NOT FOR PUBLICATION                      FILED
                      UNITED STATES COURT OF APPEALS                     SEP 29 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                                FOR THE NINTH CIRCUIT

MARIO ROLANDO RODAS,                             No. 17-70311

                  Petitioner,                    Agency No. A070-780-893

    v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                  Respondent.

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                       Argued and Submitted February 13, 2020
                                Pasadena, California

Before: SCHROEDER, BYBEE, and COLLINS, Circuit Judges.

         Mario Rolando Rodas (“Rodas”), a native and citizen of Guatemala,

petitions for review of the decision of the Board of Immigration Appeals (“BIA”)

affirming the decision of the immigration judge (“IJ”) denying his request for

“special rule cancellation of removal” under the Nicaraguan Adjustment and

Central American Relief Act (“NACARA”), Pub. L. No. 105-100, title II, 111 Stat.

2193 (1997), and ordering him removed. The BIA concluded that Rodas was


*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
subject to the “persecutor bar,” a provision of the Immigration and Nationality Act

(“INA”) that bars certain types of relief for aliens who have “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 U.S.C. § 1231(b)(3)(B)(i); see also Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) § 309(f)(1)(B)(ii),

as added by NACARA § 203(b), 111 Stat. at 2198, 8 U.S.C. § 1101 note (applying

the persecutor bar to NACARA’s special rule cancellation of removal).1 We have

jurisdiction under § 242 of the INA, 8 U.S.C. § 1252. We review the BIA’s legal

conclusions de novo, and we review the agency’s factual findings for substantial

evidence. Arrey v. Barr, 

, 1157 (9th Cir. 2019).

      The BIA upheld the IJ’s application of the persecutor bar based on actions

taken by Rodas while he was a member of Guatemala’s Treasury Guard during the

country’s civil war in the 1980s. Specifically, the BIA stated that Rodas had

policed anti-government political protests, where he “arrest[ed] some of the



1
  NACARA’s special rule allows specified aliens to obtain cancellation of removal
“under section 240A” of the INA under criteria that differ in certain respects from
those that would normally apply under that section. See IIRIRA § 309(f)(1).
However, NACARA explicitly incorporates the very same persecutor bar that
ordinarily applies to any application for cancellation of removal under INA
§ 240A. See INA § 240A(c)(5), 8 U.S.C. § 1229b(c)(5) (an alien “who is
described in section 1231(b)(3)(B)(i) of this title” is ineligible for cancellation of
removal under § 240A).

                                          2
protesters and turn[ed] them over to the authorities.” The BIA concluded that the

record supported the view that, while Rodas did “not know what happened to any

of the individuals he arrested at the protests, . . . he knew that some of the

individuals arrested were beaten and killed after being turned over to the

authorities.” On that basis, the BIA held that, under the applicable regulations, the

IJ correctly shifted the burden to Rodas to show that the persecutor bar does not

apply. We conclude that there is no substantial evidence to support the BIA’s

conclusion that some of the protestors that Rodas arrested were beaten or killed

after being turned over to authorities. We therefore grant Rodas’s petition for

review.

      1. Under the applicable regulations governing Rodas’s application for

special rule cancellation, if the record evidence “indicates that one or more of the

grounds for mandatory denial of the application for relief”—such as the persecutor

bar—“may apply, the alien shall have the burden of proving by a preponderance of

the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d) (emphasis

added). In order to shift the burden to the applicant, the record must contain

“particularized evidence of the bar’s applicability”—that is, evidence sufficient to

“raise the inference that each element of the bar applies”—“before placing on the

applicant the burden to rebut it.” Budiono v. Lynch, 

, 1048–49 (9th

Cir. 2016). Here, because the statute only applies the persecutor bar to an alien



                                           3
who “ordered, incited, assisted, or otherwise participated in the persecution of an

individual because of the individual’s” relevant characteristics, 8 U.S.C.

§ 1231(b)(3)(B)(i) (emphasis added), the statutory text confirms that the persecutor

bar applies only if the alien was involved in an identifiable instance of persecution

of an identifiable individual. On the facts of this case, in which Rodas’s alleged

participation consisted solely of the arrests he made, the Government’s initial

burden therefore was to show that the record contained sufficient “particularized

evidence” that, inter alia, at least one of Rodas’s arrestees was in fact tortured after

Rodas arrested that person. 

. As we shall explain, there

is no such evidence in the record.

      2. In concluding that the Government’s initial burden had been met, the BIA

relied on Rodas’s oral testimony at the hearing, which the IJ had specifically found

to be credible “in all aspects.” Although the BIA correctly observed that the notes

of Rodas’s prior interviews with immigration officials were not relied upon by the

IJ as substantive evidence, the BIA acknowledged that they had been used for

impeachment. Indeed, the record confirms that Rodas’s hearing testimony about

those notes formed the loadbearing evidence on which the IJ rested his finding that

the Government had met its threshold burden concerning the persecutor bar.

