On May 5, 2017, the Board of Immigration Appeals (BIA or Board) sustained a Department of Homeland Security (DHS) appeal of an Immigration Judge’s (IJ’s) granting of special rule cancellation of removal under Section 3 of the Nicaraguan Adjustment and Central American Relief Act (NACARA) after finding respondent was not subject to the “persecutor bar” of INA §241(b)(3)B)(i). Special rule cancellation under NACARA requires the applicant to prove that he or she is not barred from relief because of having ordered, incited, assisted or otherwise participated in the persecution of another because of that person’s “race, religion, nationality, membership in a particular social group, or political opinion”. The BIA thus noted towards the beginning of its opinion that the only issue here is whether the persecutor bar applies to respondent.
The applicant had served in the Salvadorian National Guard and detained someone who he “delivered to his supervisors for questioning”, then stood guard during the ensuing interrogation when the detainee was “severely mistreated”. The IJ held that while respondent had assisted or otherwise participated in his superiors’ actions, his own acts were a consequence of his military service undertaken to support himself and, as such, he had not imputed a political opinion to the detainee. Because the respondent did not intend to overcome another’s political opinion or other protected characteristic, the IJ concluded he was not subject to the persecutor bar.
Disagreeing, the Board noted that the applicant had “assisted” his superiors and their actions were taken on account of the detainee’s political opinion. Therefore, the BIA found that the “critical inquiry” was whether respondent needed to have a persecutory motive when he assisted in the victim’s persecution in order to be subject to the §241(b)(3)B)(i) prohibition. Quoting a relevant Fifth Circuit Court of Appeals opinion, after noting its “duty to apply the plain language of the Act”, the Board concluded that one’s personal motivation is not relevant to the application of the bar. Thus, held the BIA, when determining whether one has assisted or participated in persecution per §241(b)3(B)(i), the proper focus” is not on the actor’s motives, but “on the intent of the perpetrator of the underlying persecution”. Here, the respondent’s assistance involved the bar, without regard to his motivation, because his superiors’ conduct was based on the victim’s political opinion and he was ordered removed. Matter of Alvarada, 27 I&N Dec. 27 (BIA 2017).
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