                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 15 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



VICTOR MANUEL ALAS and ANA                        No. 08-74577
MARIA DIAZ,
                                                  Agency Nos.        A029-318-674
              Petitioners,                                           A073-949-521

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                      Argued and Submitted November 6, 2012
                               Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT and THOMAS, Circuit Judges.

       Substantial evidence supports the conclusion of the Board of Immigration

Appeals (“BIA”) that petitioners are statutorily ineligible for relief under § 203 of

the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub.

L. No. 105-100, Title II, 111 Stat. 2160, 2193-2201 (1997), as amended by Pub. L.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
No. 105-139, 111 Stat. 2644, 2644-45 (1997), under NACARA’s “persecutor bar,”

which precludes special rule cancellation for individuals who “ordered, incited,

assisted, or otherwise participated in the persecution of an individual because of

the individual’s race, religion, nationality, membership in a particular social group,

or political opinion.” 8 C.F.R. § 1240.66(a); 8 U.S.C. § 1231(b)(3)(B)(i).

      Although Alas did not directly participate in physical acts of torture or

murder, substantial evidence supports the BIA’s conclusion that his conduct was

material, not merely tangential, to the persecution. See Miranda Alvarado v.

Gonzales, 449 F.3d 915, 928 (9th Cir. 2006) (applying persecutor bar to alien who

did not participate in physical acts of torture, but materially assisted by translating

during interrogation sessions).

      Thus, contrary to petitioners’ assertions, the BIA properly relied on Alas’s

individual actions during his service in the Salvadoran National Guard, not his

“mere membership” in that organization, to determine that he materially assisted in

the persecution of suspected Communist guerrillas. See id. at 926-27; Vukmirovic

v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004). Further, substantial evidence

supports the BIA’s finding that the persecution in which Alas assisted was on

account of political opinion.




                                            2
      Nor, as petitioners contend, does the existence of armed conflict preclude

application of the persecutor bar. Although persecution does not include harm

inherent in armed conflict, “torturing individuals selected for their affiliation with

an opposition group is not inherent in armed conflict.” Miranda Alvarado, 449

F.3d at 932. The BIA properly considered the evidence in context, and substantial

evidence supports its conclusion that Alas’s individual actions warranted

application of the persecutor bar.




      PETITION DENIED.




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