                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-2329


TOBIA ROMERO QUITANILLA,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   May 14, 2014                      Decided:   July 14, 2014


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Petition for review denied by published opinion.      Judge King
wrote the opinion, in which Judge Motz and Judge Duncan joined.


ARGUED: Sam H. Hasan, HASAN LAW GROUP, Falls Church, Virginia,
for Petitioner.   Edward Earl Wiggers, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart
F. Delery, Principal Deputy Attorney General, Mary Jane Candaux,
Assistant Director, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
KING, Circuit Judge:

      Petitioner       Tobia    Romero        Quitanilla,      a     native    of   El

Salvador, sought discretionary relief from removal by way of a

special rule cancellation under the Nicaraguan Adjustment and

Central   American      Relief    Act     of    1997    (the       “NACARA”). 1     An

Immigration Judge (the “IJ”) denied Quitanilla’s request, ruling

that he was ineligible for relief because of the “persecutor

bar,” codified at 8 U.S.C. § 1231(b)(3)(B)(i).                     On September 28,

2012, the Board of Immigration Appeals (the “BIA”) denied relief

and dismissed.        Quitanilla petitions for our review of the BIA’s

dismissal.      Discerning no error, we deny review.



                                         I.

                                         A.

      Quitanilla      entered    the     United    States      from     El    Salvador

without inspection in March 1987.                On June 6, 1988, Quitanilla

applied   for    asylum,   asserting       that    he   feared       persecution    by

guerilla forces should he return to El Salvador.                        Between 1989

and   2006,     the    federal    immigration          authorities       interviewed

Quitanilla on at least four occasions in connection with his

asylum application and his separate request for special rule


      1
       Although references in the record are inconsistent, we
refer to the Petitioner as “Tobia Romero Quitanilla.”



                                          2
cancellation of removal under the NACARA.            During the course of

those interviews, Quitanilla acknowledged that he had served in

the Salvadoran military from February 1982 until early 1987. 2

Quitanilla elaborated that, after he was discharged from the

military,     guerillas   fighting    for    opposition     forces      in    El

Salvador came to his home seeking food and recruits, and asking

for Quitanilla by name.       On January 6, 2006, after his final

asylum   interview,   the   Department      of   Homeland   Security         (the

“DHS”)   notified   Quitanilla   of   its   intent   to   deny    his   asylum

application for failure to show that he had been persecuted or

had a reasonable fear of persecution should he return to El

Salvador. 3

     On April 3, 2006, the DHS sent Quitanilla a final notice of

denial of his asylum application, advising that his case had

been referred to the IJ for further proceedings.                 Accompanying

the DHS letter was a notice to appear, charging Quitanilla with

     2
       Although there is some dispute concerning the dates of
Quitanilla’s military service, that discrepancy does not bear on
our analysis.
     3
       Quitanilla initially filed his asylum application with the
DHS’s predecessor, the Immigration and Naturalization Service
(the “INS”).    The Homeland Security Act of 2002 abolished the
INS and transferred its functions to the DHS.      See Ivanov v.
Gonzales, 487 F.3d 635, 637 n.2 (8th Cir. 2007).      Because the
INS has been abolished, we refer to the immigration agency as
the DHS.    The Attorney General is the proper respondent in
petitions for review of BIA removal decisions.      See 8 U.S.C.
§ 1252.



                                      3
removability      from   the     United        States    pursuant      to     8    U.S.C.

§ 1182(a)(6)(A)(i), because he is “[a]n alien present in the

United States who has not been admitted or paroled.”                        J.A. 713. 4

                                          B.

     The procedural background of this matter warrants further

explanation.        On     August      11,       1999,    Quitanilla         filed          an

application for special rule cancellation of removal under the

NACARA.    Section 203 of the NACARA (as codified in 8 U.S.C.

§ 1229b(b))    authorized       such   a       special    rule    cancellation          for

aliens who satisfy “certain criteria, including not being either

‘inadmissible or deportable.’”             See Barahona v. Holder, 691 F.3d

349, 351 (4th Cir. 2012) (quoting 8 U.S.C. § 1229b(b), (c)(4)). 5

As we have explained, “[a]n applicant seeking cancellation of

removal   under    NACARA      bears   the      burden    of     establishing          by   a

preponderance      of    the    evidence        that     he    meets   all        of    the

applicable requirements for relief.”                     Pastora v. Holder, 737

F.3d 902, 905 (4th Cir. 2013).                    Even if a NACARA applicant

otherwise demonstrates that he satisfies the NACARA criteria, he

may yet be ineligible for cancellation of removal if he falls

     4
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this matter.
     5
       The NACARA, which was enacted in 1997 by Public Law 105–
100, 111 Stat. 2160, 2193–96, and amended that year by Public
Law 105–139, 111 Stat. 2644, is codified in various portions of
the United States Code, including Title 8.



