Tobia Quitanilla v. Eric Holder, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2329
TOBIA ROMERO QUITANILLA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: May 14, 2014 Decided: July 14, 2014
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Petition for review denied by published opinion. Judge King
wrote the opinion, in which Judge Motz and Judge Duncan joined.
ARGUED: Sam H. Hasan, HASAN LAW GROUP, Falls Church, Virginia,
for Petitioner. Edward Earl Wiggers, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart
F. Delery, Principal Deputy Attorney General, Mary Jane Candaux,
Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
KING, Circuit Judge:
Petitioner Tobia Romero Quitanilla, a native of El
Salvador, sought discretionary relief from removal by way of a
special rule cancellation under the Nicaraguan Adjustment and
Central American Relief Act of 1997 (the “NACARA”). 1 An
Immigration Judge (the “IJ”) denied Quitanilla’s request, ruling
that he was ineligible for relief because of the “persecutor
bar,” codified at 8 U.S.C. § 1231(b)(3)(B)(i). On September 28,
2012, the Board of Immigration Appeals (the “BIA”) denied relief
and dismissed. Quitanilla petitions for our review of the BIA’s
dismissal. Discerning no error, we deny review.
I.
A.
Quitanilla entered the United States from El Salvador
without inspection in March 1987. On June 6, 1988, Quitanilla
applied for asylum, asserting that he feared persecution by
guerilla forces should he return to El Salvador. Between 1989
and 2006, the federal immigration authorities interviewed
Quitanilla on at least four occasions in connection with his
asylum application and his separate request for special rule
1
Although references in the record are inconsistent, we
refer to the Petitioner as “Tobia Romero Quitanilla.”
2
cancellation of removal under the NACARA. During the course of
those interviews, Quitanilla acknowledged that he had served in
the Salvadoran military from February 1982 until early 1987. 2
Quitanilla elaborated that, after he was discharged from the
military, guerillas fighting for opposition forces in El
Salvador came to his home seeking food and recruits, and asking
for Quitanilla by name. On January 6, 2006, after his final
asylum interview, the Department of Homeland Security (the
“DHS”) notified Quitanilla of its intent to deny his asylum
application for failure to show that he had been persecuted or
had a reasonable fear of persecution should he return to El
Salvador. 3
On April 3, 2006, the DHS sent Quitanilla a final notice of
denial of his asylum application, advising that his case had
been referred to the IJ for further proceedings. Accompanying
the DHS letter was a notice to appear, charging Quitanilla with
2
Although there is some dispute concerning the dates of
Quitanilla’s military service, that discrepancy does not bear on
our analysis.
3
Quitanilla initially filed his asylum application with the
DHS’s predecessor, the Immigration and Naturalization Service
(the “INS”). The Homeland Security Act of 2002 abolished the
INS and transferred its functions to the DHS. See Ivanov v.
Gonzales, 487 F.3d 635, 637 n.2 (8th Cir. 2007). Because the
INS has been abolished, we refer to the immigration agency as
the DHS. The Attorney General is the proper respondent in
petitions for review of BIA removal decisions. See 8 U.S.C.
§ 1252.
3
removability from the United States pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i), because he is “[a]n alien present in the
United States who has not been admitted or paroled.” J.A. 713. 4
B.
The procedural background of this matter warrants further
explanation. On August 11, 1999, Quitanilla filed an
application for special rule cancellation of removal under the
NACARA. Section 203 of the NACARA (as codified in 8 U.S.C.
§ 1229b(b)) authorized such a special rule cancellation for
aliens who satisfy “certain criteria, including not being either
‘inadmissible or deportable.’” See Barahona v. Holder, 691 F.3d
349, 351 (4th Cir. 2012) (quoting 8 U.S.C. § 1229b(b), (c)(4)). 5
As we have explained, “[a]n 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.” Pastora v. Holder, 737
F.3d 902, 905 (4th Cir. 2013). Even if a NACARA applicant
otherwise demonstrates that he satisfies the NACARA criteria, he
may yet be ineligible for cancellation of removal if he falls
4
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.
