May I please the court? My name is Sam Haasen and I represent the petitioner, Tobias from Mario Quintanilla. This is a case involving special rule cancellation of removal. And there are three main points I would like to get to. First, I'll give you a general facts as far as how Mr. Quintanillo came to the States and in his brief history. He's 48 years old. He has three children that are United States citizens. The oldest is 20 years old. And the youngest is 12. He was in the Salvadorian Army from 1981 to 1987. This is from the ages of 15 to 20. And he began his service in the United States. infantry third-grade from 1981 to 1984 and then was transferred to the Pearl, which is a special reconnaissance unit where he served until 1987. This was during the Civil War in El Salvador. And this was a unit that was trained by the United States. Main issues on appeal here are. Whether there was sufficient evidence to indicate the possibility of persecution, sufficient to invoke the military burden to the petitioner. More specifically, whether or not simply being a member of a military unit during wartime without more is enough to invoke this bar
. The second issue is whether the harm that is incidental to a military objective in an armed conflict, namely a civil war amounts to persecution. And the third is generally courts have found that civil strife is not sufficient to form a protected group. That means that civil war, there's not a protected group persecution purposes. Therefore, in this case, the alleged victims who were not actually sure who the victims are, are not a protected class. And they are simply victims of the silo violence and not persecution as a scene in matter of a H. As far as the prowl and what it exactly is, essentially what we have here is this unit that there's some indication they create human rights abuses. As a member of the prowl, the petitioner was simply an intelligence gatherer. The IJ and the BIA emphasized that he was involved in the arrest of 20 to 50 suspected guerrillas. The civil war is essentially between the prowl and the guerrillas, which is the FML of H. This was a civil war where the guerrillas controlled one third of the land area in the country, which is over 5,000 square kilometers. Military patrols, now this is the pro-units, patroled 50% of the country, but maintain no permanent position for fear of retribution from the long range reconnaissance units. Now the reason this is important is because in 1983 Congress established a national bipartisan commission on Central America known as the Kissinger Commission. In January 1984, that commission issued a report which defined El Salvador important to US interests and deemed strategically unacceptable, a victory by the guerrillas or the FMLN. It recommended heavy US spending to finance a rapid build-up of the government's armed forces leaving combat responsibilities to the Salvadorians. The US military, the US sent 100 military advisors to help and train the Salvadorian crew. And from 1980 to 1987, those troops went from 17,000 to 56,000 troops, of which the petitioner is one of them. El Salvador received 72 helicopters and 63 airplanes to help support the US's mission
. Now, the government aired here, or the IJ aired, in finding that there was an indication of persecution by the petitioner while he was a member of the pro. What that means is that he either ordered, insited, assisted or otherwise participated in the persecution of any person on a counter-virus religion, nationality, membership in a particular or political opinion. As I stated in the briefs, there is no proof that the petitioner did any of this. Apparently there is an impermissible shift to me, because there is such a lack of evidence that shifts the burden to the petitioner to show that he did not persecute anybody. But with such little evidence that there might even be a possibility of persecution, how is he to prove that he did not do something? He does not know where these 20 or 50 people that he took in a combat situation. He said that he knew that he was not sufficient. Or willfully blind to the fact. I believe the I.J. is the second opinion of the first opinion. I'm delighted to have you guide me through. On the second opinion. What page are we looking at? The appendix. The appendix. The appendix. The appendix. It is page two of the I
.J. Is there any pages of the page numbers of the cutoff on this one? It says here that he instigated or arrested. The individuals he investigated or arrested would likely be killed. It is not enough. Those people have to actually look to the other circuits. I will get to this circuit. If you look to the 9th circuit. I don't have it. Oh. I mean it may. I know. Great. I think it might be in the V.A. All right. I don't mean to go ahead. I don't want to go ahead
. Well essentially, I mean to answer your question, even willful blindness wouldn't be sufficient. And here's why. Would be insufficient, you say. Willful blindness would be insufficiency. Those, the actions that he took, has to directly go towards the persecution of at least one individual. It can't be a hypothetical that they may have been persecuted. Okay. And this comes from the 6th circuit case of Diaz Zanada of the holder. Of course, in here, in the 4th circuit, the main cases are Barahona and Pastora on this issue. Now, we know in Barahona, the issue was slightly different in that it was giving material support to a gorilla for a terrorist organization. And he was found to have given use of his kitchen and his house by force. And that that was giving material support. How this is separate from that is that first, it was a terrorist organization. Second, he was not a military that was supported by the U.S. government. And it was not General Civil Stripe
. In Pastora, which is the most recent decision, it's basically the same issue why this is separate, is that again, he was not a military member. In Pastora, he was a civil patrol. And the persecution that occurred, occurred in the exact time and place that his civil patrol patrolled. There is no indication on the record that that happened in the petitioner's case. Everything in the petitioner's case is very general in nature. And then in Higuette, Beganzalis, which is slightly similar to this case, there was an intelligence officer, but again not a military person, but an intelligence officer. And was not a part of the military, but in Higuette, he admitted to hurting many people and that his information led to the imprisonment and death of individuals. I think we'll have to go back to why this law is actually put into place. And we go back to Feder Enko, which is a similar Supreme Court case. That was based on... That was based on the Holocaust and where you have a government that is persecuting a people. This is not something that's occurring during a civil war. Now, I think in Feder Enko, he was a guard or..
