Jose Abraham Marmol Bernabe v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ABRAHAM MARMOL
BERNABE,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-71997
Agency No. A029-217-336
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 4, 2015**
Pasadena, California
Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
Jose Marmol Bernabe, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ decision affirming the Immigration
Judge’s denial of his application for asylum, withholding of removal, relief under
FILED
AUG 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the Convention Against Torture, and cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act. We have jurisdiction pursuant to 8
U.S.C. § 1252, and we deny the petition for review.
Substantial evidence supports the BIA’s conclusion that the persecutor bar
applies, rendering Bernabe ineligible for relief from removal.1 See Nuru v.
Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005); see also 8 U.S.C. §
1231(b)(3)(B)(i); 8 C.F.R. §§ 1208.13(c)(2)(i)(E), 1208.16(d)(2), 1240.66(a). The
BIA correctly concluded that Bernabe’s conduct established that he was
“individual[ly] accountab[le]” for the actions he took as a member of the National
Police. Miranda Alvarado v. Gonzales, 449 F.3d 915, 926 (9th Cir. 2006) (internal
citation and quotation marks omitted). During his time in the National Police,
Bernabe arrested guerrillas and was responsible for taking their declarations and
preparing a report that was given to his superiors. Bernabe stated in his sworn
statement to Immigration Officer Frank Faecke that he knew arrestees reported as
uncooperative would be “handle[d]” by his boss, who “had people from the special
group prepared to force the prisoner to talk.” Bernabe confirmed in his sworn
statement that the special group, in turn, would “mistreat [prisoners] to get the
1 The persecutor bar does not apply to applications for deferral of removal
under CAT. 8 C.F.R. § 1208.17(a). However, Bernabe expressly waived his
deferral of removal claim in his opening brief.
2

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truth.” He further stated that the special group “had a gym where [it] hung the
suspects and gave them electric shock.” Bernabe’s actions exceeded mere
membership in the National Police, and were instrumental to the persecution of
those whom he arrested. See id. at 928; see also Fedorenko v. United States, 449
U.S. 490, 512 n.34 (1981) (discussing what kind of conduct “fits within the
statutory language about persons who assisted in the persecution of civilians”). The
IJ did not err in weighing the asylum officer's testimony and the statements in
Bernabe's sworn statement over Bernabe's testimony at his removal hearing.
Substantial evidence supports the IJ's conclusion that nothing in the record
indicates that the asylum officer was not credible and that Bernabe's attempt to
distance himself from his earlier statements once he was before the IJ was
"disingenuous," since by that time Bernabe knew that he could be denied asylum
on the basis of the persecutor bar.
The BIA also correctly concluded that Bernabe failed to demonstrate that
any “surrounding circumstances” militated against the conclusion that he was a
persecutor. Miranda Alvarado, 449 F.3d at 926 (citing Vukmirovic v. Ashcroft,
362 F.3d 1247, 1252-53 (9th Cir. 2004)). Bernabe has not argued, much less
demonstrated, that his actions were motivated by self-defense or any other
extenuating circumstances. Rather, Bernabe testified that he voluntarily joined the
3

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National Police, and during his time in that organization, volunteered for a special
service position guarding the presidential home.
Petition DENIED.
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