and delivered the individual to his superiors for questioning. The respondent was then ordered to stand guard away from the immediate area of the interrogation and to provide a security patrol during the questioning. The respondent admitted to knowing that his superiors severely mistreated the detainee during questioning and that the mistreatment was due to the detainee's political opinion.
The Immigration Judge determined that the respondent had “assisted” or “otherwise participated” in his superior's mistreatment of the detainee based on political opinion. Normally, this would appear to fall under the section 241(b)(3)(B)(i) persecutor bar. However, the Immigration Judge found that the respondent's actions were the consequence of his service in the Salvadoran National Guard. The respondent had stated that he only joined the Salvadoran National Guard in order to earn money to support himself. The Immigration Judge found this to be distinguishable from a scenario where the respondent assisted or otherwise persecuted in persecution because he was motivated by the victim's political opinion. Accordingly, the Immigration Judge held that, because the respondent had acted solely to earn a living and not with the intent to overcome the political opinion or other protected characteristic of the detainee, he was not subject to the section 241(b)(3)(B)(i) persecutor bar as an alien who had assisted or otherwise participated in the persecution of others based on at least one protected characteristic.
For the foregoing reasons, the Immigration Judge granted the respondent's request for special rule cancellation of removal under NACARA. The Department of Homeland Security (DHS) appealed from that decision to the BIA.
The Board would ultimately disagree with the Immigration Judge and sustain the DHS's appeal. In this section, we will examine the Board's analysis and its reasoning for reaching its decision.
The Board began by noting that the respondent at no time denied that he had “assisted” his superiors in mistreating the detainee on account of the detainee's political opinion. Furthermore, the respondent never denied that he did not have “prior or contemporaneous knowledge” of the persecution. The “prior and contemporaneous knowledge” requirement applies in all cases arising from the jurisdiction of the United States Court of Appeals for the First Circuit, from which the instant case arises, per Castañeda-Castillo v. Gonzales, 488 F.3d 17, 20, 24 (1st Cir. 2007) [PDF version]. Accordingly, the issue before the Board was whether the respondent was required to have a persecutory motive when he assisted in the persecution of the detainee. As we discussed in the previous section, the Immigration Judge held that a persecutory motive was required for the section 241(b)(3)(B)(i) persecutor bar to apply.
The Board explained that it has “a duty to apply the plain language of the [INA] and not to create ambiguity where none exists.” To this effect, the Board cited to the opinion of the Supreme Court of the United States in K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) [PDF version], wherein the Supreme Court held that, where a statute is unambiguous, the Court as well as the relevant administrative agency “must give effect to the unambiguously expressed intent of Congress.”
The Board explained that the section 241(b)(3)(B)(i) persecutor bar unambiguously applies when an alien “ordered, incited, assisted, or otherwise participated in the persecution” of another. Due to the plain language of the provision, the Board held that an alien's motivation in ordering, inciting, assisting, or otherwise participating in persecution is not relevant to the analysis of whether the section 241(b)(3)(B)(i) persecutor bar applies.
The Board discussed in detail the decision of the United States Court of Appeals for the Fifth Circuit in Bah v. Ashcroft, 341 F.3d 348 (5th Cir. 2003) [PDF version]. In Bah, the Fifth Circuit held explicitly that an alien's personal motivation is not relevant to the section 241(b)(3)(B)(i) analysis, and that Congress would have specified motivation had it intended to create such an exemption to the persecutor bar.
The Board held that “[t]he Immigration Judge's determination that the respondent's personal motives were relevant to the applicability of the persecutor bar contravenes the plain language of section 241(b)(3)(B)(i)…” Furthermore, the Immigration Judge cited to the Board's published decision in the Matter of Rodriguez-Majano, 19 I&N Dec. 811, 815 (BIA 1988) [PDF version], abrogated on other grounds by Negusie v. Holder, 555 U.S. 511 (2009). The Board explained that in Rodriguez-Majano, it stated that,”[i]n analyzing a claim of persecution in the context of a civil war, one must examine the motivation of the group threatening harm,” because “persecution requires some degree of intent on the part [of such group].” Specifically, Rodriguez-Majano was concerned with whether the intent of a “group threatening harm” in the civil war context was to persecute on the basis of “race, religion, nationality, membership in a particular social group, or political opinion.” The decision did not stipulate that the intent of an individual who had engaged in persecution on one of those five bases in a civil war was relevant to whether the persecutor bar applied. Accordingly, the Board held that the Immigration Judge had misapplied the Matter of Rodriguez-Majano.
Accordingly, the Board held that the respondent had failed to sustain his burden of establishing that the section 241(b)(3)(B)(i) persecutor bar did not apply to him. This is because, regardless of his personal motives, he had “assisted or otherwise participated” in the persecution of an individual based on the individual's “political opinion.” Because his motives for this action were not relevant to the section 241(b)(3)(B)(i) persecutor bar analysis, he was subject to the bar. The Board held that the respondent was therefore ineligible for special rule cancellation of removal under NACARA. Because the respondent did not request any other form of relief from removal aside from NACARA cancellation, the Board sustained the DHS's appeal, vacated the grant of special rule cancellation of removal, and ordered the respondent removed from the United States to El Salvador.
The Board's decision in the Matter of J.M. Alvarado makes clear that, if it is established that an alien engaged in actions that would render him or her subject to the section 241(b)(3)(B)(i) persecutor bar, the alien's personal motivation for engaging in such conduct is irrelevant. In reaching this conclusion, the Board appealed to the plain language of section 241(b)(3)(B)(i). The persecutor bar arises in certain applications for relief from removal. The reasoning in the Matter of J.M. Alvarado should also apply to the identical persecutor bar for asylum found in section 208(b)(2)(A)(i) of the INA.
Please note that the issue in the Matter of J.M. Alvarado is distinct from the question of whether there exists a duress exception to the persecutor bar. The Board recently invited amicus briefs on the question of whether there is a duress exception to the persecutor bar [see article].
An alien seeking asylum or relief from removal should always consult with an experienced immigration attorney throughout the complicated application process. An attorney will be able to assess the alien's case to determine whether he or she may face barriers to relief such as the persecutor bar.