                                           4
within     one    of     six        mandatory         bars    specified             in    8    U.S.C.

§ 1229b(c).       One of those six bars is the persecutor bar, found

at 8 U.S.C. § 1231(b)(3)(B)(i), which provides that an alien is

ineligible       for     special       rule       cancellation            “if       the       Attorney

General     decides       that”       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.”

(emphasis added).           If “the 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).

      On December 6, 2001, a DHS officer interviewed Quitanilla

in connection with his application for special rule cancellation

of   removal.          During       the    interview,         Quitanilla            detailed        his

Salvadoran       military       service,      explaining            that       he    had       been    a

sergeant in the Third Brigade, stationed in San Miguel, from

approximately      1981        to    1984.        From       1984    to    1987,          Quitanilla

served in the “Patrulla de Reconocimiento de Alcance Largo,”

also known as the “PRAL,” a long range reconnaissance patrol

stationed in Santa Ana.                   J.A. 654.          In the PRAL, Quitanilla’s

duties included going “out in the villages and look[ing] for



                                                  5
guerillas or civilians who looked like guerillas or guerilla

sympathizers.”           Id.

       During his military service, Quitanilla “investigated and

arrested about 50 guerillas and civilians who, in his opinion,

were    terrorists,”            many     of     whom    were       on    lists     of        wanted

terrorists provided by his superiors.                            Id.     Quitanilla, acting

on orders from his commanding officers, directed the “arrest

[of] wanted terrorists.”                  Id.         Quitanilla denied that he had

ever “interrogated or mistreated anyone,” as “his mission was

only to capture and deliver” those individuals to his superiors.

Id.     Quitanilla         did    not    know        what   happened       to    his    captives

because     they         were     always        moved       to     other       locations        for

interrogation.           Quitanilla also participated in regular military

operations and was involved in five or six combat encounters.

Although     Quitanilla            fired        military          weapons       during        these

skirmishes,       he     did    not     know    that     he      had    ever    harmed       anyone

“because     of    the     combat        conditions         and    the     distance.”           Id.

Quitanilla        said    that     he    was     “unaware         that   the    military        was

involved     in    human        rights    abuses       from       1981-1986,”      and       denied

“that he or his military unit harmed anyone.”                            Id.

       On   December       7,    2001,        based    on   this       interview       and    other

information available concerning human rights abuses by the PRAL

and the Salvadoran military, the DHS officer determined that

Quitanilla was a persecutor, and was therefore ineligible for a

                                                 6
special rule cancellation of removal.                      See J.A. 657.             In so

concluding,        the    officer     decided       that    Quitanilla         was    “not

credible with respect to his inconsistent and vague testimony

denying       knowledge    of   military        activities    and      human    rights,”

reasoning that

        [Quitanilla] was present in the areas documented as
        being areas where human rights abuses took place. It
        is highly unlikely that [Quitanilla] was not aware of
        and did not participate in persecutorial acts from
        1981-1986.    Moreover, [Quitanilla] admitted making
        about 50 arrests, in which he investigated and/or
        turned suspected guerillas over to his superiors.
        While [Quitanilla] denied knowing what happened to
        them once he gave the prisoners to his superiors,
        country conditions reports clearly indicate that the
        prisoners were then routinely interrogated, tortured
        and sometimes killed.

Id. 6       Thus, the DHS Officer resolved, Quitanilla had “engaged in

persecutorial        acts”      and   was        ineligible      for    special       rule

cancellation of removal under the NACARA.                  Id.

                                            C.

        Pursuant to the April 2006 notice from the DHS, Quitanilla

appeared for an initial IJ hearing in Arlington, Virginia, on

        6
       The “country conditions reports” referred to by the DHS
officer are also known as “Country Reports on Human Rights
Practices,” “Country Reports,” or “Human Rights Reports,” and
are prepared by the Department of State.    We have recognized
that “[a] State Department report on country conditions is
highly probative evidence,” and “[r]eliance upon these reports
makes sense because this inquiry is directly within the
expertise of the Department of State.” See Gonahasa v. INS, 181
F.3d 538, 542 (4th Cir. 1999) (internal quotation marks
omitted).



