Nicolas Pastora v. Eric Holder, Jr.
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: A028-674-521. [999256821]. [12-2095]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2095
NICOLAS R. PASTORA, a/k/a Nicholas Pastora−Hernandez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued:
September 17, 2013
Decided:
December 11, 2013
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Petition for review denied by published opinion.
wrote the opinion, in which Judge Niemeyer and
concurred.
Judge Wynn
Judge Floyd
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.
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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.
in 1991.
Pastora applied for asylum
The Immigration and Naturalization Service (“INS”)
granted Temporary Protected Status to Pastora, which expired at
the end of 1994.
In
his
1995
Pastora again applied for asylum in 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).
28.
A.R. 327–
Pastora also wrote: “[a]s head of my unit, I was an obvious
2
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target for the guerrilla organization,” and “I was persecuted
and forced to leave my country by the guerillas.”
In
1999,
Pastora
applied
for
special
rule
A.R. 327–28.
cancellation
of
removal under § 203 of NACARA, Pub. L. No. 105-100, 111 Stat.
2160, 2196 (1997).
that
if
he
were
On his NACARA application, Pastora stated
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,
1
USCIS is a division of the Department of Homeland Security
(“DHS”). In 2003, DHS became responsible for the duties of the
former Immigration and Naturalization Service (“INS”).
See
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002).
2
Over the course of his interviews, Pastora gave
conflicting accounts regarding the length of his service, which
may have been as short as eight years or as long as eighteen
years.
3
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only while on duty.”
informed
Pastora
Pg: 4 of 12
A.R. 354.
that
he
Following this interview, USCIS
“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.
In
2011,
the
IJ
A.R. 361.
conducted
a
hearing
during
which
he
received into evidence two documents submitted by the Department
of
Homeland
violations”
Security
in
the
(“DHS”)
that
communities
lived and patrolled.
in
“detail[ed]
El
A.R. 111, 114–15.
Salvador
human
where
rights
Pastora
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
cancellation of removal.
4
for
special
rule
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The IJ then took testimony from Pastora, Pastora’s son, and
Pastora’s
wife.
organization
guerillas.
Pastora
that
stated
protected
that
the
he
local
was
part
community
of
an
against
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.”
BIA
determined
A.R. 90.
that
Pastora appealed to the BIA.
Pastora’s
admitted
participation
The
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
5
the
persecutor
bar
by
a
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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
preponderance
thus
of
the
erred
in
him
to
that
evidence
requiring
did
not
he
prove
by
engage
a
in
persecution.
“When the BIA and the immigration judge both issue
decisions
a
in
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
decision.
its
agreement
with
the
reasoning
in
the
IJ’s
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
Salvador,
NACARA, 3
and
former
certain
Soviet
nationals
bloc
3
from
countries
Guatemala,
may
apply
El
for
NACARA was enacted in 1997 and amended later that same
year. It “amended the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, which had amended the Immigration
and Nationality Act (the ‘INA’) by rendering certain groups of
aliens inadmissible.” Barahona v. Holder, 691 F.3d 349, 350 n.1
(Continued)
6
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suspension
removal. 4
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of
deportation
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or
special
rule
cancellation
See NACARA § 203, 111 Stat. at 2196–99.
of
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
Immigration
of
and
one
of
the
Nationality
mandatory
Act
bars
contained
(“INA”).
See
8
in
the
U.S.C.
§
1229b(c) (listing six mandatory bars).
At issue in this case is
the
renders
so-called
persecutor
bar,
which
ineligible
for
relief from removal any alien who the Attorney General decides
“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[.]”
evidence
indicates
that
8 U.S.C. § 1231(b)(3)(B)(i).
[the
persecutor
bar]
may
”If the
apply,
the
(4th Cir. 2012).
NACARA is codified in scattered sections of
the United States Code, including Title 8. Id.
4
Applicants whose deportation proceedings began before
April 1, 1997, may apply for suspension of deportation.
8
C.F.R. § 1240.65.
Applicants whose removal proceedings began
after April 1, 1997, may apply for special rule cancellation of
removal. Id. §§ 1240.65, 1240.66.
7
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alien shall have the burden of proving by a preponderance of the
evidence that [the persecutor bar] do[es] not apply.”
§ 1240.8(d). 5
8 C.F.R.
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.”
360.
A.R.
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
5
The text of the regulation, 8 C.F.R. § 1240.8(d), includes
the language “may apply”, which may be in tension with the
language of the statute, 8 U.S.C. §§ 1229b(c)(5), 1231(b)(3)(B),
which requires that the attorney general “decide” that the alien
engaged in persecution before the bar applies.