5
The NACARA, which was enacted in 1997 by Public Law 105–
100, 111 Stat. 2160, 2193–96, and amended that year by Public
Law 105–139, 111 Stat. 2644, is codified in various portions of
the United States Code, including Title 8.
4
within one of six mandatory bars specified in 8 U.S.C.
§ 1229b(c). One of those six bars is the persecutor bar, found
at 8 U.S.C. § 1231(b)(3)(B)(i), which provides that an alien is
ineligible for special rule cancellation “if the Attorney
General decides that” 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.”
(emphasis added). If “the evidence indicates that one or more
of the grounds for mandatory denial of the application for
relief” — such as the persecutor bar — “may apply, the alien
shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).
On December 6, 2001, a DHS officer interviewed Quitanilla
in connection with his application for special rule cancellation
of removal. During the interview, Quitanilla detailed his
Salvadoran military service, explaining that he had been a
sergeant in the Third Brigade, stationed in San Miguel, from
approximately 1981 to 1984. From 1984 to 1987, Quitanilla
served in the “Patrulla de Reconocimiento de Alcance Largo,”
also known as the “PRAL,” a long range reconnaissance patrol
stationed in Santa Ana. J.A. 654. In the PRAL, Quitanilla’s
duties included going “out in the villages and look[ing] for
5
guerillas or civilians who looked like guerillas or guerilla
sympathizers.” Id.
During his military service, Quitanilla “investigated and
arrested about 50 guerillas and civilians who, in his opinion,
were terrorists,” many of whom were on lists of wanted
terrorists provided by his superiors. Id. Quitanilla, acting
on orders from his commanding officers, directed the “arrest
[of] wanted terrorists.” Id. Quitanilla denied that he had
ever “interrogated or mistreated anyone,” as “his mission was
only to capture and deliver” those individuals to his superiors.
Id. Quitanilla did not know what happened to his captives
because they were always moved to other locations for
interrogation. Quitanilla also participated in regular military
operations and was involved in five or six combat encounters.
Although Quitanilla fired military weapons during these
skirmishes, he did not know that he had ever harmed anyone
“because of the combat conditions and the distance.” Id.
Quitanilla said that he was “unaware that the military was
involved in human rights abuses from 1981-1986,” and denied
“that he or his military unit harmed anyone.” Id.
On December 7, 2001, based on this interview and other
information available concerning human rights abuses by the PRAL
and the Salvadoran military, the DHS officer determined that
Quitanilla was a persecutor, and was therefore ineligible for a
6
special rule cancellation of removal. See J.A. 657. In so
concluding, the officer decided that Quitanilla was “not
credible with respect to his inconsistent and vague testimony
denying knowledge of military activities and human rights,”
reasoning that
[Quitanilla] was present in the areas documented as
being areas where human rights abuses took place. It
is highly unlikely that [Quitanilla] was not aware of
and did not participate in persecutorial acts from
1981-1986. Moreover, [Quitanilla] admitted making
about 50 arrests, in which he investigated and/or
turned suspected guerillas over to his superiors.
While [Quitanilla] denied knowing what happened to
them once he gave the prisoners to his superiors,
country conditions reports clearly indicate that the
prisoners were then routinely interrogated, tortured
and sometimes killed.
Id. 6 Thus, the DHS Officer resolved, Quitanilla had “engaged in
persecutorial acts” and was ineligible for special rule
cancellation of removal under the NACARA. Id.
C.
Pursuant to the April 2006 notice from the DHS, Quitanilla
appeared for an initial IJ hearing in Arlington, Virginia, on
6
The “country conditions reports” referred to by the DHS
officer are also known as “Country Reports on Human Rights
Practices,” “Country Reports,” or “Human Rights Reports,” and
are prepared by the Department of State. We have recognized
that “[a] State Department report on country conditions is
highly probative evidence,” and “[r]eliance upon these reports
makes sense because this inquiry is directly within the
expertise of the Department of State.” See Gonahasa v. INS, 181
F.3d 538, 542 (4th Cir. 1999) (internal quotation marks
omitted).
