On March 11, 2015, the Board of Immigration Appeals (BIA), in an exhaustive opinion rebutting virtually every one of the respondent’s legal and factual arguments, held that through his “command responsibility” as the Director of the Salvadoran National Guard and, subsequently, Minister of Defense of El Salvador, the appellant was responsible for assisting or otherwise participating in acts of torture while in leadership positions.
The BIA initially upheld the admissibility of DHS’s expert witnesses (former U.S. Ambassadors and a university professor), finding that the formal rules of evidence do not apply in immigration proceeding, if the evidence is probative and its use not fundamentally unfair; thus, an expert witness can base her opinion on hearsay and need not have personal knowledge of the facts underlying those opinions. As to whether the respondent “assisted or otherwise participated” in any unlawful acts under INA § 237(a)(4)(D), the Board—citing to both Matter of A-H-, 23 I. & N. Dec. 774 (BIA 2005) and Matter of D-R-, 25 I. & N. Dec. 445 (BIA 2011) and discoursing extensively on the legislative history of the term “command responsibility” – held that his actions or failures to act as a military commander fall within the statutory definition of that phrase; the BIA found further the term is to be given broad application in that assisting or otherwise participating does not require direct personal involvement or personally harming the alleged victim, e.g., it is sufficient if he had knowledge and failed to take action. Nor did the BIA accept respondent’s argument that he was not responsible for autonomous “rogue units” amongst his troops; he had control over his subordinates and therefore is ultimately responsible for the acts of the Guard’s intelligence unit and could have even used it to investigate misconduct.
Similarly, as Minister of Defense, he controlled all Armed Forces members. Yet during his tenure, no officer was ever punished and no specified individual ever prosecuted. The Board held the respondent was proximate enough to the human rights abuses to be held accountable. The BIA also found that the evidence supported the conclusion respondent “assisted or otherwise participated” in the torture of both of the Government’s victim-witnesses and was likewise involved in the “extrajudicial killings” of churchwomen and labor organizers, as that phrase is defined at INA § 212(a)(3)(e)(iii)(II)—which specifically refers to the term’s definition in the Torture Victim Protection Act of 1991 (TVPA).
Finally, the BIA dismissed respondent’s claim that the Immigration Judge (IJ) had no jurisdiction to determine his removability under the “political question abstention doctrine”, finding no Judicial Branch encroachment in his removal proceedings, as the IJ was not asked to decide the wisdom or reasonableness of the Executive Branch’s foreign policy decisions. Nor did the Board find equitable estoppel principals apply, holding respondent’s prior immigrant admission confers no immunity from removal in that such admission could not reasonably mislead him into believing his conduct was consistent with official U.S. government policy. Matter of Vides Casanova, 26 I. & N. Dec 494 (BIA 2015).
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