We note that
some of our sister circuits seem to have read the word “may” out
of the regulation. See, e.g., Diaz-Zanatta v. Holder, 558 F.3d
450, 455 (6th Cir. 2009); Gao v. U.S. Att’y Gen., 500 F.3d 93,
103 (2d Cir. 2007); Singh v. Gonzales, 417 F.3d 736, 740 (7th
Cir. 2005).
We do not confront this issue today because ample
record evidence indicates that the persecutor bar applies here.
8
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walked
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“[p]eople
that
were
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taken
to
be
soldiers”
into
town,
where they were picked up and taken “to San Miguel by truck.”
A.R. 359.
patrol.
There is no evidence that he attempted to quit the
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
“patrullas
admitted
to
cantonales”
patrolling
were
created
for
in
the
his
unit.
early
The
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
communities,
as
well
as
the
dates
that
they
were
killed,
disappeared, sexually assaulted, captured, or tortured.
By 1980, the military began to command and arm the members
of the local groups with rifles, handguns, and machetes.
addition
to
military
and
themselves,
assisting
in
paramilitary
directly
the
persecution
groups,
responsible
9
the
for
carried
local
numerous
out
patrols
human
In
by
the
were,
rights
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abuses.
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In 1983, for example, a local unit carried out the
massacre of seventy Indian peasants in Sonsonate, the community
to which Pastora had moved—and in which he continued patrolling—
in 1982.
The
totality
sufficient
to
of
the
indicate
specific
that
the
evidence
in
this
persecutor
bar
case
was
applied,
requiring Pastora to prove by a preponderance of the evidence
that he did not assist or otherwise participate in persecution.
B.
Next, we turn to the adverse credibility finding.
The IJ
found that Pastora was not credible “because of the cumulative
effect of . . . inconsistencies, omissions and contradictions in
[his] evidence.”
A.R. 91.
The IJ went on to explain each of
these inconsistencies, omissions, and contradictions at length,
noting at one point that Pastora’s confusing and contradictory
testimony “appear[ed] to the Court to represent an attempt by
[Pastora] to hide incriminating information.”
A.R. 92.
upheld the IJ’s determination in its entirety.
review
an
adverse
credibility
determination
substantial evidence exists to support it.
662 F.3d 265, 273 (4th Cir. 2011).
deference
to
a
credibility
finding,
The BIA
On appeal, we
to
ensure
that
Djadjou v. Holder,
Although we accord broad
our
deference
is
not
absolute because the IJ must provide “specific, cogent reasons”
to support an adverse credibility determination.
10
Id.
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Key to the adverse credibility finding in this case was
Pastora’s 1995 asylum application.
In that application, Pastora
stated twice that he had been a commandant in the civil patrol.
Pastora later told an asylum officer and also the IJ that he was
unaware that his application contained such statements, and he
indicated that he depended on others to fill out the forms for
him.
The
1995
application
also
explained
that
Pastora
was
seeking asylum because there had been “too much killing” during
the civil war and because the guerillas were looking for him and
his family.
A.R. 327.
Yet Pastora testified before the IJ that he was unaware of
who the guerillas were and that he had not heard of any human
rights abuses having occurred anywhere that he had patrolled.
He also testified that he did not know who killed his brother
and that he was unaware that his asylum application stated that
the guerillas killed his brother and were looking for him and
his
family.
inadequately
These
explained
are
only
some
discrepancies
examples
in
of
Pastora’s
the
many
statements
over the course of his immigration proceedings.
The IJ was “left not knowing which of Respondent’s accounts
to believe, if any.”
reasons
explaining
inconsistencies
in
A.R. 91.
how
the
Pastora’s
adverse credibility finding.
He listed several specific
cumulative
testimony
led
effect
him
to
of
the
make
the
The IJ thoroughly explained the
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relevance
troubled
of
by
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each
the
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inconsistency,
variety
of
noting
responses
that
that
he
was
Pastora
most
gave
to
questions about the training and weapons that he had received
from the military while in the civil patrol.
When he was asked
to account for his different answers, Pastora denied that he had
made certain statements, said that he did not remember making
other statements,
or
changed
his
account
of
past
events
yet
again.
We agree with the BIA that the record contains substantial
evidence
supporting
the
adverse
credibility
therefore must defer to that finding.
finding.
We
Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004) (“We . . . defer to credibility
findings that are supported by substantial evidence.”). 6
III.
For the foregoing reasons, we deny Pastora’s petition for
review.
PETITION DENIED
6
Pastora argues that any material discrepancies should be
attributed to his age, his illiteracy, or the length of time
that has passed between his testimony and the events that
occurred in El Salvador.
However, the record contains no
evidence that calls into question Pastora’s capacity to testify
truthfully or to recall past events. This unsupported argument
thus fails.
12
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