                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2095


NICOLAS R. PASTORA, a/k/a Nicholas Pastora−Hernandez,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Argued:   September 17, 2013            Decided:   December 11, 2013


Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.


Petition for review denied by published opinion.          Judge Wynn
wrote the opinion, in which Judge Niemeyer and           Judge Floyd
concurred.


ARGUED: William Robinson Heroy, GOODMAN, CARR, LAUGHRUN, LEVINE
& GREENE, Charlotte, North Carolina, for Petitioner.      Alison
Marie Igoe, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.    ON BRIEF: Stuart F. Delery, Principal
Deputy Assistant Attorney General, Lyle D. Jentzer, Senior
Counsel for National Security, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
WYNN, Circuit Judge:

      The issue on appeal is whether the evidence in this case is

sufficient to require an applicant who is seeking relief from

removal    under    the     Nicaraguan   Adjustment        and   Central    American

Relief Act (“NACARA”) to bear the burden of proving that he did

not engage in persecution in his home country.                   We hold that the

record contains evidence sufficient to trigger the applicant’s

burden,    and    we   agree    with   the    Board   of    Immigration      Appeals

(“BIA”) and the Immigration Judge (“IJ”) that the applicant did

not meet his burden.             Accordingly, we deny the petition for

review.



                                         I.

      Nicolas Rene Pastora-Hernandez (“Pastora”) was born in El

Salvador in 1941.            He entered the United States illegally in

1986, was granted voluntary departure in 1988, and illegally

reentered the United States in 1989.              Pastora applied for asylum

in 1991.         The Immigration and Naturalization Service (“INS”)

granted Temporary Protected Status to Pastora, which expired at

the end of 1994.          Pastora again applied for asylum in 1995.

      In   his     1995    asylum   application,      Pastora     wrote     that   he

“served in the Civil Patrol unit” and that he was a commandant

of his unit in his hometown (San Luis de la Reina).                        A.R. 327–

28.   Pastora also wrote: “[a]s head of my unit, I was an obvious

                                         2
target for the guerrilla organization,” and “I was persecuted

and forced to leave my country by the guerillas.”                        A.R. 327–28.

In   1999,        Pastora     applied     for       special   rule   cancellation    of

removal under § 203 of NACARA, Pub. L. No. 105-100, 111 Stat.

2160, 2196 (1997).              On his NACARA application, Pastora stated

that       if   he   were    removed     to   El     Salvador   he   “would   face   the

possibility of being punished for not supporting the Civil War.”

A.R. 301.

       In 2006, an officer with the United States Citizenship and

Immigration Services (“USCIS”) 1 interviewed Pastora in connection

with his NACARA application.                   In response to a question about

whether he had “ever served in the military or in the police” in

El Salvador, Pastora answered that he had volunteered in the

civil patrol for three hours per week for twelve years in San

Miguel      and      in   Sonsonate. 2        Pastora    also   stated   that   he   had

carried a knife in connection with his volunteer duties and that

“the military would give firearms for a short period of time,



       1
       USCIS is a division of the Department of Homeland Security
(“DHS”). In 2003, DHS became responsible for the duties of the
former Immigration and Naturalization Service (“INS”).        See
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002).
       2
        Over the course of his interviews, Pastora gave
conflicting accounts regarding the length of his service, which
may have been as short as eight years or as long as eighteen
years.



                                                3
only while on duty.”             A.R. 354.         Following this interview, USCIS

informed    Pastora       that      he   “appeared       to   be   barred      from   relief

under section 240A(c)(5) of the Immigration and Nationality Act

(persons      who        ordered,        incited,         assisted,       or     otherwise

participated in the persecution of others on account of race,

religion, nationality, membership in a particular social group,

or political opinion).”             A.R. 265.

     In 2009, during an interview with a second asylum officer,

Pastora reaffirmed his participation in the civil patrol, and he

stated that his rank was “cabo,” which was “above soldier but

below sergeant.”              A.R. 358–59.         Pastora testified that he was

given weapons training, but he denied ever engaging in combat or

seeing anyone arrested, harmed, or taken prisoner.                               He stated

that he reported to “the commandante [sic] from the army in San

Sonate [sic]” every weekend.               A.R. 361.