                                            7
November     1,   2006.        During        the       hearing,      Quitanilla           conceded

removability, but maintained that he was nevertheless entitled

to   special      rule      cancellation          of    removal      under        the      NACARA,

seeking thereby to amend his NACARA application.                                     On December

27, 2006, Quitanilla again appeared before the IJ and submitted

an amended NACARA application.                         Quitanilla did not, however,

renew his asylum application.

      On     March      15,    2007,        the    IJ        conducted      a        hearing       on

Quitanilla’s       amended         NACARA    application.               After        considering

Quitanilla’s testimony and examining the record, the IJ denied

by   oral     order      Quitanilla’s             application         for       special        rule

cancellation       of    removal.           See        J.A.    584-92      (the       “First       IJ

Decision”).       In so ruling, the IJ evaluated evidence relating to

Quitanilla’s      family,      employment,             and    driving      history        in   this

country,     as      well     as     his    earlier           statements        to     the     DHS.

Quitanilla also provided the IJ with a DHS report containing a

list of approximately 1200 persons who committed human rights

violations during the Salvadoran civil war.                           Quitanilla was not

on the DHS list, and relied on his absence therefrom as evidence

exonerating him from participating in the persecution of others.

      The    IJ   nevertheless         determined             that   the    persecutor          bar

applied     and    precluded         special       rule       cancellation           of   removal

because     Quitanilla        had    been    a     “persecutor        of    others”          and    a

“party      to”   torture          during    his        service      in     the       Salvadoran

                                               8
military.    See First IJ Decision 7.               In explaining that ruling,

the IJ found that Quitanilla’s testimony concerning his role in

the    Salvadoran     military     was       not     credible,    in    that   it

contradicted his previous statements.                 Specifically, the First

IJ Decision found that Quitanilla had arrested guerillas and

civilians   who    opposed   the   Salvadoran         military,   explaining    as

follows:

       It is the opinion of the Court that the testimony of
       [Quitanilla] with respect to the fact that he never
       arrested anybody in his position as a sergeant with
       the PRAL unit is not credible.   It is the opinion of
       the Court that [Quitanilla’s] statement to the [DHS]
       officer that he did arrest between 20 and 50 people is
       the correct statement.

Id. at 5-6.        According to the IJ, “individuals could not have

been    tortured    if   information         were    not   provided    on   those

individuals and those individuals were not arrested and turned

over to the people who do the torturing.”               Id. at 7.

                                     D.

       Quitanilla appealed the First IJ Decision to the BIA.                    On

October 3, 2008, the BIA remanded the matter to the IJ.                        See

J.A. 518-19 (the “First BIA Decision”).                The First BIA Decision

directed that “any evidence relied on by the [IJ] be included in

the record,” and authorized the IJ to conduct a further hearing

if “additional relevant evidence [was] submitted.”                     Id. at 2.

Although the IJ had referred to evidence “concerning the actions

of the Third Brigade and PRAL as support for his finding that

                                         9
[Quitanilla] assisted in the persecution of others,” he failed

to    reference       evidence       to       that     effect.         See     id.    (internal

quotation       marks      omitted).             The     BIA      specifically        declined,

however, to find error with respect to the IJ’s assessment of

Quitanilla’s          credibility.               Thus,        the     IJ’s        finding     that

Quitanilla had “arrested between 20 and 50 people while he was a

member    of    PRAL       and    transferred          them    to    his     superiors,”       was

undisturbed.         See id. at 1.

      After the First BIA Decision remanded the matter to the IJ

in    2008,     he     convened          a    hearing       and     considered       additional

evidence submitted by the DHS.                       On July 15, 2011, the IJ again

denied Quitanilla’s application for special rule cancellation of

removal.             See    J.A.         62-65       (the      “Second       IJ     Decision”).

