Edgar Archila v. Robert Wilkinson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ARCHILA, No. 19-70698
Petitioner, Agency No. A029-163-278
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2020
San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and SESSIONS,** District
Judge.
Petitioner Edgar Archila seeks review of the Board of Immigration Appeals’
(BIA) order dismissing his appeal from the Immigration Judge’s (IJ) denial of his
applications for asylum, withholding of removal, special cancellation of removal
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
under the Nicaraguan Adjustment and Central American Relief Act (NACARA),
and deferral of removal under the United Nations Convention Against Torture
(CAT). We have jurisdiction under 8 U.S.C. § 1252. We grant in part and deny in
part the petition for review, and remand for further consideration of Archila’s
application for deferral of removal under CAT.
This Court reviews de novo the agency’s determinations on questions of law
and its factual findings for substantial evidence. Singh v. Holder, 656 F.3d 1047,
1051 (9th Cir. 2011). Questions of law include the application of law to
undisputed or established facts. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067
(2020). Review is limited to those grounds explicitly relied upon by the BIA.
Najmabadi v. Holder, 597 F.3d 983, 986–87 (9th Cir. 2010). Where the BIA
issues its own decision but expressly adopts the IJ’s reasoning, as it did here, the
Court reviews both decisions. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir.
2016).
The record supports the BIA’s application of the persecutor bar. Under the
Immigration and Nationality Act, “any person who ordered, incited, assisted, or
otherwise participated in” persecution of any person on account of a protected
ground is ineligible for asylum and withholding of removal. 8 U.S.C. §§
1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). Although past persecutors are
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ineligible for withholding of removal under CAT, see 8 C.F.R. § 1208.16(d)(2),
they remain eligible for deferral of removal, see 8 C.F.R. § 1208.17(a).
“[D]etermining whether a petitioner ‘assisted in persecution’ requires a
particularized evaluation of both personal involvement and purposeful assistance in
order to ascertain culpability.” Miranda Alvarado v. Gonzales, 449 F.3d 915, 927
(9th Cir. 2006).1 Archila worked in the late 1970s and early 1980s as a military
commissioner for the Guatemalan army. His work included reporting the names of
people, including civilians, who fought with or otherwise aided anti-government
guerillas. Archila testified credibly that he never personally inflicted physical
harm on any of the people he identified, but conceded that those individuals would
be arrested by special army units and might not be seen again. Country conditions
evidence confirmed that military commissioners in Archila’s home region played a
fundamental role in systematic human rights violations, including forced
1
Budiono concluded that the governing regulations require the government to
establish “threshold evidence of each element” of the persecutor bar before the
burden shifts to the noncitizen to demonstrate that the bar does not apply in his
case. 837 F.3d at 1048 (emphasis original); see also Kumar v. Holder, 728 F.3d
993, 998–1000 (9th Cir. 2013) (requiring a particularized, threshold showing of
each element). In Matter of Negusie, 28 I. & N. Dec. 120, 154 n.27 (A.G. 2020),
the Attorney General disagreed, concluding that the regulations do not require “the
particularized inquiry or heightened threshold, including evidence of each element,
suggested by Budiono.” At oral argument, the government conceded that Matter of
Negusie, which was decided after the BIA’s dismissal of Archila’s appeal, does not
apply to this case.
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disappearances, torture, and extrajudicial executions by government forces. Given
Archila’s material assistance in furtherance of such violations, the agency properly
concluded that the persecutor bar applies, and we therefore deny Archila’s petition
for review as to his asylum, withholding, and NACARA claims.
Because the persecutor bar prevents the agency from granting asylum as a
matter of discretion or relief under NACARA, we need not consider the agency’s
discretionary denial of such relief.
Substantial evidence does not support the agency’s denial of relief under
CAT. To qualify for deferral of removal under CAT, a petitioner must establish
that “it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); see Khup v. Ashcroft,
376 F.3d 898, 906 (9th Cir. 2004). “Acts constituting torture” under CAT “are
varied, and include beatings and killings.” Bromfield v. Mukasey, 543 F.3d 1071,
1079 (9th Cir. 2008).
Archila credibly testified that in 1981, a group of men shot at him while he
and his daughter were riding on a motorcycle. He believes the men worked for the
government, and that the government was trying to prevent him and others from
revealing certain information to anti-government groups. After escaping to the
United States, Archila returned to Guatemala in 1987 to visit his ailing brother who
had been shot by men believed to be government agents. During that visit, Archila
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himself was abducted by masked men, taken to an unknown location and tortured.
His captors then placed him in car, told him he was being taken home, and fired a
gun shot at his head. Archila was able to put his hand in the way such that the
bullet barely grazed the back of his neck. He escaped by jumping from the vehicle
and was shot again as he rolled out of the car.
Archila testified that his life will be in danger if he is returned to Guatemala,
and the IJ gave his testimony full evidentiary weight. Country conditions
evidence showed that Guatemala “has serious human rights issues, including high
levels of violence, unlawful killings, torture, and arbitrary detentions.” The IJ
found that military commissioners in particular “were harmed or executed by the
government during the 1980s.” The IJ further concluded, however, that there was
no indication of a current threat of torture. That finding, based upon a void of
information, was not supported by substantial evidence.
In assessing whether it is more likely than not that a petitioner will be
tortured, “‘all evidence relevant to the possibility of future torture shall be
considered, including, but not limited to:’ evidence of past torture inflicted upon
the petitioner; evidence of gross, flagrant, or mass violations of human rights
within the country of removal; and any other relevant information regarding
conditions in the country of removal.” Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th
Cir. 2004) (citing 8 C.F.R. § 208.16(c)(3)). Past torture is the principal factor to be
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considered, since “if an individual has been tortured and has escaped to another
country, it is likely that he will be tortured again if returned to the site of his prior
suffering, unless circumstances or conditions have changed significantly, not just
in general, but with respect to the particular individual.” Nuru v. Gonzales, 404
F.3d 1207, 1217–18 (9th Cir. 2005).
Archila and his family believe that circumstances and conditions in
Guatemala have not changed and that he will be killed if returned. One of
Archila’s uncles, a former military commissioner, was killed in Guatemala.
Archila’s brother, also former military, was killed. A colleague in the intelligence
department disappeared. As recently as 2012, Archila’s niece was pulled from her
home and murdered. While the passage of time may be a relevant consideration
with respect to the current level of danger, the record evidence does not support the
agency’s rejection of Archila’s credible testimony and the country conditions
report indicating past threats to former military commissioners because there was
no specific evidence indicating that any threat to Archila had dissipated. We
therefore grant Archila’s petition for review as to his CAT claim and remand for
supplementation of the record on the question of Archila’s likelihood of torture as
a former military commissioner. See INS v. Ventura, 537 U.S. 12, 16 (2002) (per
curiam) (“[T]he proper course, except in rare circumstances, is to remand to the
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agency for additional investigation or explanation.”) (quotations and citations
omitted).
Finally, the IJ did not err in admitting into evidence a 1995 arrest warrant
issued by the Guatemalan police. The IJ gave the document limited weight,
thereby reducing the potential for prejudice.
Archila was removed during the pendency of this petition for review. In
light of our disposition of Archila’s CAT claim, we order the government to
facilitate Archila’s return to the United States, under the same status he held prior
to the removal, pending further proceedings before the BIA. The government
shall provide to the Court within 60 days a status report as to its efforts to locate
and return Archila from Guatemala.
Petition DENIED in part, GRANTED in part, and REMANDED.
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