. And that is a totally different animal than this. This is a civil war. In matter of age, it was clear that a general civil strife and violence that occurs as a matter of an armed conflict does not amount to persecution. And in fact, the IJ stated that in his initial decision in 2008 that if it had just been, he wasn't a member of the Pral and he had just been a general armed conflict, then he would not have been subject as Prosecutor-O-Bar. On page 590 of the record, the IJ states... Actually, that's not where it is. It says that if he's a soldier, it's actually on page 589. If he's a soldier and he's involved in combat operations where there are offensive operations or defensive operations, that's the job of the military to kill or capture the enemy. So that would not make him a persecutor. And that's exactly where we stand here on this issue. Is that he was simply in the military. There's no indication that he persecuted anyone. And there's not enough to even move the burden to where he has to prove that. And if he does, it's an impossibility of.
.. It's impossible to prove a negative that he did not... He was not part of this persecution. Oh, I think my time is about off. Do you have any questions? Thank you. May I please the court? My name is Edward Wiggers. I represent the respondent in this matter. The board properly found petitioner in eligible for Nicarra cancellation because he is an alien described in eight USC, Section 1231-B3B1. He was a sergeant who led an elite unit that detained gorillas and their suspected supporters among the civilian population and then turned them over to interrogators with a documented history of human rights abuses. In an army, which... While he was in the army, when he was serving..
. The army in which he was serving was intentionally terrorizing the civilian population to keep them from supporting the gorillas. Did an army retrain? We taught them how to make the prowls, Your Honor. Yes, the Third Special Forces Group assisted in that regard. But as far as how the prowls actually performed... Go ahead. As far as how the prowls actually performed in the conduct of the war, that was at the direction of the Salvadoran authorities. So they went beyond this... Hail here. This fellow did just what you're saying. Yes, Your Honor. That's what the evidence in the record states. I'm going to turn the other side. And Mr
. Hassan says, his man is just a soldier. He was a mere soldier, right? Yes, Your Honor. He was more than that. But he'd be right. If he is just a mere soldier, he'd be correct here. Yes, Your Honor. Would you say that the immigration authorities have to get deference in that regard? Could you repeat your question, please, Your Honor? You're saying the immigration authorities get our entitled to deference in regard to the proposition that he was not a mere soldier? Yes, Your Honor. Because of the substantial evidence in the record support set conclusion. But in addition to the adverse credibility finding, Petitioner was a sergeant who had 40 soldiers answering to him who would break up in teams of five or six and take lists of names that they received from the intelligence section at their brigade headquarters to go out into the jungle and find specific individuals. So he's really a leader? Yes, Your Honor. He was a leader. He was a leader of an elite unit designed to go out and find people and bring them in to be interrogated by organizations that regularly employ torture, which was widely known. And if he doesn't go out and find these people and bring them in and hand them over, they can't be tortured. So he fits within the high-get analysis of the process when one is involved in the process and it's enough to be tied to persecution. Did anybody ever find that he knew they were going to be tortured or was just something lighter than that? It seems from the Board's decision, Your Honor, it's more along the lines of the likelihood, but looking at the Diaz and how to..
. You can go ahead and get the Board's decision. You're talking about to start at 5.84 or the Board itself. The Board's decision, Your Honor, the most recent one. The Board's finding on this point on page four of the joint appendix. Page four. Yes, Your Honor. Okay. Given the apparent widespread and indiscriminate human rights violations committed by the... Turn it a little page. I am in the second... Start of the second full paragraph on the page. Right. Given the apparent widespread and indiscriminate human rights violations committed by Respondent's Unit and other similarly situated units during the Period of Military Service, we find no clear error in the Immigration Judges' conclusion that even if Respondent committed no atrocities himself, the Respondent was aware that individuals he investigated arrested would likely be tortured and killed by the armed forces of El Salvador. Am I remembering correctly that the IJ specifically found that Quentinil was unit killed and tortured people during the time he was providing them with intelligence? Yes, Your Honor. Yes. When he was a sergeant in the Pral, there were 36 documented instances of human rights violations, including torture and murder by his brigade, the brigade to whom he was handing over these people. And it was the intelligence sections in the brigade that were usually torturing and murdering because they're the ones who are receiving the people and interrogating them. So, and it's an important note regarding the evidence in this case, the El Rescatae Database in particular was prepared by journalists and human rights advocates working under highly repressive situations and conditions to try to gather information. As the documents in the record with the database note, if someone was below the rank of major, then they were unlikely to be prominent enough for the authorities or for the observers on the ground to have documented their conduct because based on the conditions, it was very difficult to identify the units let alone the actual people involved. And I'd like to address the three. I was the language that the board used, that he was aware that the individuals he investigated or arrested would likely be killed or tortured or and killed by FAS. Yes, Your Honor. Is that in the IJ opinion? My recollection is, is it is your honor I'm looking for it now? Quoters, it has been recast, that's what I'm getting at. The wording might be slightly different, Your Honor, but my recollection is the tenor of that line was in there. What did the IJ actually say? What are we talking about here? Yes, Your Honor. I'm looking at the IJ, the most recent IJ decision, which runs from pages 54 to 57 of the joint appendix. I don't want to get you bogged down, go ahead and make your argument. Yes, Your Honor. Basically, what the immigration judge found was that the petitioner should have known or it was basically a willful blindness approach
