Pastora v. Holder, No. 12-2095

Decided: December 11, 2013

The Fourth Circuit held that the record contained sufficient evidence to trigger Nicolas Rene Pastora-Hernandez’s (“Pastora”) burden to prove that he did not engage in persecution in his home country, and agreed with the Board of Immigration Appeals (“BIA”) and the Immigration Judge (“IJ”) that Pastora failed to meet this burden.

Pastora, a native of El Salvador, entered the United States illegally in 1986. After being granted voluntary departure in 1988, he illegally reentered the United States in 1989. In 1991, Pastora applied for asylum. The Immigration and Naturalization Service (“INC”) granted him Temporary Protected Status, which expired in 1994. In 1995, Pastora again applied for asylum. In the 1995 application, Pastora indicated that he served in the civil patrol unit in his hometown as commandant. He also indicated that, as a result of his position, he was targeted by the guerrilla organization and therefore was forced to leave his country to flee persecution. In 1999, Pastora applied for special rule cancellation of removal under Section 203 NACARA. On that application, he stated that he would face the possibility of being punished for not supporting the civil war if removed to El Salvador. In 2006, an officer with the United State Citizenship and Immigration Services interviewed Pastora regarding his NACARA application. During that interview he indicated that he had volunteered in the civil patrol for three hours per week for twelve years. He also stated that he had carried a knife in connection with his volunteer duties and that the military would give them firearms for a short period of time while on duty. Following the interview, the officer informed Pastora that he appeared to be barred from relief under section 240A(c)(5) of the Immigration and Nationality Act because of his possible participation in persecution. In 2009, during an interview with a second asylum officer, Pastora reaffirmed his participation in the civil patrol; however, he described his rank as “cabo” rather than commandant. He further testified that he was given weapons training, but he denied ever engaging in combat or seeing anyone arrested, harmed, or taken prisoner.

In 2011, the IJ conducted a hearing during which he received documents submitted by the Department of Homeland Security detailing human rights violations in the communities in El Salvador where Pastora lived and patrolled. In addition, the IJ also admitted a memo explaining why Pastora was found to be ineligible for special rule cancellation of removal. At the hearing, Pastora testified that he was part of an organization that protected the local community against guerilla. However, when asked to explain his duties, his rank, his length of service, and whether he carried a weapon or received training, Pastora’s testimony conflicted with what he had previously told the asylum officers in his sworn statements. The IJ deemed Pastora barred from relief because he was unable to meet his burden of proof to show that the persecutor bar to relief under NACARA did not apply. Pastora subsequently appealed to the BIA. On appeal, the BIA determined that Pastora’s admitted participation in the civil patrol, coupled with the evidence of human rights violations that occurred during the time and in the place that Pastora patrolled, was sufficient to trigger Pastora’s burden to show that the persecutor bar should not apply. Finding that Pastora failed to show the inapplicability of the persecutor bar, the BIA dismissed the appeal. This appeal followed.

On appeal, the Fourth Circuit addressed Pastora’s contention that the IJ and the BIA incorrectly determined that the persecutor bar applied and thus erred in requiring him to prove by a preponderance of the evidence that he did not engage in persecution. Rejecting this contention, the court noted that the record contained Pastora’s sworn statements that he served as a leader in a local civil patrol for many years during the height of El Salvador’s civil war, and that numerous human rights abuses were committed by armed groups, such as Pastora’s, in the area and during the years that Pastora admitted to patrolling for his unit. Furthermore, the court noted that, in addition to assisting in persecution carried out by the military, the local patrols were, themselves, directly responsible for numerous human rights abuses.

Full Opinion

-W. Ryan Nichols

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