Alvarado v. Whitaker

United States Court of Appeals
For the First Circuit
No. 17-1572
JOSE M. ALVARADO,
Petitioner,
v.
MATTHEW WHITAKER,*
ACTING UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Matthew S. Cameron for petitioner.
Paul F. Stone, Senior Counsel for National Security Unit,
Office of Immigration Litigation, Civil Division, U.S. Department
of Justice, with whom Chad A. Readler, Principal Deputy Assistant
Attorney General, Civil Division, and Ethan B. Kanter, Acting
Chief, National Security Unit, Office of Immigration Litigation,
were on brief, for respondent.
Sayoni Maitra, Karen Musalo, Eunice Lee, and Center for Gender
& Refugee Studies were on brief for amicus curiae Center for Gender
& Refugee Studies.
January 24, 2019
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions III as the respondent.
LIPEZ, Circuit Judge. This case requires us to decide,
as a question of first impression for our court, whether the
"persecutor bar" -- which disqualifies certain persons from
immigration relief -- applies to an applicant who assisted or
participated in persecution but acted without a personal motive to
do so. The petitioner in this case, Jose Alvarado, is a Salvadoran
native and citizen who concedes standing guard for his superiors
while they engaged in an act of persecution. He denies, however,
that he shared their motive to persecute.
An immigration judge ("IJ") granted Alvarado
cancellation of removal under the Nicaraguan Adjustment and
Central American Relief Act ("NACARA") after concluding that the
persecutor bar does not apply to Alvarado because he lacked a
motive to persecute. The Board of Immigration Appeals ("BIA")
reversed the IJ's order, finding the persecutor bar applicable
despite the absence of such a motive.
Alvarado seeks review of the decision of the BIA. After
careful consideration, we hold that a motive to persecute by an
applicant who assisted or otherwise participated in persecution is
not required for application of the persecutor bar. Accordingly,
we deny Alvarado's petition.
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I.
A. Factual Background
We draw the following facts from Alvarado's testimony
before the IJ, which the IJ found to be credible.1 From 1981 to
1984, during El Salvador's Civil War, Alvarado served in the
Salvadoran National Guard (the "National Guard"), which he joined
"out of economic necessity" because of the lack of employment
opportunities. As a member of the National Guard, Alvarado "could
earn enough . . . to just get by."
Alvarado's role in the National Guard was to patrol and
provide security. The specific incident at issue here occurred
when Alvarado was patrolling a town. Alvarado stopped a man and
asked him for identification. He then began to question the man.
Alvarado's supervisors soon arrived at the scene, took over the
questioning, and eventually moved the man to a different location
for interrogation as a suspected guerilla. During the
interrogation, Alvarado stood guard while his superiors hit the
man and placed needles under his fingernails.2
1The IJ noted "inconsistencies" in Alvarado's testimony,
particularly in his description of the incident at issue. However,
the IJ credited Alvarado's explanation for the inconsistencies:
anxiety, depression, and Post-Traumatic Stress Disorder, causing
memory loss, confusion, and nervousness.
2Alvarado testified inconsistently as to what he saw or how
many interrogations he witnessed. At one point, he testified that
he did not witness the interrogation of any suspected guerillas by
his superiors. At another point, he testified that he provided
security for at least five interrogations, including the incident
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B. Applicable Law
NACARA provides, in relevant part, that Salvadoran
citizens living in the United States are eligible for various forms
of immigration benefits and relief from deportation, including
"Special Rule Cancellation of Removal," if they meet certain
requirements. See 8 U.S.C. § 1229b. However, a person otherwise
eligible for cancellation of removal under NACARA is ineligible if
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." 8 U.S.C. § 1231(b)(3)(B)(i) (emphasis added).
This restriction is referred to as the "persecutor bar."
We have noted that, although the persecutor bar has a
"smooth surface," beneath it "lie a series of rocks" creating
interpretive problems, including "the nature of the acts and
motivations that comprise persecution, the role of scienter,
whether and when inaction may suffice, and the kind of connection
with persecution by others that constitutes 'assistance.'"
when he witnessed his superiors hit and put needles under the
fingernails of a man he had detained. From Alvarado's varying
testimony, the IJ concluded that "roughly five times . . .
[Alvarado's] superiors took an individual from [Alvarado's]
custody" and "on one of those occasions [Alvarado] witness[ed] his
superiors place needles under a detainee's nails during an
interrogation." The IJ relied on this single incident to find
that Alvarado had participated in persecutory conduct.
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Castañeda-Castillo v. Gonzales, 488 F.3d 17, 20 (1st Cir. 2007)
(en banc).
