NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN P. SANTOS, AKA Juan Pablo No. 17-73466
Santos,
Agency No. A029-213-038
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 12, 2019
San Francisco, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Juan Pablo Santos, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an
immigration judge’s (IJ) decision denying his application for special rule
cancellation of removal under the Nicaraguan Adjustment and Central American
Relief Act, 8 C.F.R. § 1240.66(a), and cancellation of removal under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
Immigration and Nationality Act, 8 U.S.C. § 1229b. We deny the petition for
review because substantial evidence supports the agency’s determination that
Santos “assisted, or otherwise participated in” the persecution of others and is
therefore ineligible for relief. 8 U.S.C. § 1231(b)(3)(B)(i).
Santos does not dispute, and we therefore assume, that the legal standard
adopted by the BIA in Matter of D-R-, 27 I. & N. Dec. 105 (BIA 2017), applies.
Under that standard, we determine whether an individual “assisted, or otherwise
participated in” the persecution of others by considering: (1) the nexus between the
individual’s acts and the persecution; and (2) his scienter, “meaning his prior or
contemporaneous knowledge” of the persecution. Id. at 119–20.
Santos testified that although he was not present for the interrogation,
killing, or torture of any suspected guerrillas, he arrested individuals and sorted
them based on their political affiliation—“common criminals” were turned over to
civilian authorities, while “suspected guerrillas” were turned over to an
interrogation unit, which reportedly tortured and killed them. Santos further
testified that although he did not actually know what happened to the guerrillas, he
heard gunshots coming from the interrogation unit’s building on five or six
occasions and suspected that members of the unit might be torturing or killing the
guerrillas. When asked during an interview with the Department of Homeland
Security whether he thought that guerrillas who did not cooperate “might be
Page 3 of 3
tortured or killed,” Santos responded: “Yes. That is the way it had to be.”
Under the deferential substantial-evidence standard of review, the BIA’s
determination that the persecutor bar applies was not unreasonable. Santos’ “role
was material or integral” to the persecution, and he had “sufficient knowledge that
the consequences of his actions may assist in acts” of persecution. Id. at 120–21.
Both the nexus and scienter requirements of the persecutor bar were therefore
satisfied.
PETITION FOR REVIEW DENIED.
FILED
MAR 21 2019
Santos v. Barr, No. 17-73466
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WATFORD, Circuit Judge, joined by W. FLETCHER, Circuit Judge, concurring:
Although we are compelled by the law to deny Juan Santos’ petition for
review, we urge the Department of Homeland Security, in the exercise of its
prosecutorial discretion, to consider refraining from executing the order of removal
in this case. Santos arrived in the United States in 1989 as a young man and
immediately filed an application for asylum. He has been in removal proceedings
for nearly 30 years. In the meantime, he has lived and worked productively in this
country. He and his wife of 24 years have raised three U.S.-citizen children, all of
whom at the time of the merits hearing were in school and financially dependent
upon Santos. He engaged in conduct more than three decades ago that
undoubtedly warrants condemnation. But because Santos’ culpability for this
conduct is low, removing him from this country, and thereby breaking up his
family, appears to impose an unnecessarily harsh sanction.