FILED
NOT FOR PUBLICATION NOV 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR MANUEL ALAS and ANA No. 08-74577
MARIA DIAZ,
Agency Nos. A029-318-674
Petitioners, A073-949-521
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2012
Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT and THOMAS, Circuit Judges.
Substantial evidence supports the conclusion of the Board of Immigration
Appeals (“BIA”) that petitioners are statutorily ineligible for relief under § 203 of
the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.
L. No. 105-100, Title II, 111 Stat. 2160, 2193-2201 (1997), as amended by Pub. L.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
No. 105-139, 111 Stat. 2644, 2644-45 (1997), under NACARA’s “persecutor bar,”
which precludes special rule cancellation for individuals who “ordered, incited,
assisted, or otherwise participated in the persecution of an individual because of
the individual’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 C.F.R. § 1240.66(a); 8 U.S.C. § 1231(b)(3)(B)(i).
Although Alas did not directly participate in physical acts of torture or
murder, substantial evidence supports the BIA’s conclusion that his conduct was
material, not merely tangential, to the persecution. See Miranda Alvarado v.
Gonzales, 449 F.3d 915, 928 (9th Cir. 2006) (applying persecutor bar to alien who
did not participate in physical acts of torture, but materially assisted by translating
during interrogation sessions).
Thus, contrary to petitioners’ assertions, the BIA properly relied on Alas’s
individual actions during his service in the Salvadoran National Guard, not his
“mere membership” in that organization, to determine that he materially assisted in
the persecution of suspected Communist guerrillas. See id. at 926-27; Vukmirovic
v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). Further, substantial evidence
supports the BIA’s finding that the persecution in which Alas assisted was on
account of political opinion.
2
Nor, as petitioners contend, does the existence of armed conflict preclude
application of the persecutor bar. Although persecution does not include harm
inherent in armed conflict, “torturing individuals selected for their affiliation with
an opposition group is not inherent in armed conflict.” Miranda Alvarado, 449
F.3d at 932. The BIA properly considered the evidence in context, and substantial
evidence supports its conclusion that Alas’s individual actions warranted
application of the persecutor bar.
PETITION DENIED.
3