In Castañeda-Castillo, we addressed one of these
inquiries -- the role of scienter. See id. That case concerned
an applicant for asylum who had participated in a military
operation during which civilian villagers were massacred. See id.
at 19. The applicant testified that, although his military unit
participated in the operation, his squad was located miles away
from the site of the massacre, and he had no knowledge of the
massacre until three weeks after it had occurred. Id. Because
Castañeda testified that he had no prior or contemporaneous
knowledge of the village massacre, relief under NACARA hinged on
whether the persecutor bar may apply to an alien whose conduct had
the "objective effect" of aiding persecution but who had no prior
or contemporaneous knowledge of the persecution. Id. at 20.
Answering only this question, we held the persecutor bar
"presumptively" inapplicable to an applicant who had no prior or
contemporaneous knowledge of the persecution.3 Id. at 22. We
reasoned that such an interpretation was consistent with the
meaning of the term persecution, which "strongly implies both
scienter and illicit motivation," and common sense notions of
3We noted there may be "gray-area cases where less than full
and detailed knowledge may suffice" for the persecutor bar to
apply, such as "cases of willful blindness or strong suspicions."
Castañeda-Castillo, 488 F.3d at 21.
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culpability, which dictate that a person is not accountable for
wrongdoing of which he has no knowledge. Id. at 20.
C. The IJ's Decision
Before the IJ, the government, citing Castañeda-
Castillo, argued that the persecutor bar applied to Alvarado
because he knowingly assisted or participated in the persecution
of an individual because of that individual's political opinions.
In turn, Alvarado, also citing Castañeda-Castillo, pointed to our
statement there that "'persecution' strongly implies both scienter
and illicit motivation," id. at 20, and contended that the bar was
inapplicable to him because our precedent made persecutory motive
a prerequisite for application of the bar.
In a written decision, the IJ found the persecutor bar
inapplicable. Although the IJ found that Alvarado knowingly4
participated in the persecution of the detainee, she cited the
"illicit motivation" language in Castañeda-Castillo, and found
that Alvarado's actions did not amount to "persecution" because
Alvarado was not personally motivated by the victim's political
beliefs. She credited Alvarado's testimony that "he captured
detainees on the orders of his superiors as a consequence of his
4 In support of the conclusion that Alvarado had prior or
contemporaneous knowledge, the IJ cited the closing argument of
counsel for Alvarado at the hearing, where counsel stated that
Alvarado's "testimony establishes contemporaneous knowledge."
It is not clear whether Alvarado conceded prior knowledge.
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employment," and found that his actions were not motivated by a
desire to persecute a detained guerilla on account of his political
beliefs.
After finding that Alvarado met NACARA's remaining
requirements, the IJ granted him special rule cancellation of
removal.
D. The BIA's Decision
In an appeal to the BIA, the government argued that the
persecutor bar applies to Alvarado and that persecutory motive is
not required for application of the bar to an individual who
assisted or otherwise participated in the persecution. The BIA,
noting that Alvarado "does not contest that he 'assisted' his
superiors' actions and that their acts were committed on account
of the victim's political opinion," or that he had "'prior or
contemporaneous knowledge'" of those acts,5 framed the critical
question in this case as whether Alvarado "was required to have a
5 Although Alvarado contends in his petition for review to us
that he has always contested whether he "assisted . . . or
otherwise participated" in the interrogation tactics of his
superiors, Alvarado did not address this question before the BIA.
Nor did he dispute the IJ's finding that he had prior or
contemporaneous knowledge. Indeed, in his brief to the BIA, he
conceded that this element was met because he "witnessed the acts."
Alvarado cannot "leapfrog over the BIA" by raising these arguments
now. Ramirez-Matias v. Holder, 778 F.3d 322, 327 (1st Cir. 2015).
In immigration cases, "a failure to present developed
argumentation to the BIA on a particular theory amounts to a
failure to exhaust administrative remedies as to that theory."
Id. Accordingly, we lack jurisdiction to review his claims
concerning assistance and knowledge. See 8 U.S.C. § 1252(d)(1).
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persecutory motive when he assisted in the persecution of the
detainee."
The BIA emphasized NACARA's plain language barring
relief for an alien who "assisted . . . in the persecution of an
individual because of the individual's . . . political opinion."
8 U.S.C. § 1231(b)(3)(B)(i). The BIA reasoned that the phrase
"because of" in the statute is best read to refer to the motivation
of the persecutors -- not that of the alien-applicant who assisted
the persecutors. Matter of J.M. Alvarado, 27 I. & N. Dec. 27, 29
(BIA 2017) (citing Bah v. Ashcroft, 341 F.3d 348, 351 (5th Cir.