Specifically, the IJ concluded that the DHS had “carried its

initial       burden       of     providing       evidence          that     indicate[d]       the

persecutor bar may apply.”                   Id. at 3.         He further concluded that

Quitanilla          “had    not     introduced          evidence       to     counter”       that

submitted by the DHS.                Id. at 4.           In support of the Decision,

the IJ also relied on the country reports for El Salvador during

the   relevant        period       (from      1981     to    1987),    as     well    as     other

evidence       of    the        PRAL’s       tactics    and       activities        during    the

Salvadoran civil war.               According to the 1983 country report, El

Salvador       “suffer[ed]           from        politically          motivated        violence

engendered in part by continuing political polarization,” and

                                                 10
extremists on both sides were “guilty of politically motivated

civilian deaths as [were] some members of the Armed Forces.”

J.A. 338.     As the IJ explained, “the evidence submitted by the

Government    contains    a    wide    range     of     sources    that   show   the

widespread, prevalent violence on behalf of the Armed Forces of

El    Salvador    (“FAES”)       and     the     government-sanctioned       death

squads.”     Second IJ Decision 3.            The IJ further related that the

PRAL had “been cited for many human rights abuses and killings,”

and the Third Brigade, of which Quitanilla was a part, had “many

documented instances of human rights abuses.”                Id.

      Importantly, the Second IJ Decision found that Quitanilla

had “arrested individuals and turned them over to the brigade,”

and “likely understood that the individuals that he investigated

or arrested would be tortured and killed.”                 Id.    Finally, the IJ

emphasized that Quitanilla was a sergeant in the PRAL, and thus

“responsible     for   leading    units       against    guerillas    and   turning

over individuals.”       Id. at 4.        He therefore could not be deemed

a    mere   soldier.      As     such,    the     IJ    reasoned,    Quitanilla’s

assertion that his participation in the PRAL did not rise to the

level of genuine assistance to persecutors was unpersuasive.

      Quitanilla also appealed the Second IJ Decision to the BIA,

which, on September 28, 2012, dismissed the appeal.                   See J.A. 3-

5 (the “Final BIA Decision”).                  After reciting the documented

human rights abuses of the PRAL, the BIA again explained that

                                         11
“even if [Quitanilla] committed no atrocities himself, [he] was

aware that individuals he investigated or arrested would likely

be tortured and killed by the FAES.”                    Id. at 2.     Accordingly,

the BIA ruled, the IJ had correctly concluded that Quitanilla

was barred from special rule cancellation of removal under the

NACARA.        The BIA declined to disturb its earlier ruling that

there was no clear error in the First IJ Decision’s “findings

that [Quitanilla] did not testify credibly, and that he ordered

the     arrest    and    turnover      of     between    20   and    50   suspected

terrorists to his superiors.”               Id.

        Quitanilla      has   timely    petitioned      for   our   review   of   the

Final    BIA     Decision.      We     possess    jurisdiction      pursuant   to   8

U.S.C. § 1252.



                                            II.

        Where, as here, the BIA has adopted and supplemented an IJ

decision, we must assess the rulings made by both the BIA and

the IJ.        See Barahona v. Holder, 691 F.3d 349, 353 (4th Cir.

2012).     As we recognized in Barahona, appellate review of a BIA

decision denying special rule cancellation of removal under the

NACARA is circumscribed by the jurisdiction-stripping provision

of 8 U.S.C. § 1252(a)(2)(B)(i).                   See id.; see also Gonzalez-

Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011).                      Pursuant to

that jurisdictional statute, “a determination by the Attorney

                                            12
General as to whether an alien satisfies the requirements of

cancellation of removal is final and shall not be subject to

review    by    any    court.”       Barahona,       691    F.3d   at   353     (internal

quotation      marks       and   punctuation      omitted).        Thus,   we    have    no

authority       to    “review      discretionary       determinations           regarding

requests for special rule cancellation of removal under NACARA,

absent legal or constitutional error.”                      Id. (internal quotation

marks omitted).             Despite these jurisdictional limitations, “a

court    of     appeals      has    jurisdiction       to    review     constitutional

claims and questions of law arising from denials of relief under

the NACARA.”         Id.     We review de novo such questions of law.                   See

Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006).



                                         III.

      By his petition for review, Quitanilla maintains that the

persecutor bar is inapplicable because he did not assist in the

persecution of others and was merely a soldier following orders

and   participating          in    military       activities.        Quitanilla       also

asserts that the DHS failed to make the requisite prima facie

showing       that    he    assisted    or     otherwise      participated       in     the

persecution of individuals.             As a result, he argues, the burden

of proof should not have shifted to him in the IJ proceedings.