. Given the apparent widespread and indiscriminate human rights violations committed by Respondent's Unit and other similarly situated units during the Period of Military Service, we find no clear error in the Immigration Judges' conclusion that even if Respondent committed no atrocities himself, the Respondent was aware that individuals he investigated arrested would likely be tortured and killed by the armed forces of El Salvador. Am I remembering correctly that the IJ specifically found that Quentinil was unit killed and tortured people during the time he was providing them with intelligence? Yes, Your Honor. Yes. When he was a sergeant in the Pral, there were 36 documented instances of human rights violations, including torture and murder by his brigade, the brigade to whom he was handing over these people. And it was the intelligence sections in the brigade that were usually torturing and murdering because they're the ones who are receiving the people and interrogating them. So, and it's an important note regarding the evidence in this case, the El Rescatae Database in particular was prepared by journalists and human rights advocates working under highly repressive situations and conditions to try to gather information. As the documents in the record with the database note, if someone was below the rank of major, then they were unlikely to be prominent enough for the authorities or for the observers on the ground to have documented their conduct because based on the conditions, it was very difficult to identify the units let alone the actual people involved. And I'd like to address the three. I was the language that the board used, that he was aware that the individuals he investigated or arrested would likely be killed or tortured or and killed by FAS. Yes, Your Honor. Is that in the IJ opinion? My recollection is, is it is your honor I'm looking for it now? Quoters, it has been recast, that's what I'm getting at. The wording might be slightly different, Your Honor, but my recollection is the tenor of that line was in there. What did the IJ actually say? What are we talking about here? Yes, Your Honor. I'm looking at the IJ, the most recent IJ decision, which runs from pages 54 to 57 of the joint appendix. I don't want to get you bogged down, go ahead and make your argument. Yes, Your Honor. Basically, what the immigration judge found was that the petitioner should have known or it was basically a willful blindness approach. I thought that too, but I couldn't find that language when I was looking at it. What I'm trying to find is what the immigration judge actually said because the language in the BIA is not a quote. Yes, Your Honor. I couldn't find the language and I was going to see what you could point out exactly what the immigration judge said. He's the fact finder that we give a difference to, right? As a firm by the board, yes, Your Honor. I can look again for that in a moment. I would like to address some of the points Mr. Hassan made in his presentation. Whether being in the military without moors enough, there clearly was more here as he was a leader in an elite unit and the specific role of this unit. Whether harm from a civil war is enough, this was not just a civil war. This was a political endeavor on both sides. There is ample evidence in the joint appendix that supports that. That's usually what a civil war is, I thought. In this case, Your Honor, it was two political ideologies that were fighting each other and the government's... That's what we had here 150 years ago
. I thought that too, but I couldn't find that language when I was looking at it. What I'm trying to find is what the immigration judge actually said because the language in the BIA is not a quote. Yes, Your Honor. I couldn't find the language and I was going to see what you could point out exactly what the immigration judge said. He's the fact finder that we give a difference to, right? As a firm by the board, yes, Your Honor. I can look again for that in a moment. I would like to address some of the points Mr. Hassan made in his presentation. Whether being in the military without moors enough, there clearly was more here as he was a leader in an elite unit and the specific role of this unit. Whether harm from a civil war is enough, this was not just a civil war. This was a political endeavor on both sides. There is ample evidence in the joint appendix that supports that. That's usually what a civil war is, I thought. In this case, Your Honor, it was two political ideologies that were fighting each other and the government's... That's what we had here 150 years ago. Yes, Your Honor. But in this case, the government forces in El Salvador were trying to terrorize the entire countryside and to not supporting the guerrillas. It went far beyond what ordinarily occurs where they were massacres in the thousands of villages that were not participating in the fight. They were targeting non-compatents for torture and murder. It was at... and when the language in the context of just the civil war, it is usually in the context of the actual fighting. If you're a soldier and you kill enemy troops, you are not persecuting them if it's in the course of combat. But if you're a soldier and you go out and you kill innocent civilians who are not combatants, that's totally different. And that's what the South of the Dorn Army was doing. Is the language... and maybe we've moved past this while I was looking..
. Yes, Your Honor. But in this case, the government forces in El Salvador were trying to terrorize the entire countryside and to not supporting the guerrillas. It went far beyond what ordinarily occurs where they were massacres in the thousands of villages that were not participating in the fight. They were targeting non-compatents for torture and murder. It was at... and when the language in the context of just the civil war, it is usually in the context of the actual fighting. If you're a soldier and you kill enemy troops, you are not persecuting them if it's in the course of combat. But if you're a soldier and you go out and you kill innocent civilians who are not combatants, that's totally different. And that's what the South of the Dorn Army was doing. Is the language... and maybe we've moved past this while I was looking... That the court found that the respondent most likely understood that the individuals he investigated or arrested would be tortured and killed. And then the government need only present evidence that indicates that respondent need not prove that he actually persecuted or assisted in the persecution of others. Yes, Your Honor, I believe that's the language. And as far as the shifting of the burden, the petitioner is the one who is in the position to know what went on before he was actually there. But what the way the analysis works is when the Department of Homeland Security presents evidence that suggests that the petitioner may have been involved in persecution. At that point it is the petitioner's burden to prove by a preponderance that he did not. And ordinarily credible testimony would be enough. However, in this case, the petitioner attempted to minimize his role in the military, even beyond what he had told the asylum officer in his Nacara interview. And taking the resulting adverse credibility finding from his efforts at minimization, as well as... He made an adverse credibility finding as to both stories he told. No, Your Honor, the immigration judge adopted the statements made to the asylum officer that the petitioner had arrested 20 to 50 people, both guerrillas and civilians. He found incredible on that. He found that to be credible. He found the.