7
November 1, 2006. During the hearing, Quitanilla conceded
removability, but maintained that he was nevertheless entitled
to special rule cancellation of removal under the NACARA,
seeking thereby to amend his NACARA application. On December
27, 2006, Quitanilla again appeared before the IJ and submitted
an amended NACARA application. Quitanilla did not, however,
renew his asylum application.
On March 15, 2007, the IJ conducted a hearing on
Quitanilla’s amended NACARA application. After considering
Quitanilla’s testimony and examining the record, the IJ denied
by oral order Quitanilla’s application for special rule
cancellation of removal. See J.A. 584-92 (the “First IJ
Decision”). In so ruling, the IJ evaluated evidence relating to
Quitanilla’s family, employment, and driving history in this
country, as well as his earlier statements to the DHS.
Quitanilla also provided the IJ with a DHS report containing a
list of approximately 1200 persons who committed human rights
violations during the Salvadoran civil war. Quitanilla was not
on the DHS list, and relied on his absence therefrom as evidence
exonerating him from participating in the persecution of others.
The IJ nevertheless determined that the persecutor bar
applied and precluded special rule cancellation of removal
because Quitanilla had been a “persecutor of others” and a
“party to” torture during his service in the Salvadoran
8
military. See First IJ Decision 7. In explaining that ruling,
the IJ found that Quitanilla’s testimony concerning his role in
the Salvadoran military was not credible, in that it
contradicted his previous statements. Specifically, the First
IJ Decision found that Quitanilla had arrested guerillas and
civilians who opposed the Salvadoran military, explaining as
follows:
It is the opinion of the Court that the testimony of
[Quitanilla] with respect to the fact that he never
arrested anybody in his position as a sergeant with
the PRAL unit is not credible. It is the opinion of
the Court that [Quitanilla’s] statement to the [DHS]
officer that he did arrest between 20 and 50 people is
the correct statement.
Id. at 5-6. According to the IJ, “individuals could not have
been tortured if information were not provided on those
individuals and those individuals were not arrested and turned
over to the people who do the torturing.” Id. at 7.
D.
Quitanilla appealed the First IJ Decision to the BIA. On
October 3, 2008, the BIA remanded the matter to the IJ. See
J.A. 518-19 (the “First BIA Decision”). The First BIA Decision
directed that “any evidence relied on by the [IJ] be included in
the record,” and authorized the IJ to conduct a further hearing
if “additional relevant evidence [was] submitted.” Id. at 2.
Although the IJ had referred to evidence “concerning the actions
of the Third Brigade and PRAL as support for his finding that
9
[Quitanilla] assisted in the persecution of others,” he failed
to reference evidence to that effect. See id. (internal
quotation marks omitted). The BIA specifically declined,
however, to find error with respect to the IJ’s assessment of
Quitanilla’s credibility. Thus, the IJ’s finding that
Quitanilla had “arrested between 20 and 50 people while he was a
member of PRAL and transferred them to his superiors,” was
undisturbed. See id. at 1.
After the First BIA Decision remanded the matter to the IJ
in 2008, he convened a hearing and considered additional
evidence submitted by the DHS. On July 15, 2011, the IJ again
denied Quitanilla’s application for special rule cancellation of
removal. See J.A. 62-65 (the “Second IJ Decision”).
Specifically, the IJ concluded that the DHS had “carried its
initial burden of providing evidence that indicate[d] the
persecutor bar may apply.” Id. at 3. He further concluded that
Quitanilla “had not introduced evidence to counter” that
submitted by the DHS. Id. at 4. In support of the Decision,
the IJ also relied on the country reports for El Salvador during
the relevant period (from 1981 to 1987), as well as other
evidence of the PRAL’s tactics and activities during the
Salvadoran civil war. According to the 1983 country report, El
Salvador “suffer[ed] from politically motivated violence
engendered in part by continuing political polarization,” and
10
extremists on both sides were “guilty of politically motivated
civilian deaths as [were] some members of the Armed Forces.”