                                             13
                                         A.

       Our sister circuits have identified two requirements for

invocation    of    the    persecutor      bar    —     that   is,    “for    deciding

whether an alien’s conduct amounts to assisting or participating

in persecution.”       See Diaz-Zanatta v. Holder, 558 F.3d 450, 455

(6th Cir. 2009); Xu Sheng Gao v. United States Attorney Gen.,

500 F.3d 93, 103 (2d Cir. 2007).                  First, as explained by the

Sixth Circuit,       “there   must   have        been   some   nexus    between    the

alien’s actions and the persecution of others, such that the

alien can fairly be characterized as having actually assisted or

otherwise participated in that persecution.”                       Diaz-Zanatta, 558

F.3d at 455.       We must distinguish between “genuine assistance in

persecution and inconsequential association with persecutors,”

and then determine whether the petitioner’s conduct falls within

the activities proscribed by the persecutor bar.                        See Singh v.

Gonzales,    417    F.3d    736,   739     (7th      Cir.    2005).      The    second

requirement of the persecutor bar is that the petitioner must

“have acted with scienter,” or with “some level of prior or

contemporaneous       knowledge      that        the    persecution       was    being

conducted.”        Diaz-Zanatta,     558      F.3d     at   455.      Concerning   the

second requirement, “the evidence need not show that the alleged

persecutor    had    specific      actual        knowledge     that     his     actions

assisted in a particular act of persecution.”                      Xu Sheng Gao, 500

F.3d   at   103.      Application     of      the      persecutor     bar,    however,

                                         14
requires “some level of culpable knowledge that the consequences

of one’s actions would assist in acts of persecution.”                              Id.

                                              B.

      In assessing the applicability of the persecutor bar, we

accept the IJ’s factual determinations.                         Our review of the Final

BIA Decision is thus limited to the issue of whether, under the

facts found — and credibility determinations made — by the IJ,

Quitanilla assisted or otherwise participated in the persecution

of individuals.

      In evaluating the first requirement of the persecutor bar,

it is undisputed that Quitanilla, as a sergeant in the PRAL,

oversaw     the    investigation          and      capture       of   twenty        to     fifty

civilians and guerillas.               He then turned those captives over to

his military superiors, where the prisoners were, according to

the   country       reports,         “routinely          interrogated,          tortured     and

sometimes killed.”              J.A. 657.       On this record, evidence of the

PRAL’s    human        rights    abuses    during         the   Salvadoran        civil     war,

including    torture,           kidnapping,        and    killing     of    guerillas        and

opponents         of      the        Salvadoran          military,         is      compelling

uncontradicted.            Although       Quitanilla        denies    participating           in

such activities, his role in the persecution of twenty to fifty

individuals       cannot        be   deemed     as   “passive.”            As     our     sister

circuits have recognized, those who take custody of or transport

individuals for the purpose of persecution may be subject to the

                                              15
persecutor bar.              See Xie v. INS, 434 F.3d 136, 143 (2d Cir.

2006) (transporting “captive women to undergo forced abortions

was    assistance        in       persecution”           precluding     eligibility          for

asylum); Singh, 417 F.3d at 740 (taking “innocent Sikhs into

custody” and “transport[ing] them to the police station, where

[petitioner]          knew    they        would     be     subjected       to      unjustified

physical      abuse,”             constituted            assistance        in       prohibited

persecution).

       We turn to the persecutor bar’s second requirement — that

the petitioner “acted with scienter.”                         Based on the abuses by

the PRAL and, specifically, by the Third Brigade, the IJ found

that Quitanilla “most likely understood that the individuals he

investigated or arrested would be tortured and killed.”                                  Second

IJ    Decision    3.         We    are    unable     to    disturb     the      IJ’s    factual

findings     in       that    regard,       and     we     must   accept        his     adverse

assessment       of    Quitanilla’s          credibility.            Moreover,         we   have

recognized that “information-gathering and infiltration,” which

“led to the torture, imprisonment, and death of . . . political

opponents,        as     well       as      individuals        merely        suspected        of

affiliation           with        these     groups,”         constitutes            sufficient

assistance in the persecution of individuals on the basis of

political     opinion         to     trigger        application       of     the      analogous

persecutor bar in the asylum context.                        See Higuit v. Gonzales,



                                               16
433 F.3d 417, 421 (4th Cir. 2006). 7                     There, although petitioner

Higuit     did   not     “personally      inflict[]        physical       harm,”     he   was

nevertheless barred from asylum relief because his intelligence

activities       led    directly     to   the      persecution       of    his   political

opponents.       Id. at 418.         As we explained, “while the commission

of actual physical harm may be sufficient to bring an alien

within the persecution exception, it is not necessary.”                              Id. at

421.       In these circumstances, Quitanilla’s conduct facilitated

the persecution of guerillas and civilians.                          The BIA thus did

not err in concluding that the persecutor bar renders Quitanilla

ineligible for special rule cancellation of removal under the

NACARA.