. That the court found that the respondent most likely understood that the individuals he investigated or arrested would be tortured and killed. And then the government need only present evidence that indicates that respondent need not prove that he actually persecuted or assisted in the persecution of others. Yes, Your Honor, I believe that's the language. And as far as the shifting of the burden, the petitioner is the one who is in the position to know what went on before he was actually there. But what the way the analysis works is when the Department of Homeland Security presents evidence that suggests that the petitioner may have been involved in persecution. At that point it is the petitioner's burden to prove by a preponderance that he did not. And ordinarily credible testimony would be enough. However, in this case, the petitioner attempted to minimize his role in the military, even beyond what he had told the asylum officer in his Nacara interview. And taking the resulting adverse credibility finding from his efforts at minimization, as well as... He made an adverse credibility finding as to both stories he told. No, Your Honor, the immigration judge adopted the statements made to the asylum officer that the petitioner had arrested 20 to 50 people, both guerrillas and civilians. He found incredible on that. He found that to be credible. He found the... No, it's not going to be a story to be not credible. Correct, Your Honor. The story that he never arrested anyone that a different unit was the one that was sent out to do the arrest, that he never fired his weapon. Then he fired it only in training. Then he fired it sometimes in combat. Those were not credible. Subject to the court's questions, we would conclude by noting that there is no evidence supporting the claim of bias on the part of the immigration judge. Subject to the immigration judge was applying the law to the facts presented. Unless the court has any further inquiry, we request that the court deny the petition for review. I just have a few things in rebuttal. The petitioner was not some type of a leader of this prolly unit. That seems to be something that's been a common theme. A sergeant is an enlisted officer. It's only two steps below an entry level private. In the other cases, everybody was much higher level individual. The government is attempting to state that because he was a low level, he was a leader, but because he was a low level officer, his name does not appear in the documents as a persecutor
.. No, it's not going to be a story to be not credible. Correct, Your Honor. The story that he never arrested anyone that a different unit was the one that was sent out to do the arrest, that he never fired his weapon. Then he fired it only in training. Then he fired it sometimes in combat. Those were not credible. Subject to the court's questions, we would conclude by noting that there is no evidence supporting the claim of bias on the part of the immigration judge. Subject to the immigration judge was applying the law to the facts presented. Unless the court has any further inquiry, we request that the court deny the petition for review. I just have a few things in rebuttal. The petitioner was not some type of a leader of this prolly unit. That seems to be something that's been a common theme. A sergeant is an enlisted officer. It's only two steps below an entry level private. In the other cases, everybody was much higher level individual. The government is attempting to state that because he was a low level, he was a leader, but because he was a low level officer, his name does not appear in the documents as a persecutor. I don't think you can have it both ways. Either you're a leader and you led these people to persecute others or you're and you would be listed in that or you're not. There's nothing in the wreck. You're positioned that if you are not a leader, but you do torture, you still should be able to get this exemption. No, I tell you, the not the leader doesn't get you all the way home. No, it doesn't. But if you are a leader and you order it, it certainly gets you. It gets that puts that bar in place. Okay, that's that's number one. But in most of these instances, there has been some leadership instance or someone who has directly affected the commission of the crime. There's nothing in this case that shows anything that he was accused of that he went into these groups and picked up these four or five people and brought him in for torture. I don't see that in the record. I haven't seen it in the record. I don't know where it's in the record. And there's no way for me to defend something that's not there. This has been my argument for the last seven years that I can't make an argument. I get just from just blank statements on a piece of paper that this unit did this when there's not really anything to that
. I don't think you can have it both ways. Either you're a leader and you led these people to persecute others or you're and you would be listed in that or you're not. There's nothing in the wreck. You're positioned that if you are not a leader, but you do torture, you still should be able to get this exemption. No, I tell you, the not the leader doesn't get you all the way home. No, it doesn't. But if you are a leader and you order it, it certainly gets you. It gets that puts that bar in place. Okay, that's that's number one. But in most of these instances, there has been some leadership instance or someone who has directly affected the commission of the crime. There's nothing in this case that shows anything that he was accused of that he went into these groups and picked up these four or five people and brought him in for torture. I don't see that in the record. I haven't seen it in the record. I don't know where it's in the record. And there's no way for me to defend something that's not there. This has been my argument for the last seven years