2003)). The BIA concluded that, if Alvarado participated in
persecution that occurred because of an individual's political
opinions, his personal motivation was irrelevant to the
application of the persecutor bar. Because it was undisputed that
the conduct of Alvarado's superiors was based on the victim's
political opinion, the BIA held that the persecutor bar applied to
Alvarado, precluding NACARA relief. The BIA accordingly ordered
Alvarado removed to El Salvador.
II.
Because the BIA has conducted its own analysis, "we focus
our review on the decision of the BIA." Gonzalez v. Holder, 673
F.3d 35, 38 (1st Cir. 2012). Our review of a decision invoking
special rule cancellation of removal under NACARA is limited to
"constitutional claims and questions of law." Gonzalez-Ruano v.
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Holder, 662 F.3d 59, 63 (1st Cir. 2011). Here, we are presented
with a legal question, i.e., the meaning of the persecutor bar.
We review the BIA's legal conclusions de novo. McCreath v. Holder,
573 F.3d 38, 41 (1st Cir. 2009).
Alvarado argues that Castañeda-Castillo controls the
outcome of this case, citing our discussion of the meaning of
"persecution" in that decision, where we said "the term
'persecution' strongly implies both scienter and illicit
motivation." See 488 F.3d at 20. However, Alvarado is wrong about
the import of the "illicit motivation" language for two reasons.
First, although we said in Castañeda-Castillo that "the term
'persecution' strongly implies both scienter and illicit
motivation," that decision focused on the role of knowledge in the
persecutor bar, not on motive. See id.; see also id. at 22 ("This
would be a different case if the evidence clearly established that
Castañeda had guilty knowledge[.]"); cf. Negusie v. Holder, 555
U.S. 511, 528 (2009)(Scalia, J., concurring) (finding no reason
why the BIA cannot consider questions of knowledge "separate and
apart" from questions of motive). Castañeda conceded that "had
[he] been aware in advance of a plan to murder civilians, his role
. . . could be treated as culpable assistance." Castañeda-
Castillo, 488 F.3d at 20. For this reason, we addressed only the
"narrow[]" inquiry of "whether the persecutor bar would apply to
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Castañeda if he had no prior or contemporaneous knowledge of the
murder of civilians." Id. at 20 (emphasis added).
Second, the language Alvarado cites concerns the meaning
of "persecution," rather than "assist[ance]" or "participat[ion]."
See id. at 20 (describing persecution as "impl[ying] both scienter
and illicit motivation"); id. at 20 n.1 (citing Random House
Dictionary of the English Language (2d ed. unabr. 1987) ("The
dictionary defines 'persecute' as 'to pursue with harassing or
oppressive treatment, esp. because of religion, race, or
beliefs[.]'")). Plainly, persecution requires illicit motivation,
as the persecutor bar itself requires. See 8 U.S.C. §
1231(b)(3)(B)(i) (requiring that persecution be on account of
"race, religion, nationality, membership in a particular social
group, or political opinion"). Hence, there is nothing at all
surprising about the reference in Castañeda-Castillo to illicit
motive when discussing the meaning of persecution, even though the
question of the motive of the persecution was never at issue.
Rather, the question was the link between knowledge and culpability
within the meaning of the persecutor bar.
Now faced with the question of the link between motive
and culpability, we agree with the BIA that the persecutor bar
applies to an alien who knowingly and willingly aided in
persecution, but did so without a persecutory motivation. First,
as the BIA explained, the syntax of the persecutor bar supports
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the agency's interpretation. The statute bars from relief an alien
who "ordered, incited, assisted, or otherwise participated" in
"persecution . . . because of" enumerated protected grounds. As
a general rule, a modifier -- that is, a word or clause that limits
or adds to the meaning of another word -- is adjacent to the word
it modifies or describes.6 See Jane Straus, et al., The Blue Book
of Grammar and Punctuation 23 ("Place descriptive words and phrases
as close as is practical to the words they modify.") (11th Ed.
2014). Thus, here, "because of" modifies "persecution,"
indicating that the pertinent inquiry is whether the persecution
was motivated by protected grounds. By contrast, no such
limitation is attached to the actions of the person who assists.
Rather, the persecutor bar by its terms applies to any "alien who
. . . assisted, or otherwise participated" in the persecutory
conduct. Consequently, the structure of the subsection indicates
that, although the persecutors must be motivated by a protected
ground, the participation of the alien need not be so motivated.
6To demonstrate, consider the two sentences: (1) Mary saw
the dog that used to be hers behind the house. (2) Mary saw the
dog behind the house that used to be hers. In the first sentence,
"that used to be hers" modifies "dog," indicating that the dog was
formerly Mary's. In the second sentence, "that used to be hers"
modifies "house," indicating that Mary had formerly owned the
house.