Accordingly, we first summarize what the notes stated before turning to Rodas’s

testimony.



                                           4
      a. Rodas’s application was handled by at least two asylum officers. The

first asylum officer to interview Rodas, Leslie Badin, spoke with him on December

14 and 18, 2000. Badin’s handwritten notes from the first interview are in the

record, and they provide, inter alia, the following information. Rodas

acknowledged that he served as a member of the Treasury Guard from 1985 until

early 1989. He stated that, while he was never involved in military operations, he

and other Treasury Guard officers would “help the army” by “notify[ing] them of

the guerrillas.” He explained that his duties as a Treasury Guard member were

“basically what policemen do here” in the United States. After that answer, he and

Badin had the following exchange, as paraphrased in Badin’s handwritten notes:

      Q:     Did you ever apprehend any people?
      A:     I have detained people with drugs in cars—a couple of times.
      Q:     Did your unit ever capture guerrillas?
      A:     Yes my unit did, but I never did. Only the military would
             capture them.
      Q:     What would happen to these people?
      A:     I do not know, they would be in the hands of the army.
      Q:     Do you have [an] idea as to what happened to the prisoners?
      A:     They would get tortured and also, if the guerrillas ever captured
             one of us—they would do the same—torture and kill us.
      Q:     Did you yourself ever harm anyone else?
      A:     No. I have never harmed anyone else.

In preparing a typewritten memorandum about the interview, Badin “concluded

that [Rodas] assisted in persecution of others because he knew what would happen

to the people when he turned them over to the army.” As the notes show, “the

people” that were turned over to the army were guerrillas, not arrested civilians,

                                          5
and the individuals who seized those persons were others in Rodas’s unit and not

Rodas himself. Badin’s memorandum and notes do not mention anything about

protests or arresting protesters.

      The second asylum officer to handle Rodas’s case, Leon DeHaven,

generated a longer memorandum dated December 13, 2001. Among other things,

the memorandum summarizes an interview with Rodas. According to that

summary, Rodas stated that he was required to control demonstrations and break

them up. He stated that “other officers would beat the demonstrators after the

demonstration was over” and that a “couple of times, his Sergeant told him to beat

the demonstrators,” which, although he “did not want to do this, he did because he

felt he had to in order to protect his job.” He also acknowledged that civilians

would sometimes give him “information” about guerrillas, and he would pass that

information along to the army. According to the memorandum, Rodas “was aware

that these people”—the immediate antecedent being the guerrillas—“would be

beaten and killed but he had to turn over the information as it was part of his job.”

DeHaven’s handwritten notes from the same date also appear in the record, and the

contents match the summary in his memorandum. DeHaven’s memorandum

ultimately concludes that the persecutor bar applies to Rodas, but for a different

reason that Badin: DeHaven concluded that Rodas participated in persecution

because he participated “in the beating of individuals who were protesting against



                                          6
the government on account of their political opinions.” The memorandum does not

state that protesters were ever tortured or killed.

      Finally, there is a third memorandum in the record, though it is unsigned and

undated. The IJ described it at one point as a memorandum “from Homeland

Security” regarding a previous interview with Rodas. According to the

memorandum, Rodas “testified that on four occasions he was called to arrest

protesters against the government.” He acknowledged that he used force to make

the arrests but did not acknowledge beating any protesters. He stated that he

turned over the arrested protesters to “local civil authorities” and that he did not

know what happened to the protesters from there.

      In sum, the contents of these memoranda and notes show that Rodas turned

over information about guerrillas to the army, that others in Rodas’s unit captured

some guerrillas and turned them over to the army, and that guerrillas in the army’s

custody would be tortured and killed. Rodas separately acknowledged that he

policed anti-government protests, that he used force against and may have beaten

the protesters during the demonstrations, that he arrested some of them, and that he

turned arrested protesters over to civil authorities. There is no suggestion in any of

these memoranda that Rodas ever turned over protesters to the army or that civil

authorities ever tortured or killed the protesters that Rodas arrested.

      b. During direct examination at his first substantive hearing, Rodas testified



                                           7
that he had arrested people and that he “would take them to court,” where “the

judge would take over or the authorities would take over.” He denied that any of

his arrestees were ever tortured, and he denied ever arresting any guerrillas.

      On cross-examination, government counsel repeatedly asked Rodas

questions about his previous statements without clarifying the distinction between

protesters and guerillas. Government counsel first asked Rodas whether “you told

the Asylum Officer that you beat protesters,” an apparent reference to DeHaven’s

memorandum. Rodas denied that he had said that. Instead, Rodas claimed that he

had done nothing more than push protesters back or hold them off. The IJ then

took over questioning, and asked “how do you know there were guerrillas in the

crowd?” Rodas appeared confused by the question: “The rallies was [sic] against

the government. The guerrillas—those were during the confrontations.”