that I can't make an argument. I get just from just blank statements on a piece of paper that this unit did this when there's not really anything to that. I'm sorry. What is there no evidence to because in the that he went into that he was a unit that went and gathered individuals, not combats and brought them back for torture. I don't see where that is. I'm not sure where I can I don't see that. There's a unit that may have done some of that. Well, charges of human rights abuse or widespread to F A E S respondents paramilitary group long range reconnaissance patrol also has been cited for many human rights abuses and killing. And then it sites a whole bunch of things to the record, but she said those things don't exist. No, I said they don't exist specifically to my client, but he was in that unit. He wasn't that unit for three years. That unit is a large unit. I always liken it to the the Abu Ghraib in Iraq, which if you guys, I don't know if you remember, it's been a while now, but they had the pictures in the prison camp in Iraq. That was a large unit. There was only four or five individuals who actually did something that was offensive. It doesn't mean the entire unit is responsible for that. There has to be something more invested individuals and turn them over to the brigade. And then it has a site. Is that wrong? Yeah, but that doesn't say that they were not combat
. I'm sorry. What is there no evidence to because in the that he went into that he was a unit that went and gathered individuals, not combats and brought them back for torture. I don't see where that is. I'm not sure where I can I don't see that. There's a unit that may have done some of that. Well, charges of human rights abuse or widespread to F A E S respondents paramilitary group long range reconnaissance patrol also has been cited for many human rights abuses and killing. And then it sites a whole bunch of things to the record, but she said those things don't exist. No, I said they don't exist specifically to my client, but he was in that unit. He wasn't that unit for three years. That unit is a large unit. I always liken it to the the Abu Ghraib in Iraq, which if you guys, I don't know if you remember, it's been a while now, but they had the pictures in the prison camp in Iraq. That was a large unit. There was only four or five individuals who actually did something that was offensive. It doesn't mean the entire unit is responsible for that. There has to be something more invested individuals and turn them over to the brigade. And then it has a site. Is that wrong? Yeah, but that doesn't say that they were not combat. That's correct, but that's that's what he stated. Yes, but that what I have issue with is the fact that they were civilians. They weren't combat individuals. The government is providing extensive evidence of abuses by F A E S and P R A L to those and have come to those that will come into their custody. You don't quarrel with that. No, I mean there was some instances of that much of the abuse that was not committed by P R L P R A L directly was conducted using surveillance previously gathered such as identity and location of individuals. The kind of evidence that P R A L was responsible for collecting. You don't dispute that. They cite to the record respond and describe in the role of P R A L. I do not know. I don't dispute that what I what I dispute is. Essentially what these units did was they were intelligence. They go out. They say here's a unit here that might be you know, they might be attacking us at some point. And they come back and tell their commanders or whoever and then they go back out. And apparently that was done through airstrikes through military. I mean, these are just military operations in order to have a persecution
. That's correct, but that's that's what he stated. Yes, but that what I have issue with is the fact that they were civilians. They weren't combat individuals. The government is providing extensive evidence of abuses by F A E S and P R A L to those and have come to those that will come into their custody. You don't quarrel with that. No, I mean there was some instances of that much of the abuse that was not committed by P R L P R A L directly was conducted using surveillance previously gathered such as identity and location of individuals. The kind of evidence that P R A L was responsible for collecting. You don't dispute that. They cite to the record respond and describe in the role of P R A L. I do not know. I don't dispute that what I what I dispute is. Essentially what these units did was they were intelligence. They go out. They say here's a unit here that might be you know, they might be attacking us at some point. And they come back and tell their commanders or whoever and then they go back out. And apparently that was done through airstrikes through military. I mean, these are just military operations in order to have a persecution. It has to be based on one of the protected grounds. I don't see the protect even torture that he's saying that he persecuted somebody. Persecution and torture does not count into that. I don't know why torture the way I see it. He ordered and cited insisted or otherwise participated in the persecution of a person. Torture is not in that torture is article three of the convention against torture. This is persecution based on race religion, nationality membership in a particular social group or political opinion. Okay, if he's picking up random people, they don't fit into that class for sure. And if he's picking up combat, they fit into a class that's not protected because it's combat. Any further questions? No, I think so. Thank you very much. Thank you, panel. I appreciate it. We will ask the clerk to adjourn court and then we will come down and greet the lawyers. The son of the court and the court has been married at 230. God save the United States and the son of the court.
