Professional Documents
Culture Documents
No. 12-2095
NICOLAS R. PASTORA, a/k/a Nicholas PastoraHernandez,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
Argued:
Decided:
Judge Wynn
Judge Floyd
under
the
Nicaraguan
Adjustment
and
Central
American
and
we
agree
with
the
Board
of
Immigration
Appeals
(BIA) and the Immigration Judge (IJ) that the applicant did
not meet his burden.
review.
I.
Nicolas Rene Pastora-Hernandez (Pastora) was born in El
Salvador in 1941.
his
1995
application,
Pastora
wrote
that
he
A.R. 327
1999,
Pastora
applied
for
special
rule
A.R. 32728.
cancellation
of
if
he
were
to
El
Salvador
he
would
face
the
and
in
Sonsonate. 2
Pastora
also
stated
that
he
had
Pastora
A.R. 354.
that
he
appeared
to
be
barred
from
relief
who
ordered,
incited,
assisted,
or
otherwise
A.R. 265.
A.R. 35859.
He stated
2011,
the
IJ
A.R. 361.
conducted
hearing
during
which
he
Homeland
violations
Security
in
the
(DHS)
that
communities
in
detail[ed]
El
Salvador
human
where
rights
Pastora
The IJ
also admitted a 2006 USCIS memo to the file that explained why
USCIS
found
Pastora
to
be
ineligible
cancellation of removal.
4
for
special
rule
wife.
organization
guerillas.
Pastora
that
stated
protected
that
the
he
local
was
part
community
of
an
against
received
training,
Pastora
gave
testimony
that
conflicted
Pastoras testimony had not been easy and that Pastora had
been inconsistent in both of his USCIS interviews.
A.R. 179.
determined
A.R. 90.
that
Pastoras
admitted
participation
The
in
the
Pastora
patrolled,
was
sufficient
to
trigger
Pastoras
A.R. 3.
the
inapplicability
of
the
persecutor
bar
by
A.R. 5.
II.
A.
With his first argument on appeal, Pastora contends that
the IJ and the BIA incorrectly determined that the persecutor
bar
applied
and
preponderance
thus
of
the
erred
in
evidence
requiring
him
to
that
did
not
he
prove
by
engage
a
in
persecution.
decisions
in
case,
we
review
both
decisions
upon
appeal.
Here,
the issues on appeal arise from the BIAs affirmance of the IJs
decision
and
decision.
its
agreement
with
the
reasoning
in
the
IJs
482 F.3d 276, 279 (4th Cir. 2007), and factual findings under
the
substantial
evidence
standard,
reversing
only
if
the
NACARA, 3
and
former
certain
Soviet
nationals
bloc
from
countries
Guatemala,
may
apply
El
for
suspension
removal. 4
of
deportation
or
special
rule
cancellation
of
An applicant
8 C.F.R.
1240.8(d), 1240.64(a).
A
noncitizen
who
meets
his
burden
under
NACARA
may
of
and
one
of
the
Nationality
mandatory
Act
bars
contained
(INA).
See
in
the
U.S.C.
the
renders
so-called
persecutor
bar,
which
ineligible
for
relief from removal any alien who the Attorney General decides
ordered, incited, assisted, or otherwise participated in the
persecution of an individual because of the individuals race,
religion, nationality, membership in a particular social group,
or political opinion[.]
evidence
indicates
that
8 U.S.C. 1231(b)(3)(B)(i).
[the
persecutor
bar]
may
If the
apply,
the
8 C.F.R.
(4th Cir. 2006), [i]f there is evidence that the alien engaged
in persecution, he must prove by a preponderance of the evidence
that he is not barred from relief on this ground.
Id. at 420.
two nights per week trying to collect people for the army.
A.R. 360.
A.R.
walked
[p]eople
that
were
taken
to
be
soldiers
into
town,
Pastora
patrullas
admitted
to
cantonales
patrolling
were
created
for
in
the
his
unit.
early
The
1900s,
and
between 1967 and 1969 they were organized and expanded into a
well-run
militia
force.
These
local
patrols
were
pervasive
throughout the country, and they served as the eyes and ears of
the military and other paramilitary groups that were notorious
for
massive
and
widespread
human
rights
abuses.
The
record
as
well
as
the
dates
that
they
were
killed,
to
military
and
themselves,
assisting
in
paramilitary
directly
the
persecution
groups,
responsible
9
the
for
carried
local
numerous
out
patrols
human
In
by
the
were,
rights
abuses.
totality
sufficient
to
of
the
indicate
specific
that
the
evidence
in
this
persecutor
bar
case
was
applied,
The IJ
A.R. 91.
A.R. 92.
an
adverse
credibility
determination
to
credibility
finding,
The BIA
On appeal, we
to
ensure
that
Djadjou v. Holder,
deference
is
not
Id.
The
1995
application
also
explained
that
Pastora
was
seeking asylum because there had been too much killing during
the civil war and because the guerillas were looking for him and
his family.
A.R. 327.
family.
inadequately
These
explained
are
only
some
discrepancies
examples
in
of
Pastoras
the
many
statements
explaining
inconsistencies
in
A.R. 91.
how
the
Pastoras
testimony
led
effect
him
to
of
the
make
the
relevance
troubled
of
by
each
the
inconsistency,
variety
of
noting
responses
that
that
he
was
Pastora
most
gave
to
or
changed
his
account
of
past
events
yet
again.
We agree with the BIA that the record contains substantial
evidence
supporting
the
adverse
credibility
finding.
We
III.
For the foregoing reasons, we deny Pastoras petition for
review.
PETITION DENIED
12