      When government counsel resumed the examination, he asked Rodas what

would happen to the people he arrested. Rodas responded, “we would turn them in

to the authorities,” but Rodas denied that he knew what would happen to them

from there. Although government counsel had been discussing protesters up until

that point, government counsel attempted to impeach Rodas using Badin’s notes,2

which refer to guerrillas but not protestors. Government counsel read Badin’s



2
 Neither the IJ nor Rodas’s counsel had seen the notes before, and Rodas’s
counsel failed to accept the IJ’s repeated offer of a continuance.

                                          8
question, “what happened to [the] prisoners?” and Rodas’s answer, “They would

get tortured.” Government counsel failed to read the previous questions from

Badin’s notes, which make clear that “the prisoners” referred to were guerrillas

captured by others in Rodas’s unit. Based on government counsel’s misleading

line of questioning, the IJ (who, again, had not seen the notes before) was laboring

under the impression that government counsel was speaking of people Rodas

arrested at demonstrations, and he asked Rodas, “Who would you hear that from

that people who were in the demonstrations or rallies would be tortured?” Rather

than let Rodas answer, Rodas’s attorney tried to clear up the misunderstanding,

stating, “Your Honor, I think that [testimony] was referring to guerrillas.” The IJ

did not acknowledge Rodas’s counsel’s point.

      After some discussion, government counsel resumed questioning, asking

Rodas, “do you remember telling the Asylum Officer that you knew these people

would be beaten and killed, but you had to . . . turn them over anyway, because it

was part of your job?” Rodas answered, “Yes.” The question does not specify

who “these people” are or to whom they were turned over, but the answer is clear

in light of what is stated in the memorandum to which government counsel

referred. The reference is to a statement recounted in DeHaven’s memorandum:

“The applicant was aware that these people would be beaten and killed but he had

to turn over the information as it was part of his job.” As the memorandum makes



                                          9
clear, however, that “information” was “about guerrillas” and was being passed on

“to the Army.” Thereafter, when the IJ attempted to clarify Rodas’s answer—but

still without specifying whether the subject was protesters or guerrillas—Rodas

attempted to explain what he had actually said, stating, “I would just arrest[] them

and turn them over to the justice—to the authorities.”

      Rodas’s second substantive hearing did not clear up the misunderstanding.

Rodas had a new attorney, who revisited the topic of anti-government protesters.

Rodas testified on direct examination that, after he arrested protesters, he would

bring them “to the police station,” where “the law will take care of them.” On

cross-examination, government counsel disputed that answer, stating, “You said at

the prior hearing that you turned them”—protestors—“over to the army.” Rodas

had said nothing of the kind, and he correctly denied giving that testimony.

      At a third substantive hearing, government counsel called Badin to testify.

Badin stated that he had made his initial decision to deny relief because he

concluded that Rodas had turned people over to the army, knowing that they would

be harmed. But as explained earlier, Badin’s notes did not say that Rodas had

turned people over to the army; they said that others in the unit had done so, but

that Rodas had not. As Badin’s notes make clear, Rodas admitted only to passing

along information about guerrillas to the army, not actual detainees. Government

counsel asked Badin to read the portion of his handwritten notes in which he asked



                                         10
Rodas “what happened to the prisoners?” and to which Rodas had answered, “They

would get tortured.” But in directing Badin’s attention to that question,

government counsel skipped the earlier questions in Badin’s handwritten notes that

confirmed that “the prisoners” referred to guerrillas captured by Rodas’s unit and

not to arrestees at civilian protests.

         3. As explained earlier, the basis of the BIA’s decision was that Rodas had

testified that he knew that “some” of “the individuals arrested at the protests” were

subsequently “beaten and killed after being turned over to the authorities”

(emphasis added). As we have explained, Rodas did not say that. The BIA

crossed wires, as government counsel incorrectly did at the hearing, between what

Rodas said about civilian protestors and what he said about guerrillas. Neither the

BIA nor the IJ pointed to any other evidence indicating that any of the civilians

arrested by Rodas were subsequently tortured or persecuted. Moreover, the BIA

acknowledged that Rodas himself “never harmed, tortured, or killed anyone at the

protests,” and that he had only used “the necessary force to arrest some of the

protestors.” On this record, there is no substantial evidence to support the BIA’s

view that the Government carried its initial burden to show the applicability of the

persecutor bar, and that bar therefore provides no grounds for denying cancellation

of removal to Rodas.3


3
    Neither the IJ nor the BIA relied on a theory that Rodas’s turning over of

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      Because the IJ has already determined that Rodas is otherwise statutorily

eligible for special rule cancellation of removal, the sole remaining issue in this

long-running matter is whether Rodas merits a favorable exercise of discretion.

See generally Monroy v. Lynch, 

, 1176 (9th Cir. 2016) (discussing

the discretionary nature of NACARA benefits).

      The petition for review is GRANTED and the case is REMANDED for

further proceedings consistent with this memorandum.




information about guerrillas to the army provided a basis for invoking the
persecutor bar, and we cannot uphold the BIA’s decision on that basis. See

(“Our review is limited to those grounds explicitly
relied upon by the Board.”).

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