     In    2011,        the    IJ    conducted       a    hearing    during      which    he

received into evidence two documents submitted by the Department

of   Homeland      Security         (“DHS”)     that      “detail[ed]       human     rights

violations”       in    the    communities         in    El   Salvador    where       Pastora

lived and patrolled.             A.R. 111, 114–15.             The documents included

a table that listed the names of victims and violators.                               The IJ

also admitted a 2006 USCIS memo to the file that explained why

USCIS     found        Pastora      to    be       ineligible       for   special        rule

cancellation of removal.

                                               4
       The IJ then took testimony from Pastora, Pastora’s son, and

Pastora’s      wife.       Pastora    stated          that   he    was   part    of     an

organization       that       protected        the     local      community      against

guerillas.       However, when he was asked to explain his duties,

his rank, his length of service, and whether he carried a weapon

or    received    training,     Pastora        gave    testimony    that    conflicted

with what he had previously told the asylum officers in his

sworn statements.         Pastora’s lawyer acknowledged to the IJ that

Pastora’s testimony had “not been easy” and that Pastora had

been inconsistent in both of his USCIS interviews.                       A.R. 179.

       Upon consideration of the evidence, the IJ deemed Pastora

barred from relief because he was unable to meet “his burden of

proof to show that the persecutor bar to relief under NACARA

does not apply.”          A.R. 90.       Pastora appealed to the BIA.                  The

BIA    determined      that    Pastora’s       admitted      participation       in    the

civil patrol, coupled with the government’s evidence of human

rights violations that occurred during the time and in the place

that    Pastora    patrolled,      was    sufficient         to   trigger     Pastora’s

burden “to show by a preponderance of the evidence that the

persecutor bar does not apply.”                 A.R. 3.      The BIA dismissed the

appeal, finding no clear error in the IJ’s adverse credibility

determination and, under de novo review, a failure by Pastora to

show    “the      inapplicability         of     the     persecutor        bar    by    a



                                           5
preponderance of the evidence.”                 A.R. 5.       Pastora petitions this

Court for review.



                                           II.

                                           A.

      With his first argument on appeal, Pastora contends that

the IJ and the BIA incorrectly determined that the persecutor

bar   applied      and    thus    erred    in    requiring      him   to    prove       by    a

preponderance       of     the    evidence       that    he    did    not       engage       in

persecution.        “When the BIA and the immigration judge both issue

decisions     in    a    case,   we   review      both    decisions    upon       appeal.”

Kourouma v. Holder, 588 F.3d 234, 239–40 (4th Cir. 2009).                               Here,

the issues on appeal arise from the BIA’s affirmance of the IJ’s

decision    and     its    agreement       with    the    reasoning        in    the     IJ’s

decision.       We review issues of law de novo, Mbea v. Gonzales,

482 F.3d 276, 279 (4th Cir. 2007), and factual findings under

the   substantial         evidence     standard,         reversing     only       if      the

evidence compels a contrary finding, 8 U.S.C. § 1252(b)(4)(B).

      Under     NACARA, 3        certain     nationals         from   Guatemala,             El

Salvador,     and       former    Soviet     bloc       countries     may       apply     for


      3
       NACARA was enacted in 1997 and amended later that same
year. It “amended the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, which had amended the Immigration
and Nationality Act (the ‘INA’) by rendering certain groups of
aliens inadmissible.” Barahona v. Holder, 691 F.3d 349, 350 n.1
(Continued)
                                            6
suspension     of     deportation      or        special    rule     cancellation         of

removal. 4    See NACARA § 203, 111 Stat. at 2196–99.                       An 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.                              8 C.F.R. §§

1240.8(d), 1240.64(a).