May I please the court? My name is Sam Haasen and I represent the petitioner, Tobias from Mario Quintanilla. This is a case involving special rule cancellation of removal. And there are three main points I would like to get to. First, I'll give you a general facts as far as how Mr. Quintanillo came to the States and in his brief history. He's 48 years old. He has three children that are United States citizens. The oldest is 20 years old. And the youngest is 12. He was in the Salvadorian Army from 1981 to 1987. This is from the ages of 15 to 20. And he began his service in the United States. infantry third-grade from 1981 to 1984 and then was transferred to the Pearl, which is a special reconnaissance unit where he served until 1987. This was during the Civil War in El Salvador. And this was a unit that was trained by the United States. Main issues on appeal here are. Whether there was sufficient evidence to indicate the possibility of persecution, sufficient to invoke the military burden to the petitioner. More specifically, whether or not simply being a member of a military unit during wartime without more is enough to invoke this bar. The second issue is whether the harm that is incidental to a military objective in an armed conflict, namely a civil war amounts to persecution. And the third is generally courts have found that civil strife is not sufficient to form a protected group. That means that civil war, there's not a protected group persecution purposes. Therefore, in this case, the alleged victims who were not actually sure who the victims are, are not a protected class. And they are simply victims of the silo violence and not persecution as a scene in matter of a H. As far as the prowl and what it exactly is, essentially what we have here is this unit that there's some indication they create human rights abuses. As a member of the prowl, the petitioner was simply an intelligence gatherer. The IJ and the BIA emphasized that he was involved in the arrest of 20 to 50 suspected guerrillas. The civil war is essentially between the prowl and the guerrillas, which is the FML of H. This was a civil war where the guerrillas controlled one third of the land area in the country, which is over 5,000 square kilometers. Military patrols, now this is the pro-units, patroled 50% of the country, but maintain no permanent position for fear of retribution from the long range reconnaissance units. Now the reason this is important is because in 1983 Congress established a national bipartisan commission on Central America known as the Kissinger Commission. In January 1984, that commission issued a report which defined El Salvador important to US interests and deemed strategically unacceptable, a victory by the guerrillas or the FMLN. It recommended heavy US spending to finance a rapid build-up of the government's armed forces leaving combat responsibilities to the Salvadorians. The US military, the US sent 100 military advisors to help and train the Salvadorian crew. And from 1980 to 1987, those troops went from 17,000 to 56,000 troops, of which the petitioner is one of them. El Salvador received 72 helicopters and 63 airplanes to help support the US's mission. Now, the government aired here, or the IJ aired, in finding that there was an indication of persecution by the petitioner while he was a member of the pro. What that means is that he either ordered, insited, assisted or otherwise participated in the persecution of any person on a counter-virus religion, nationality, membership in a particular or political opinion. As I stated in the briefs, there is no proof that the petitioner did any of this. Apparently there is an impermissible shift to me, because there is such a lack of evidence that shifts the burden to the petitioner to show that he did not persecute anybody. But with such little evidence that there might even be a possibility of persecution, how is he to prove that he did not do something? He does not know where these 20 or 50 people that he took in a combat situation. He said that he knew that he was not sufficient. Or willfully blind to the fact. I believe the I.J. is the second opinion of the first opinion. I'm delighted to have you guide me through. On the second opinion. What page are we looking at? The appendix. The appendix. The appendix. The appendix. It is page two of the I.J. Is there any pages of the page numbers of the cutoff on this one? It says here that he instigated or arrested. The individuals he investigated or arrested would likely be killed. It is not enough. Those people have to actually look to the other circuits. I will get to this circuit. If you look to the 9th circuit. I don't have it. Oh. I mean it may. I know. Great. I think it might be in the V.A. All right. I don't mean to go ahead. I don't want to go ahead. Well essentially, I mean to answer your question, even willful blindness wouldn't be sufficient. And here's why. Would be insufficient, you say. Willful blindness would be insufficiency. Those, the actions that he took, has to directly go towards the persecution of at least one individual. It can't be a hypothetical that they may have been persecuted. Okay. And this comes from the 6th circuit case of Diaz Zanada of the holder. Of course, in here, in the 4th circuit, the main cases are Barahona and Pastora on this issue. Now, we know in Barahona, the issue was slightly different in that it was giving material support to a gorilla for a terrorist organization. And he was found to have given use of his kitchen and his house by force. And that that was giving material support. How this is separate from that is that first, it was a terrorist organization. Second, he was not a military that was supported by the U.S. government. And it was not General Civil Stripe. In Pastora, which is the most recent decision, it's basically the same issue why this is separate, is that again, he was not a military member. In Pastora, he was a civil patrol. And the persecution that occurred, occurred in the exact time and place that his civil patrol patrolled. There is no indication on the record that that happened in the petitioner's case. Everything in the petitioner's case is very general in nature. And then in Higuette, Beganzalis, which is slightly similar to this case, there was an intelligence officer, but again not a military person, but an intelligence officer. And was not a part of the military, but in Higuette, he admitted to hurting many people and that his information led to the imprisonment and death of individuals. I think we'll have to go back to why this law is actually put into place. And we go back to Feder Enko, which is a similar Supreme Court case. That was based on... That was based on the Holocaust and where you have a government that is persecuting a people. This is not something that's occurring during a civil war. Now, I think in Feder Enko, he was a guard or... And that is a totally different animal than this. This is a civil war. In matter of age, it was clear that a general civil strife and violence that occurs as a matter of an armed conflict does not amount to persecution. And in fact, the IJ stated that in his initial decision in 2008 that if it had just been, he wasn't a member of the Pral and he had just been a general armed conflict, then he would not have been subject as Prosecutor-O-Bar. On page 590 of the record, the IJ states... Actually, that's not where it is. It says that if he's a soldier, it's actually on page 589. If he's a soldier and he's involved in combat operations where there are offensive operations or defensive operations, that's