                                             C.

       Quitanilla        counters     with        other    unavailing        contentions.

First, he posits that, because a petitioner’s mere participation

in a civil war is insufficient to trigger the persecutor bar,

his    military        involvement    with        the     PRAL   does      not   make     him

ineligible       for     NACARA     relief.             Quitanilla        supports    those

arguments with our recent decision in Pastora v. Holder, 737

F.3d 902 (4th Cir. 2013), asserting that we upheld application


       7
       The Higuit decision largely concerned the scope of the
nearly   identical   persecutor  bar   found   in   8  U.S.C.
§ 1158(b)(2)(A)(1), which applies to an alien seeking asylum.
See 433 F.3d at 418.



                                             17
of the persecutor bar to a petitioner who “was found to have

assisted the . . . same guerillas that [Quitanilla] is charged

with persecuting.”              Br. of Petitioner at 19.                   Thus, Quitanilla

maintains, denying him a special rule cancellation of removal

would “essentially leave NACARA relief an unattainable benefit”

to   a       Salvadoran      citizen       “because     nearly    every      person    in    El

Salvador         in    the   eighties       assisted     either      the    rebels    or    the

government         in   some    small      way.”        Id.     He    contends       that   the

persecutor bar should not be read so expansively as to “preclude

entire classes of legitimate asylum seekers from safe harbor,

notably        those    involved      in    civil     strife.”        See    Vukmirovic      v.

Ashcroft, 362 F.3d 1247, 1252-53 (9th Cir. 2004).                             Unfortunately

for Quitanilla, this argument is undermined by the facts that

were         explicitly      found   by    the    IJ.     The    IJ     declined      to    view

Quitanilla as a mere participant in the Salvadoran civil war.

Rather, he found Quitanilla to be a sergeant in the Salvadoran

military         who    oversaw      the    investigation         and      capture    of    his

adversaries, and who then transferred his captives to a military

unit with a record of human rights abuses.                              We are unable to

disturb those findings by the IJ, and they belie Quitanilla’s

argument that he was simply a passive soldier in the Salvadoran

military. 8


         8
       Quitanilla also contends that his absence from the DHS
(Continued)
                                                 18
        Quitanilla   also     challenges       the    IJ’s     application    of   the

burden-shifting framework to the evidence of record, maintaining

that the IJ erred in deciding that the DHS had satisfied its

prima facie burden of showing Quitanilla’s involvement in the

persecution of others.          As the immigration regulations require,

an applicant for relief from removal bears the initial burden of

“establishing     that   he    or   she    is       eligible    for   any   requested

benefit    or   privilege     and   that       it    should    be   granted   in   the

exercise of discretion.”            8 C.F.R. § 1240.8(d).              If, however,

“the 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.”       Id.    In light of the IJ’s findings relating to

human rights abuses committed by the PRAL and Quitanilla’s role

in the Salvadoran military, the IJ did not err in ruling that

the persecutor bar could be applied.                 As a result, the burden of

proof     was    properly      shifted     to        Quitanilla       to    show   the

inapplicability of the persecutor bar by a preponderance of the

evidence.       Quitanilla’s failure in that regard undermines his



list of known human rights violators establishes that he did not
assist in the persecution of other individuals.      Inasmuch as
this challenge presents a factual issue, we lack jurisdiction to
address it.



                                          19
petition for review. 9   In sum, we are satisfied that the BIA did

not err in ruling that Quitanilla, during his service in the

Salvadoran military, assisted in the persecution of individuals

because of their political views.



                                IV.

     Pursuant to the foregoing, we deny Quitanilla’s petition

for review.

                                        PETITION FOR REVIEW DENIED




     9
       Finally, Quitanilla contends that the IJ, in the context
of both of the IJ decisions, “clearly abused his discretion and
that abuse rose to the level of a due process violation.”   Br.
of Petitioner at 32. Quitanilla, however, offers no support for
such a claim, nor are we able to discern any support from the
record.



                                 20
