                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 24 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JOSE ABRAHAM MARMOL                              No. 12-71997
BERNABE,
                                                 Agency No. A029-217-336
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted August 4, 2015**
                               Pasadena, California

Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.

      Jose Marmol Bernabe, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ decision affirming the Immigration

Judge’s denial of his application for asylum, withholding of removal, relief under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Convention Against Torture, and cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act. We have jurisdiction pursuant to 8

U.S.C. § 1252, and we deny the petition for review.

      Substantial evidence supports the BIA’s conclusion that the persecutor bar

applies, rendering Bernabe ineligible for relief from removal.1 See Nuru v.

Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005); see also 8 U.S.C. §

1231(b)(3)(B)(i); 8 C.F.R. §§ 1208.13(c)(2)(i)(E), 1208.16(d)(2), 1240.66(a). The

BIA correctly concluded that Bernabe’s conduct established that he was

“individual[ly] accountab[le]” for the actions he took as a member of the National

Police. Miranda Alvarado v. Gonzales, 449 F.3d 915, 926 (9th Cir. 2006) (internal

citation and quotation marks omitted). During his time in the National Police,

Bernabe arrested guerrillas and was responsible for taking their declarations and

preparing a report that was given to his superiors. Bernabe stated in his sworn

statement to Immigration Officer Frank Faecke that he knew arrestees reported as

uncooperative would be “handle[d]” by his boss, who “had people from the special

group prepared to force the prisoner to talk.” Bernabe confirmed in his sworn

statement that the special group, in turn, would “mistreat [prisoners] to get the

      1
        The persecutor bar does not apply to applications for deferral of removal
under CAT. 8 C.F.R. § 1208.17(a). However, Bernabe expressly waived his
deferral of removal claim in his opening brief.

                                           2
truth.” He further stated that the special group “had a gym where [it] hung the

suspects and gave them electric shock.” Bernabe’s actions exceeded mere

membership in the National Police, and were instrumental to the persecution of

those whom he arrested. See id. at 928; see also Fedorenko v. United States, 449

U.S. 490, 512 n.34 (1981) (discussing what kind of conduct “fits within the

statutory language about persons who assisted in the persecution of civilians”). The

IJ did not err in weighing the asylum officer's testimony and the statements in

Bernabe's sworn statement over Bernabe's testimony at his removal hearing.

Substantial evidence supports the IJ's conclusion that nothing in the record

indicates that the asylum officer was not credible and that Bernabe's attempt to

distance himself from his earlier statements once he was before the IJ was

"disingenuous," since by that time Bernabe knew that he could be denied asylum

on the basis of the persecutor bar.

      The BIA also correctly concluded that Bernabe failed to demonstrate that

any “surrounding circumstances” militated against the conclusion that he was a

persecutor. Miranda Alvarado, 449 F.3d at 926 (citing Vukmirovic v. Ashcroft,

362 F.3d 1247, 1252-53 (9th Cir. 2004)). Bernabe has not argued, much less

demonstrated, that his actions were motivated by self-defense or any other

extenuating circumstances. Rather, Bernabe testified that he voluntarily joined the


                                          3
National Police, and during his time in that organization, volunteered for a special

service position guarding the presidential home.

      Petition DENIED.




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