J.A. 338. As the IJ explained, “the evidence submitted by the
Government contains a wide range of sources that show the
widespread, prevalent violence on behalf of the Armed Forces of
El Salvador (“FAES”) and the government-sanctioned death
squads.” Second IJ Decision 3. The IJ further related that the
PRAL had “been cited for many human rights abuses and killings,”
and the Third Brigade, of which Quitanilla was a part, had “many
documented instances of human rights abuses.” Id.
Importantly, the Second IJ Decision found that Quitanilla
had “arrested individuals and turned them over to the brigade,”
and “likely understood that the individuals that he investigated
or arrested would be tortured and killed.” Id. Finally, the IJ
emphasized that Quitanilla was a sergeant in the PRAL, and thus
“responsible for leading units against guerillas and turning
over individuals.” Id. at 4. He therefore could not be deemed
a mere soldier. As such, the IJ reasoned, Quitanilla’s
assertion that his participation in the PRAL did not rise to the
level of genuine assistance to persecutors was unpersuasive.
Quitanilla also appealed the Second IJ Decision to the BIA,
which, on September 28, 2012, dismissed the appeal. See J.A. 3-
5 (the “Final BIA Decision”). After reciting the documented
human rights abuses of the PRAL, the BIA again explained that
11
“even if [Quitanilla] committed no atrocities himself, [he] was
aware that individuals he investigated or arrested would likely
be tortured and killed by the FAES.” Id. at 2. Accordingly,
the BIA ruled, the IJ had correctly concluded that Quitanilla
was barred from special rule cancellation of removal under the
NACARA. The BIA declined to disturb its earlier ruling that
there was no clear error in the First IJ Decision’s “findings
that [Quitanilla] did not testify credibly, and that he ordered
the arrest and turnover of between 20 and 50 suspected
terrorists to his superiors.” Id.
Quitanilla has timely petitioned for our review of the
Final BIA Decision. We possess jurisdiction pursuant to 8
U.S.C. § 1252.
II.
Where, as here, the BIA has adopted and supplemented an IJ
decision, we must assess the rulings made by both the BIA and
the IJ. See Barahona v. Holder, 691 F.3d 349, 353 (4th Cir.
2012). As we recognized in Barahona, appellate review of a BIA
decision denying special rule cancellation of removal under the
NACARA is circumscribed by the jurisdiction-stripping provision
of 8 U.S.C. § 1252(a)(2)(B)(i). See id.; see also Gonzalez-
Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011). Pursuant to
that jurisdictional statute, “a determination by the Attorney
12
General as to whether an alien satisfies the requirements of
cancellation of removal is final and shall not be subject to
review by any court.” Barahona, 691 F.3d at 353 (internal
quotation marks and punctuation omitted). Thus, we have no
authority to “review discretionary determinations regarding
requests for special rule cancellation of removal under NACARA,
absent legal or constitutional error.” Id. (internal quotation
marks omitted). Despite these jurisdictional limitations, “a
court of appeals has jurisdiction to review constitutional
claims and questions of law arising from denials of relief under
the NACARA.” Id. We review de novo such questions of law. See
Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006).
III.
By his petition for review, Quitanilla maintains that the
persecutor bar is inapplicable because he did not assist in the
persecution of others and was merely a soldier following orders
and participating in military activities. Quitanilla also
asserts that the DHS failed to make the requisite prima facie
showing that he assisted or otherwise participated in the
persecution of individuals. As a result, he argues, the burden
of proof should not have shifted to him in the IJ proceedings.
13
A.
