                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           MAR 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WALTER TULIO RODAS REYES,                        No.   13-73177

              Petitioner,                        Agency No. A072-683-204

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                     Argued and Submitted February 15, 2017
                            San Francisco, California

Before: BERZON and CLIFTON, Circuit Judges, and GARBIS,** District Judge.

      Walter Tulio Rodas Reyes petitions for review of the Board of Immigration

Appeals’ (“BIA’s”) decision dismissing his appeal and ordering him removed to

Guatemala. The BIA affirmed the Immigration Judge’s (“IJ’s”) order concluding


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Marvin J. Garbis, United States District Judge for the
District of Maryland, sitting by designation.
that Rodas Reyes assisted in the persecution of others while working as an officer

with the National Police in Guatemala in the 1980s, making him ineligible for

asylum, withholding of removal, withholding of removal under the Convention

Against Torture (“CAT”), cancellation of removal, and special rule cancellation of

removal under the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”). We deny the petition.

         1. The IJ properly considered the record of Rodas Reyes’s asylum interview

as evidence pertaining to his eligibility for relief. Asylum interview records

sometimes lack the indicia of reliability necessary for them to constitute substantial

evidence of a petitioner’s activities. See Singh v. Gonzales, 403 F.3d 1081,

1089–90 (9th Cir. 2005). However, the record of Rodas Reyes’s asylum interview

shows that he testified under oath and with the aid of a translator. Further,

although there is no transcript of the interview, there are some “detailed,

contemporary, chronological notes of the interview.” See id. at 1089. And,

although the asylum officer who conducted the interview was unavailable to

testify, the supervising officer whose name is listed on the Assessment to Refer

adequately authenticated as business records the interview notes and Assessment to

Refer.




                                           2
      2. Substantial evidence supports the IJ’s determination that, while working

as a National Police officer in Guatemala, Rodas Reyes assisted in the persecution

of others on the basis of their political opinions.

      The Immigration and Nationality Act bars from obtaining the forms of relief

at issue on appeal those who have “ordered, incited, assisted, or otherwise

participated in” persecution of any person on account of a protected ground. 8

U.S.C. §§ 1158(b)(2)(A)(i) (asylum), 1229b(c)(5) (cancellation of removal for

nonpermanent residents), 1231(b)(3)(B)(i) (withholding of removal); 8 C.F.R. §§

1208.16(d)(2) (withholding of removal under CAT), 1240.66(a) (special rule

cancellation of removal under NACARA). “[D]etermining whether a petitioner

assisted in persecution requires a particularized evaluation of both personal

involvement and purposeful assistance in order to ascertain culpability.” Miranda

Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006) (internal quotation marks

omitted). In determining whether a petitioner meets this standard, we examine

whether his involvement in the persecution was “active or passive” and whether his

actions “were material to the persecutory end.” Kumar v. Holder, 728 F.3d 993,

998–99 (9th Cir. 2013). “This standard does not require actual trigger-pulling, but

mere acquiescence or membership in an organization[] is insufficient to satisfy the




                                            3
persecutor exception.” Miranda Alvarado, 449 F.3d at 927 (internal quotation

marks, brackets, and citations omitted).

      The interview notes, together with the United States Citizenship and

Immigration Services report on the activities of the Guatemalan National Police in

the 1980s, raise the inference that Rodas Reyes assisted in the persecution of

others. According to the asylum officer’s interview notes, Rodas Reyes “was a

motorcycle cop and also worked with intelligence.” He arrested people and

brought “many” suspects to jail, knowing some would be interrogated by a special

unit that imprisoned or summarily executed suspects. The limited evidence in the

record thus indicates both personal involvement and purposeful assistance. See id.

at 929 (implying that a petitioner who “arrest[ed] the victims or [brought] them to

the place of torture” would meet the standard); compare, e.g., Kumar, 728 F.3d at

999 (concluding a constable who did not arrest anyone was not subject to the

persecutor bar).

      Further, there is substantial evidence to indicate that there was a nexus

between Rodas Reyes’s assistance in persecution and a protected ground, namely,

political opinion. See Miranda Alvarado, 449 F.3d at 930. For instance, Rodas

Reyes agreed that arresting “people who were not supporters of [the]

gov[ernmen]t” was part of his job. His collaboration with intelligence officers


                                           4
suggests his work went beyond arresting ordinary criminals. And, after the asylum

officer clarified that he was “referring to political” arrestees when asking what

happened to those Rodas Reyes arrested, Rodas Reyes stated that they would be

investigated and, if found guilty by the investigators, could be jailed for many

years or executed.

      The evidence in the record therefore “indicated” that Rodas Reyes was

subject to the persecutor bar, thus shifting to him the burden to demonstrate

otherwise by a preponderance of the evidence. Id. at 930; see also 8 C.F.R. §§

1208.13(c)(2)(ii), 1208.16(d)(2), 1240.8(d). The IJ found Rodas Reyes not

credible, and Rodas Reyes now does not challenge this finding, which is certainly

supported by substantial evidence. As nothing in the record aside from Rodas

Reyes’s testimony undermines the account included in the asylum officer’s notes,

Rodas Reyes has not carried his burden to show that he was not a persecutor of

others. He is thus ineligible for the relief he seeks.1

      DENIED.




      1
       Rodas Reyes does not raise on appeal his earlier requests for voluntary
departure and deferral of removal under the CAT.
                                            5