the job of the military to kill or capture the enemy. So that would not make him a persecutor. And that's exactly where we stand here on this issue. Is that he was simply in the military. There's no indication that he persecuted anyone. And there's not enough to even move the burden to where he has to prove that. And if he does, it's an impossibility of... It's impossible to prove a negative that he did not... He was not part of this persecution. Oh, I think my time is about off. Do you have any questions? Thank you. May I please the court? My name is Edward Wiggers. I represent the respondent in this matter. The board properly found petitioner in eligible for Nicarra cancellation because he is an alien described in eight USC, Section 1231-B3B1. He was a sergeant who led an elite unit that detained gorillas and their suspected supporters among the civilian population and then turned them over to interrogators with a documented history of human rights abuses. In an army, which... While he was in the army, when he was serving... The army in which he was serving was intentionally terrorizing the civilian population to keep them from supporting the gorillas. Did an army retrain? We taught them how to make the prowls, Your Honor. Yes, the Third Special Forces Group assisted in that regard. But as far as how the prowls actually performed... Go ahead. As far as how the prowls actually performed in the conduct of the war, that was at the direction of the Salvadoran authorities. So they went beyond this... Hail here. This fellow did just what you're saying. Yes, Your Honor. That's what the evidence in the record states. I'm going to turn the other side. And Mr. Hassan says, his man is just a soldier. He was a mere soldier, right? Yes, Your Honor. He was more than that. But he'd be right. If he is just a mere soldier, he'd be correct here. Yes, Your Honor. Would you say that the immigration authorities have to get deference in that regard? Could you repeat your question, please, Your Honor? You're saying the immigration authorities get our entitled to deference in regard to the proposition that he was not a mere soldier? Yes, Your Honor. Because of the substantial evidence in the record support set conclusion. But in addition to the adverse credibility finding, Petitioner was a sergeant who had 40 soldiers answering to him who would break up in teams of five or six and take lists of names that they received from the intelligence section at their brigade headquarters to go out into the jungle and find specific individuals. So he's really a leader? Yes, Your Honor. He was a leader. He was a leader of an elite unit designed to go out and find people and bring them in to be interrogated by organizations that regularly employ torture, which was widely known. And if he doesn't go out and find these people and bring them in and hand them over, they can't be tortured. So he fits within the high-get analysis of the process when one is involved in the process and it's enough to be tied to persecution. Did anybody ever find that he knew they were going to be tortured or was just something lighter than that? It seems from the Board's decision, Your Honor, it's more along the lines of the likelihood, but looking at the Diaz and how to... You can go ahead and get the Board's decision. You're talking about to start at 5.84 or the Board itself. The Board's decision, Your Honor, the most recent one. The Board's finding on this point on page four of the joint appendix. Page four. Yes, Your Honor. Okay. Given the apparent widespread and indiscriminate human rights violations committed by the... Turn it a little page. I am in the second... Start of the second full paragraph on the page. Right. Given the apparent widespread and indiscriminate human rights violations committed by Respondent's Unit and other similarly situated units during the Period of Military Service, we find no clear error in the Immigration Judges' conclusion that even if Respondent committed no atrocities himself, the Respondent was aware that individuals he investigated arrested would likely be tortured and killed by the armed forces of El Salvador. Am I remembering correctly that the IJ specifically found that Quentinil was unit killed and tortured people during the time he was providing them with intelligence? Yes, Your Honor. Yes. When he was a sergeant in the Pral, there were 36 documented instances of human rights violations, including torture and murder by his brigade, the brigade to whom he was handing over these people. And it was the intelligence sections in the brigade that were usually torturing and murdering because they're the ones who are receiving the people and interrogating them. So, and it's an important note regarding the evidence in this case, the El Rescatae Database in particular was prepared by journalists and human rights advocates working under highly repressive situations and conditions to try to gather information. As the documents in the record with the database note, if someone was below the rank of major, then they were unlikely to be prominent enough for the authorities or for the observers on the ground to have documented their conduct because based on the conditions, it was very difficult to identify the units let alone the actual people involved. And I'd like to address the three. I was the language that the board used, that he was aware that the individuals he investigated or arrested would likely be killed or tortured or and killed by FAS. Yes, Your Honor. Is that in the IJ opinion? My recollection is, is it is your honor I'm looking for it now? Quoters, it has been recast, that's what I'm getting at. The wording might be slightly different, Your Honor, but my recollection is the tenor of that line was in there. What did the IJ actually say? What are we talking about here? Yes, Your Honor. I'm looking at the IJ, the most recent IJ decision, which runs from pages 54 to 57 of the joint appendix. I don't want to get you bogged down, go ahead and make your argument. Yes, Your Honor. Basically, what the immigration judge found was that the petitioner should have known or it was basically a willful blindness approach. I thought that too, but I couldn't find that language when I was looking at it. What I'm trying to find is what the immigration judge actually said because the language in the BIA is not a quote. Yes, Your Honor. I couldn't find the language and I was going to see what you could point out exactly what the immigration judge said. He's the fact finder that we give a difference to, right? As a firm by the board, yes, Your Honor. I can look again for that in a moment. I would like to address some of the points Mr. Hassan made in his presentation. Whether being in the military without moors enough, there clearly was more here as he was a leader in an elite unit and the specific role of this unit. Whether harm from a civil war is enough, this was not just a civil war. This was a political endeavor on both sides. There is ample evidence in the joint appendix that supports that. That's usually what a civil war is, I thought. In this case, Your Honor, it was two political ideologies that were fighting each other and the government's... That's what we had here 150 years ago. Yes, Your Honor. But in this case, the government forces in El Salvador were trying to terrorize the entire countryside and to not supporting the guerrillas. It went far beyond what ordinarily occurs where they were massacres in the thousands of villages that were not participating in the fight. They were targeting non-compatents for