Our sister circuits have identified two requirements for
invocation of the persecutor bar — that is, “for deciding
whether an alien’s conduct amounts to assisting or participating
in persecution.” See Diaz-Zanatta v. Holder, 558 F.3d 450, 455
(6th Cir. 2009); Xu Sheng Gao v. United States Attorney Gen.,
500 F.3d 93, 103 (2d Cir. 2007). First, as explained by the
Sixth Circuit, “there must have been some nexus between the
alien’s actions and the persecution of others, such that the
alien can fairly be characterized as having actually assisted or
otherwise participated in that persecution.” Diaz-Zanatta, 558
F.3d at 455. We must distinguish between “genuine assistance in
persecution and inconsequential association with persecutors,”
and then determine whether the petitioner’s conduct falls within
the activities proscribed by the persecutor bar. See Singh v.
Gonzales, 417 F.3d 736, 739 (7th Cir. 2005). The second
requirement of the persecutor bar is that the petitioner must
“have acted with scienter,” or with “some level of prior or
contemporaneous knowledge that the persecution was being
conducted.” Diaz-Zanatta, 558 F.3d at 455. Concerning the
second requirement, “the evidence need not show that the alleged
persecutor had specific actual knowledge that his actions
assisted in a particular act of persecution.” Xu Sheng Gao, 500
F.3d at 103. Application of the persecutor bar, however,
14
requires “some level of culpable knowledge that the consequences
of one’s actions would assist in acts of persecution.” Id.
B.
In assessing the applicability of the persecutor bar, we
accept the IJ’s factual determinations. Our review of the Final
BIA Decision is thus limited to the issue of whether, under the
facts found — and credibility determinations made — by the IJ,
Quitanilla assisted or otherwise participated in the persecution
of individuals.
In evaluating the first requirement of the persecutor bar,
it is undisputed that Quitanilla, as a sergeant in the PRAL,
oversaw the investigation and capture of twenty to fifty
civilians and guerillas. He then turned those captives over to
his military superiors, where the prisoners were, according to
the country reports, “routinely interrogated, tortured and
sometimes killed.” J.A. 657. On this record, evidence of the
PRAL’s human rights abuses during the Salvadoran civil war,
including torture, kidnapping, and killing of guerillas and
opponents of the Salvadoran military, is compelling
uncontradicted. Although Quitanilla denies participating in
such activities, his role in the persecution of twenty to fifty
individuals cannot be deemed as “passive.” As our sister
circuits have recognized, those who take custody of or transport
individuals for the purpose of persecution may be subject to the
15
persecutor bar. See Xie v. INS, 434 F.3d 136, 143 (2d Cir.
2006) (transporting “captive women to undergo forced abortions
was assistance in persecution” precluding eligibility for
asylum); Singh, 417 F.3d at 740 (taking “innocent Sikhs into
custody” and “transport[ing] them to the police station, where
[petitioner] knew they would be subjected to unjustified
physical abuse,” constituted assistance in prohibited
persecution).
We turn to the persecutor bar’s second requirement — that
the petitioner “acted with scienter.” Based on the abuses by
the PRAL and, specifically, by the Third Brigade, the IJ found
that Quitanilla “most likely understood that the individuals he
investigated or arrested would be tortured and killed.” Second
IJ Decision 3. We are unable to disturb the IJ’s factual
findings in that regard, and we must accept his adverse
assessment of Quitanilla’s credibility. Moreover, we have
recognized that “information-gathering and infiltration,” which
“led to the torture, imprisonment, and death of . . . political
opponents, as well as individuals merely suspected of
affiliation with these groups,” constitutes sufficient
assistance in the persecution of individuals on the basis of
political opinion to trigger application of the analogous
persecutor bar in the asylum context. See Higuit v. Gonzales,
16
433 F.3d 417, 421 (4th Cir. 2006). 7 There, although petitioner
Higuit did not “personally inflict[] physical harm,” he was
nevertheless barred from asylum relief because his intelligence
activities led directly to the persecution of his political
opponents. Id. at 418. As we explained, “while the commission
of actual physical harm may be sufficient to bring an alien
within the persecution exception, it is not necessary.” Id. at
421. In these circumstances, Quitanilla’s conduct facilitated
the persecution of guerillas and civilians. The BIA thus did
not err in concluding that the persecutor bar renders Quitanilla
ineligible for special rule cancellation of removal under the
NACARA.