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See Bah, 341 F.3d at 351 (employing similar reasoning);7 accord
Singh v. Gonzales, 417 F.3d 736, 740 (7th Cir. 2005).
Second, Alvarado relies on a much too narrow view of
culpability. A person who knowingly and voluntarily8 participates
in persecution is sufficiently culpable to be held accountable
under the persecutor bar.9 To hold otherwise, would create
7
In its decision, the BIA cited Bah, 341 F.d at 351, as
consistent with its decision. See Matter of J.M. Alvarado, 27 I.
& N. Dec. 27, 29 (BIA 2017). Alvarado contends that this reliance
was error because Bah is no longer good law in light of Negusie v.
Holder, 555 U.S. 511 (2009). We disagree that Bah is no longer
good law. In Negusie, the Court held its interpretation of the
Displaced Person Act does not compel an interpretation of identical
language in the persecutor bar. See id. at 519-20. Bah did not
find its interpretation of the persecutor bar to be compelled.
See 341 F.3d at 351.
8
This decision does not preclude an applicant from raising a
well-developed argument that he or she knowingly aided in
persecution but did so only because of duress or coercion. Cf.
Negusie, 555 U.S. at 515 (concerning alien who, at the command of
superior officers, assisted in persecution but did so only under
duress). Alvarado has never made such an argument.
9
Alvarado contends that decisions of the Second, Fourth,
Eighth, and Ninth Circuits all support his view of the persecutor
bar. But the cases cited by Alvarado do not interpret the
persecutor bar to require illicit motive to persecute; rather,
they are in accordance with this court's decision in Castañeda-
Castillo, requiring culpable knowledge. See Quitanilla v. Holder,
758 F.3d 570 (4th Cir. 2014) (requiring some level of "culpable
knowledge"); Parlak v. Holder, 578 F.3d 457, 470 (6th Cir. 2009)
(finding petitioner acted "voluntarily and knowingly"); Xu Sheng
Gao v. U.S. Atty. Gen., 500 F.3d 93, 103 (2d Cir. 2007) (requiring
"culpable knowledge"); Xie v. I.N.S., 434 F.3d 136, 144 (2d Cir.
2006) (culpability established by awareness). Alvarado also cites
several cases that discuss what conduct constitutes "assistance."
See Hernandez v. Reno, 258 F.3d 806, 813-15 (8th Cir. 2001);
Miranda-Alvarado v. Gonzales, 449 F.3d 915, 925-30. These cases
likewise do not address the issue of motivation. Alvarado cites
no cases supporting the view that the persecutor bar requires a
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anomalous results. For instance, under Alvarado's view of the
persecutor bar, an alien applicant who repeatedly and voluntarily
bussed innocent Sikhs to a police station, knowing they would be
beaten, see Singh, 417 F.3d at 740, would bear no responsibility
under the bar -- no matter how brutal the police's conduct -- as
long as he did so for a reason other than a personal motive to
persecute.
That result would also be contrary to common notions of
culpability, which dictate that a person is responsible when she
acts knowingly and voluntarily. Although this is not a criminal
case, principles of criminal law illustrate the point. Motive is
generally not an element of a criminal offense unless specifically
stated. See Jerome Hall, General Principles of Criminal Law 88
(2d ed. 1960) ("[H]ardly any part of penal law is more definitely
settled than that motive is irrelevant."); James Fitzjames
Stephen, 3 A History of the Criminal Law of England 18 (1883)
("[T]he motives of the offender ought never . . . enter into the
definition of an offence . . . because they do not affect the
public danger or actual mischief of the crimes which they cause.");
see also United States v. White, 766 F.2d 22, 24 (1st Cir. 1985)
("[E]vidence of a 'good' motive for violating the law is
irrelevant[.]").
finding of illicit motive to persecute on the part of the alien
who assists or otherwise participates in the persecution.
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Finally, Alvarado contends that reading the persecutor
bar to apply to aliens who did not share the illicit motive to
persecute contravenes the purpose of the persecutor bar and asylum
law generally. To the contrary, applying the persecutor bar to a
person who knowingly and voluntarily participated in persecution
is a policy choice consistent with a body of law that was designed
to shelter the persecuted.
III.
In sum, the persecutor bar does not require a showing
that the alien shared the motive of the persecutors whom he
assisted. This interpretation of the bar is consistent with the
plain language of the statute, our precedent, the decisions of
other courts, and common notions of culpability. Accordingly, the
petition for review is denied.
So ordered.
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