Nicolas Pastora v. Eric Holder, Jr. , 737 F.3d 902 ( 2013 )

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. Judge Wynn
wrote the opinion, in which Judge Niemeyer and Judge Floyd
concurred.
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.
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
2
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,
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
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.
4
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
5
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
3
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
suspension of deportation or special rule cancellation of
removal. 4 See 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”). See 8 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 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[.]” 8 U.S.C. § 1231(b)(3)(B)(i). ”If the
evidence indicates that [the persecutor bar] may 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
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
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
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
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. In
addition to assisting in the persecution carried out by the
military and paramilitary groups, the local patrols were,
themselves, directly responsible for numerous human rights
9
abuses. 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 of the specific evidence in this case was
sufficient to indicate that the persecutor bar 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. The BIA
upheld the IJ’s determination in its entirety. On appeal, we
review an adverse credibility determination to ensure that
substantial evidence exists to support it. Djadjou v. Holder,
662 F.3d 265, 273 (4th Cir. 2011). Although we accord broad
deference to a credibility finding, our deference is not
absolute because the IJ must provide “specific, cogent reasons”
to support an adverse credibility determination. Id.
10
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. These are only some examples of the many
inadequately explained discrepancies in Pastora’s statements
over the course of his immigration proceedings.
The IJ was “left not knowing which of Respondent’s accounts
to believe, if any.” A.R. 91. He listed several specific
reasons explaining how the cumulative effect of the
inconsistencies in Pastora’s testimony led him to make the
adverse credibility finding. The IJ thoroughly explained the
11
relevance of each inconsistency, noting that he was most
troubled by the variety of responses that Pastora 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 finding. We
therefore must defer to that finding. 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