C.
Quitanilla counters with other unavailing contentions.
First, he posits that, because a petitioner’s mere participation
in a civil war is insufficient to trigger the persecutor bar,
his military involvement with the PRAL does not make him
ineligible for NACARA relief. Quitanilla supports those
arguments with our recent decision in Pastora v. Holder, 737
F.3d 902 (4th Cir. 2013), asserting that we upheld application
7
The Higuit decision largely concerned the scope of the
nearly identical persecutor bar found in 8 U.S.C.
§ 1158(b)(2)(A)(1), which applies to an alien seeking asylum.
See 433 F.3d at 418.
17
of the persecutor bar to a petitioner who “was found to have
assisted the . . . same guerillas that [Quitanilla] is charged
with persecuting.” Br. of Petitioner at 19. Thus, Quitanilla
maintains, denying him a special rule cancellation of removal
would “essentially leave NACARA relief an unattainable benefit”
to a Salvadoran citizen “because nearly every person in El
Salvador in the eighties assisted either the rebels or the
government in some small way.” Id. He contends that the
persecutor bar should not be read so expansively as to “preclude
entire classes of legitimate asylum seekers from safe harbor,
notably those involved in civil strife.” See Vukmirovic v.
Ashcroft, 362 F.3d 1247, 1252-53 (9th Cir. 2004). Unfortunately
for Quitanilla, this argument is undermined by the facts that
were explicitly found by the IJ. The IJ declined to view
Quitanilla as a mere participant in the Salvadoran civil war.
Rather, he found Quitanilla to be a sergeant in the Salvadoran
military who oversaw the investigation and capture of his
adversaries, and who then transferred his captives to a military
unit with a record of human rights abuses. We are unable to
disturb those findings by the IJ, and they belie Quitanilla’s
argument that he was simply a passive soldier in the Salvadoran
military. 8
8
Quitanilla also contends that his absence from the DHS
(Continued)
18
Quitanilla also challenges the IJ’s application of the
burden-shifting framework to the evidence of record, maintaining
that the IJ erred in deciding that the DHS had satisfied its
prima facie burden of showing Quitanilla’s involvement in the
persecution of others. As the immigration regulations require,
an applicant for relief from removal bears the initial burden of
“establishing that he or she is eligible for any requested
benefit or privilege and that it should be granted in the
exercise of discretion.” 8 C.F.R. § 1240.8(d). If, however,
“the evidence indicates that one or more of the grounds for
mandatory denial of the application for relief” — such as the
persecutor bar — “may apply, the alien shall have the burden of
proving by a preponderance of the evidence that such grounds do
not apply.” Id. In light of the IJ’s findings relating to
human rights abuses committed by the PRAL and Quitanilla’s role
in the Salvadoran military, the IJ did not err in ruling that
the persecutor bar could be applied. As a result, the burden of
proof was properly shifted to Quitanilla to show the
inapplicability of the persecutor bar by a preponderance of the
evidence. Quitanilla’s failure in that regard undermines his
list of known human rights violators establishes that he did not
assist in the persecution of other individuals. Inasmuch as
this challenge presents a factual issue, we lack jurisdiction to
address it.
19
petition for review. 9 In sum, we are satisfied that the BIA did
not err in ruling that Quitanilla, during his service in the
Salvadoran military, assisted in the persecution of individuals
because of their political views.
IV.
Pursuant to the foregoing, we deny Quitanilla’s petition
for review.
PETITION FOR REVIEW DENIED
9
Finally, Quitanilla contends that the IJ, in the context
of both of the IJ decisions, “clearly abused his discretion and
that abuse rose to the level of a due process violation.” Br.
of Petitioner at 32. Quitanilla, however, offers no support for
such a claim, nor are we able to discern any support from the
record.
20