J.M. ALVARADO

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Matter of J. M. ALVARADO, Respondent
Decided May 5, 2017
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act,
8 U.S.C. § 1231(b)(3)(B)(i) (2012), applies to an alien who assists or otherwise participates
in the persecution of an individual because of that person’s race, religion, nationality,
membership in a particular social group, or political opinion, without regard to the alien’s
personal motivation for assisting or participating in the persecution.
FOR RESPONDENT: Daniel Santiago, Esquire, Malden, Massachusetts
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Jennifer A. Mulcahy,
Assistant Chief Counsel
BEFORE: Board Panel: MALPHRUS, MULLANE, and LIEBOWITZ, Board Members.
MALPHRUS, Board Member:
In a decision dated June 4, 2014, an Immigration Judge granted the
respondent’s request for special rule cancellation of removal under section
203 	of 	the 	Nicaraguan 	Adjustment 	and 	Central 	American 	Relief 	Act
(“NACARA”), Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193, 2196
(1997), amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997), after
concluding 	that 	he 	is 	not 	subject 	to 	the 	“persecutor 	bar” 	in 	section
241(b)(3)(B)(i) 	of 	the 	Immigration 	and 	Nationality 	Act, 	8 	U.S.C.
§ 1231(b)(3)(B)(i) (2012). The Department of Homeland Security (“DHS”)
has appealed from that decision. The appeal will be sustained.
To establish eligibility for special rule cancellation of removal under the
NACARA, the respondent must show that he is not barred from relief
because he “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.”
Section 241(b)(3)(B)(i) of the Act; see also 8 C.F.R. § 1240.66(a) (2016).
The only issue on appeal is whether the persecutor bar applies in this case.
The record reflects that the respondent served in the Salvadoran National
Guard from 1981 to 1984, during the Salvadoran Civil War. He stated that
he joined the National Guard because he needed to earn money to support
himself. 	While serving in the National Guard, the respondent detained an

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individual 	whom he 	delivered 	to 	his 	superiors 	for 	questioning. 	The
respondent’s superiors ordered him to stand guard away from the immediate
area where they interrogated this detainee and to provide a security patrol
during the questioning. 	The respondent knew that his superiors severely
mistreated the detainee by actions that included placing needles under his
fingernails and that such acts were based on the victim’s political opinion.
Because the respondent had detained this individual and stood guard
while he was interrogated and mistreated, the Immigration Judge concluded
that he had “assisted” or “otherwise participated” in his superiors’ actions.
However, the Immigration Judge found that the respondent’s actions were a
consequence of his service in the Salvadoran National Guard, which he had
joined to earn money to support himself, and that he had not imputed a
political opinion to the detainee. 	Since the respondent had not intended to
overcome the political opinion or other protected characteristic of the
detainee, the Immigration Judge determined that the respondent’s actions did
not qualify as assistance or participation in persecution within the meaning
of section 241(b)(3)(B)(i) of the Act. We disagree with this analysis.
The respondent does not contest that he “assisted” his superiors’ actions
and that their acts were committed on account of the victim’s political
opinion. Nor does he assert that he did not have “prior or contemporaneous
knowledge” of his superiors’ persecutory acts, as required by the United
States Court of Appeals for the First Circuit, in whose jurisdiction this case
arises.1 Castañeda-Castillo v. Gonzales, 488 F.3d 17, 20, 24 (1st Cir. 2007)
(en banc). Thus, the critical inquiry is whether to be subject to the persecutor
bar, the respondent was required to have a persecutory motive when he
assisted in the persecution of the detainee.2
1 	To the extent that the respondent claims that his superiors’ actions do not constitute
persecution because they were incidental to a civil war, we disagree. The acts that occurred
during the interrogation here were not limited to “military activities of a type normal in
such conflicts.” 	Matter of Rodriguez-Majano, 19 I&N Dec. 811, 815 (BIA 1988),
abrogated on other grounds by Negusie v. Holder, 555 U.S. 511 (2009). In that case we
held that harm resulting incidentally from acts directed at the overthrow, or defense of, a
government is not persecution. Id. at 815−16; see also Matter of D-R-, 25 I&N Dec. 445,
456 (BIA 2011) (stating that conduct incident to the military objectives inherent in a civil
war is not persecution), remanded on other grounds, Radojkovic v. Holder, 599 F. App’x
646 (9th Cir. 2015). However, persecution can occur in the context of a civil war, and the
mistreatment of the detainee in this case exceeded accepted military activities.
2 	The respondent does not dispute that he bears the burden to disprove that he was
engaged in persecution. See Castañeda-Castillo v. Gonzales, 488 F.3d at 21 & n.3 (noting
that once the DHS introduces evidence of an alien’s association with persecution, the alien
has the burden to disprove that he engaged in persecution); Matter of R-S-H-, 23 I&N Dec.
629, 640 (BIA 2003) (“Where the evidence indicates that one or more of the grounds for
mandatory denial of an application for relief may apply, the alien has the burden of proving
by a preponderance of the evidence that such grounds do not apply.”).

