FILED
NOT FOR PUBLICATION
MAR 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER TULIO RODAS REYES, No. 13-73177
Petitioner, Agency No. A072-683-204
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2017
San Francisco, California
Before: BERZON and CLIFTON, Circuit Judges, and GARBIS,** District Judge.
Walter Tulio Rodas Reyes petitions for review of the Board of Immigration
Appeals’ (“BIA’s”) decision dismissing his appeal and ordering him removed to
Guatemala. The BIA affirmed the Immigration Judge’s (“IJ’s”) order concluding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
that Rodas Reyes assisted in the persecution of others while working as an officer
with the National Police in Guatemala in the 1980s, making him ineligible for
asylum, withholding of removal, withholding of removal under the Convention
Against Torture (“CAT”), cancellation of removal, and special rule cancellation of
removal under the Nicaraguan Adjustment and Central American Relief Act
(“NACARA”). We deny the petition.
1. The IJ properly considered the record of Rodas Reyes’s asylum interview
as evidence pertaining to his eligibility for relief. Asylum interview records
sometimes lack the indicia of reliability necessary for them to constitute substantial
evidence of a petitioner’s activities. See Singh v. Gonzales, 403 F.3d 1081,
1089–90 (9th Cir. 2005). However, the record of Rodas Reyes’s asylum interview
shows that he testified under oath and with the aid of a translator. Further,
although there is no transcript of the interview, there are some “detailed,
contemporary, chronological notes of the interview.” See id. at 1089. And,
although the asylum officer who conducted the interview was unavailable to
testify, the supervising officer whose name is listed on the Assessment to Refer
adequately authenticated as business records the interview notes and Assessment to
Refer.
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2. Substantial evidence supports the IJ’s determination that, while working
as a National Police officer in Guatemala, Rodas Reyes assisted in the persecution
of others on the basis of their political opinions.
The Immigration and Nationality Act bars from obtaining the forms of relief
at issue on appeal those who have “ordered, incited, assisted, or otherwise
participated in” persecution of any person on account of a protected ground. 8
U.S.C. §§ 1158(b)(2)(A)(i) (asylum), 1229b(c)(5) (cancellation of removal for
nonpermanent residents), 1231(b)(3)(B)(i) (withholding of removal); 8 C.F.R. §§
1208.16(d)(2) (withholding of removal under CAT), 1240.66(a) (special rule
cancellation of removal under NACARA). “[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) (internal quotation marks
omitted). In determining whether a petitioner meets this standard, we examine
whether his involvement in the persecution was “active or passive” and whether his
actions “were material to the persecutory end.” Kumar v. Holder, 728 F.3d 993,
998–99 (9th Cir. 2013). “This standard does not require actual trigger-pulling, but
mere acquiescence or membership in an organization[] is insufficient to satisfy the
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persecutor exception.” Miranda Alvarado, 449 F.3d at 927 (internal quotation
marks, brackets, and citations omitted).
The interview notes, together with the United States Citizenship and
Immigration Services report on the activities of the Guatemalan National Police in
the 1980s, raise the inference that Rodas Reyes assisted in the persecution of
others. According to the asylum officer’s interview notes, Rodas Reyes “was a
motorcycle cop and also worked with intelligence.” He arrested people and
brought “many” suspects to jail, knowing some would be interrogated by a special
unit that imprisoned or summarily executed suspects. The limited evidence in the
record thus indicates both personal involvement and purposeful assistance. See id.
at 929 (implying that a petitioner who “arrest[ed] the victims or [brought] them to
the place of torture” would meet the standard); compare, e.g., Kumar, 728 F.3d at
999 (concluding a constable who did not arrest anyone was not subject to the
persecutor bar).
Further, there is substantial evidence to indicate that there was a nexus
between Rodas Reyes’s assistance in persecution and a protected ground, namely,
political opinion. See Miranda Alvarado, 449 F.3d at 930. For instance, Rodas
Reyes agreed that arresting “people who were not supporters of [the]
gov[ernmen]t” was part of his job. His collaboration with intelligence officers
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suggests his work went beyond arresting ordinary criminals. And, after the asylum
officer clarified that he was “referring to political” arrestees when asking what
happened to those Rodas Reyes arrested, Rodas Reyes stated that they would be
investigated and, if found guilty by the investigators, could be jailed for many
years or executed.
The evidence in the record therefore “indicated” that Rodas Reyes was
subject to the persecutor bar, thus shifting to him the burden to demonstrate
otherwise by a preponderance of the evidence. Id. at 930; see also 8 C.F.R. §§
1208.13(c)(2)(ii), 1208.16(d)(2), 1240.8(d). The IJ found Rodas Reyes not
credible, and Rodas Reyes now does not challenge this finding, which is certainly
supported by substantial evidence. As nothing in the record aside from Rodas
Reyes’s testimony undermines the account included in the asylum officer’s notes,
Rodas Reyes has not carried his burden to show that he was not a persecutor of
others. He is thus ineligible for the relief he seeks.1
DENIED.
1
Rodas Reyes does not raise on appeal his earlier requests for voluntary
departure and deferral of removal under the CAT.
5