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NEW BIA CASE: GUARDING A TORTURED PRISONER IS “PERSECUTION,” EVEN IF YOU HAD NO INTENT TO HARM

By Susan E. Hill, May 5, 2017

The Board of Immigration Appeals (BIA) is the first appellate court for all deportation/removal cases nationwide.  Today in a decision titled Matter of J.M. Alvarado, it denied a green card to a man who served in the El Salvador National Guard, because he was a “persecutor” as defined by the Immigration and Nationality Act, Section 241(b)(3)(B)(i).   Alvarado had joined the Salvardoran National Guard because he needed money, and during his service he detained an individual during the Salvadoran Civil War.  The prisoner was severely mistreated and tortured during interrogation while Alvarado stood guard.

Although Alvarado did not specifically commit the persecution and torture, his act of guarding the prisoner assisted the National Guard group who conducted the persecution.    This assistance is all that is required for Alvarado to be a “persecutor.”

Furthermore, Alvarado’s motivation for joining the group was irrelevant.  He had joined only because he needed money, not to persecute others.  But this was not a sufficient defense because he provided assistance.

The “persecutor bar” prevents persecutors from being granted U.S. green cards and other immigration relief in many instances.  This includes Cancellation of Removal, Adjustment of Status, and Asylum.

The BIA decision is consistent with Ninth Circuit decisions on the same subject.  In Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006), the higher appellate Court held that “persecution” will occur in a prison situation when there is “personal involvement and purposeful assistance.”  In that case, an interpreter’s assistance was a necessary part of harmful interrogation, and the interpreter was found to be a “persecutor.”

Hill & Piibe successfully defended a similar case where our client gave medical attention to prisoners.  We proved that the Immigration Judge made wrongful assumptions about our client’s duties, which did not assist in harming prisoners.

Today’s BIA case Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017), Interim Decision #3891.

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