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We have a duty to apply the plain language of the Act and not to create
ambiguity where none exists. 	See K Mart Corp. v. Cartier, Inc., 486 U.S.
281, 291 (1988) (“If the statute is clear and unambiguous ‘that is the end of
the matter, for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.’” (citations omitted)). Section
241(b)(3)(B)(i) of the Act states that the persecutor bar applies if an alien
“ordered, incited, assisted, or otherwise participated in the persecution”
of another. 	In view of this plain language, we conclude that an “alien’s
personal motivation is not relevant” to the application of this provision. Bah
v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003).
In 	Bah, 	the 	Fifth 	Circuit 	applied 	the 	plain 	language 	of 	section
241(b)(3)(B)(i) to reject an alien’s argument that he was not subject to the
persecutor bar because he was forcibly conscripted by the insurgent group
and did not have a persecutory motive for the violent acts he had committed.
Id. The court reasoned that if Congress wanted an alien’s intent to be relevant
to the persecutor bar, it could have drafted section 241(b)(3)(B)(i) so that the
phrase “because of” modified the term “alien” and would thus apply to an
“alien who, because of an individual’s political opinion, ordered, incited,
assisted, or otherwise participated in the persecution.” Id. (emphasis added)
(citing Maikovskis v. INS, 773 F.2d 435, 445 (2d Cir. 1985) (analyzing
identical language in a Nazi collaboration statute and concluding that the
provision did “not require proof that the alien identified himself with the
Nazis’ basis for persecution; if the Nazi persecution occurred ‘because of’
political opinion, the alien who assisted or otherwise participated in it is
subject to deportation”)). 	Since the alien in Bah had “participated in
persecution, and the persecution occurred because of an individual’s political
opinions,” the court held that he was subject to the persecutor bar. Id.
The Immigration Judge’s determination that the respondent’s personal
motives were relevant to the applicability of the persecutor bar contravenes
the plain language of section 241(b)(3)(B)(i) of the Act. 	Moreover, the
Immigration Judge misapplied our decision in Matter of Rodriguez-Majano,
19 I&N Dec. 811, 815 (BIA 1988), abrogated on other grounds by Negusie
v. Holder, 555 U.S. 511 (2009). In that case we held that “[i]n analyzing a
claim of persecution in the context of a civil war, one must examine the
motivation of the group threatening harm,” because “persecution requires
some degree of intent on the part” of such a group. 	Significantly, the
“persecutor” whose intent we examine is the “group threatening harm”—in
other words, those who committed the underlying persecutory acts.
When determining whether an alien has assisted or participated in
persecution under section 241(b)(3)(B)(i) of the Act, the proper focus is not
on the motive of the alien, but rather on the intent of the perpetrator of the
underlying persecution. If the perpetrator is motivated by the victim’s race,

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religion, nationality, membership in a particular social group, or political
opinion, then the alien’s assistance invokes the persecutor bar, without regard
to the personal motivation of the alien who assisted or otherwise participated
in the persecution. 	See Bah, 341 F.3d at 351 (looking to the intentions of
those inflicting persecution in determining whether the persecutor bar
applies). 	Here, there is no dispute that the persecutors’ conduct was based
on the victim’s political opinion at the time of the persecution. The fact that
the respondent joined the military for financial, as opposed to political,
reasons does not preclude the application of the persecutor bar.3
For 	the 	reasons 	discussed 	above, 	the 	persecutor 	bar 	in 	section
241(b)(3)(B)(i) of the Act applies to the respondent because, regardless of
his own motives, he “assisted, or otherwise participated in the persecution of
an individual because of the individual’s . . . political opinion.” 	He has
therefore not met his burden of establishing that he is eligible for special rule
cancellation of removal under the NACARA. The respondent did not request
any other form of relief from removal. Accordingly, the DHS’s appeal will
be sustained and the respondent will be ordered removed from the United
States to El Salvador.
ORDER: 	The appeal of the Department of Homeland Security is
sustained, and the Immigration Judge’s grant of special rule cancellation of
removal is vacated.
FURTHER ORDER: 	The respondent is ordered removed from the
United States to El Salvador.
3 	Our holding is consistent with Congress’ interpretation of the international treaty
obligations of the United States regarding the protection of refugees. The persecutor bar
was enacted as part of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, and one
of Congress’ primary purposes in passing the Refugee Act was to implement the principles
agreed to in the United Nations Convention Relating to the Status of Refugees, adopted
July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954)
(“Convention”), and the United Nations Protocol Relating to the Status of Refugees,
opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force
Oct. 4, 1967; for the United States Nov. 1, 1968). 	Negusie, 555 U.S. at 520. 	The
Convention prohibits the return of individuals to countries where their life or freedom may
be threatened, except when such individuals have “committed a crime against peace, a war
crime, or a crime against humanity.” Id. at 536 (Stevens, J., concurring) (citation omitted).
Congress considered the persecutor bar to be consistent with this exception. Id. (citing
H.R. Rep. No. 96-608, at 18 (1979)).