torture and murder. It was at... and when the language in the context of just the civil war, it is usually in the context of the actual fighting. If you're a soldier and you kill enemy troops, you are not persecuting them if it's in the course of combat. But if you're a soldier and you go out and you kill innocent civilians who are not combatants, that's totally different. And that's what the South of the Dorn Army was doing. Is the language... and maybe we've moved past this while I was looking... That the court found that the respondent most likely understood that the individuals he investigated or arrested would be tortured and killed. And then the government need only present evidence that indicates that respondent need not prove that he actually persecuted or assisted in the persecution of others. Yes, Your Honor, I believe that's the language. And as far as the shifting of the burden, the petitioner is the one who is in the position to know what went on before he was actually there. But what the way the analysis works is when the Department of Homeland Security presents evidence that suggests that the petitioner may have been involved in persecution. At that point it is the petitioner's burden to prove by a preponderance that he did not. And ordinarily credible testimony would be enough. However, in this case, the petitioner attempted to minimize his role in the military, even beyond what he had told the asylum officer in his Nacara interview. And taking the resulting adverse credibility finding from his efforts at minimization, as well as... He made an adverse credibility finding as to both stories he told. No, Your Honor, the immigration judge adopted the statements made to the asylum officer that the petitioner had arrested 20 to 50 people, both guerrillas and civilians. He found incredible on that. He found that to be credible. He found the... No, it's not going to be a story to be not credible. Correct, Your Honor. The story that he never arrested anyone that a different unit was the one that was sent out to do the arrest, that he never fired his weapon. Then he fired it only in training. Then he fired it sometimes in combat. Those were not credible. Subject to the court's questions, we would conclude by noting that there is no evidence supporting the claim of bias on the part of the immigration judge. Subject to the immigration judge was applying the law to the facts presented. Unless the court has any further inquiry, we request that the court deny the petition for review. I just have a few things in rebuttal. The petitioner was not some type of a leader of this prolly unit. That seems to be something that's been a common theme. A sergeant is an enlisted officer. It's only two steps below an entry level private. In the other cases, everybody was much higher level individual. The government is attempting to state that because he was a low level, he was a leader, but because he was a low level officer, his name does not appear in the documents as a persecutor. I don't think you can have it both ways. Either you're a leader and you led these people to persecute others or you're and you would be listed in that or you're not. There's nothing in the wreck. You're positioned that if you are not a leader, but you do torture, you still should be able to get this exemption. No, I tell you, the not the leader doesn't get you all the way home. No, it doesn't. But if you are a leader and you order it, it certainly gets you. It gets that puts that bar in place. Okay, that's that's number one. But in most of these instances, there has been some leadership instance or someone who has directly affected the commission of the crime. There's nothing in this case that shows anything that he was accused of that he went into these groups and picked up these four or five people and brought him in for torture. I don't see that in the record. I haven't seen it in the record. I don't know where it's in the record. And there's no way for me to defend something that's not there. This has been my argument for the last seven years that I can't make an argument. I get just from just blank statements on a piece of paper that this unit did this when there's not really anything to that. I'm sorry. What is there no evidence to because in the that he went into that he was a unit that went and gathered individuals, not combats and brought them back for torture. I don't see where that is. I'm not sure where I can I don't see that. There's a unit that may have done some of that. Well, charges of human rights abuse or widespread to F A E S respondents paramilitary group long range reconnaissance patrol also has been cited for many human rights abuses and killing. And then it sites a whole bunch of things to the record, but she said those things don't exist. No, I said they don't exist specifically to my client, but he was in that unit. He wasn't that unit for three years. That unit is a large unit. I always liken it to the the Abu Ghraib in Iraq, which if you guys, I don't know if you remember, it's been a while now, but they had the pictures in the prison camp in Iraq. That was a large unit. There was only four or five individuals who actually did something that was offensive. It doesn't mean the entire unit is responsible for that. There has to be something more invested individuals and turn them over to the brigade. And then it has a site. Is that wrong? Yeah, but that doesn't say that they were not combat. That's correct, but that's that's what he stated. Yes, but that what I have issue with is the fact that they were civilians. They weren't combat individuals. The government is providing extensive evidence of abuses by F A E S and P R A L to those and have come to those that will come into their custody. You don't quarrel with that. No, I mean there was some instances of that much of the abuse that was not committed by P R L P R A L directly was conducted using surveillance previously gathered such as identity and location of individuals. The kind of evidence that P R A L was responsible for collecting. You don't dispute that. They cite to the record respond and describe in the role of P R A L. I do not know. I don't dispute that what I what I dispute is. Essentially what these units did was they were intelligence. They go out. They say here's a unit here that might be you know, they might be attacking us at some point. And they come back and tell their commanders or whoever and then they go back out. And apparently that was done through airstrikes through military. I mean, these are just military operations in order to have a persecution. It has to be based on one of the protected grounds. I don't see the protect even torture that he's saying that he persecuted somebody. Persecution and torture does not count into that. I don't know why torture the way I see it. He ordered and cited insisted or otherwise participated in the persecution of a person. Torture is not in that torture is article three of the convention against torture. This is persecution based on race religion, nationality membership in a particular social group or political opinion. Okay, if he's picking up random people, they don't fit into that class for sure. And if he's picking up combat, they fit into a class that's not protected because it's combat. Any further questions? No, I think so. Thank you very much. Thank you, panel. I appreciate it. We will ask the clerk to adjourn court and then we will come down and greet the lawyers. The son of the court and the court has been married at 230. God save the United States and the son of the court