      A    noncitizen      who      meets     his     burden       under    NACARA       may

nonetheless be ineligible for cancellation of removal due to the

applicability       of   one   of   the     mandatory       bars    contained       in   the

Immigration     and      Nationality        Act     (“INA”).         See    8    U.S.C.    §

1229b(c) (listing six mandatory bars).                   At issue in this case is

the   so-called      persecutor       bar,       which     renders    ineligible         for

relief from removal any alien who the Attorney General decides

“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 U.S.C. § 1231(b)(3)(B)(i).                  ”If the

evidence     indicates     that     [the     persecutor      bar]     may       apply,   the



(4th Cir. 2012).    NACARA is codified in scattered sections of
the United States Code, including Title 8. Id.
      4
        Applicants whose deportation proceedings began before
April 1, 1997, may apply for suspension of deportation.       8
C.F.R. § 1240.65.    Applicants whose removal proceedings began
after April 1, 1997, may apply for special rule cancellation of
removal. Id. §§ 1240.65, 1240.66.



                                             7
alien shall have the burden of proving by a preponderance of the

evidence that [the persecutor bar] do[es] not apply.”        8 C.F.R.

§ 1240.8(d). 5    As we stated in Higuit v. Gonzales, 433 F.3d 417

(4th Cir. 2006), “[i]f there is evidence that the alien engaged

in persecution, he must prove by a preponderance of the evidence

that he is not barred from relief on this ground.”      Id. at 420.

       In this case, the administrative record contains Pastora’s

sworn statements that he served as a leader in a local civil

patrol for as many as seventeen or eighteen years during the

height of El Salvador’s civil war.        Starting in 1969, he worked

two nights per week “trying to collect people for the army.”

A.R. 360.      He received two months of training in 1983 regarding

how to “let the military know where the guerrillas are.”         A.R.

360.       Pastora was also given rifle training and a machete to

take with him on his patrols.         Sometimes the military provided

him with firearms while he was on duty.       He reported the results

of his patrol to the military base on a weekly basis, and he

       5
       The text of the regulation, 8 C.F.R. § 1240.8(d), includes
the language “may apply”, which may be in tension with the
language of the statute, 8 U.S.C. §§ 1229b(c)(5), 1231(b)(3)(B),
which requires that the attorney general “decide” that the alien
engaged in persecution before the bar applies.      We note that
some of our sister circuits seem to have read the word “may” out
of the regulation. See, e.g., Diaz-Zanatta v. Holder, 558 F.3d
450, 455 (6th Cir. 2009); Gao v. U.S. Att’y Gen., 500 F.3d 93,
103 (2d Cir. 2007); Singh v. Gonzales, 417 F.3d 736, 740 (7th
Cir. 2005).   We do not confront this issue today because ample
record evidence indicates that the persecutor bar applies here.



                                  8
walked    “[p]eople      that   were    taken     to     be    soldiers”          into    town,

where they were picked up and taken “to San Miguel by truck.”

A.R. 359.        There is no evidence that he attempted to quit the

patrol.     Rather, Pastora testified that he served voluntarily in

the two communities in which he lived until he left the country

in 1986.

       The record also contains evidence of numerous human rights

abuses committed by armed groups associated with the military—

local patrols such as Pastora’s—in the area and during the years

that     Pastora     admitted     to    patrolling            for    his     unit.           The

“patrullas       cantonales”     were    created       in     the    early     1900s,        and

between 1967 and 1969 they were organized and expanded into a

well-run    militia      force.        These     local      patrols        were    pervasive

throughout the country, and they served as the eyes and ears of

the military and other paramilitary groups that were notorious

for    massive     and   widespread     human     rights       abuses.            The    record

contains a list of the names and ages of victims in Pastora’s

communities,       as    well   as     the   dates       that       they    were        killed,

disappeared, sexually assaulted, captured, or tortured.

       By 1980, the military began to command and arm the members

of the local groups with rifles, handguns, and machetes.                                      In

addition    to     assisting    in   the     persecution        carried       out       by   the

military     and     paramilitary       groups,        the     local       patrols        were,

themselves,        directly     responsible       for        numerous       human        rights

                                             9
abuses.        In 1983, for example, a local unit carried out the

massacre of seventy Indian peasants in Sonsonate, the community

to which Pastora had moved—and in which he continued patrolling—

in 1982.

     The    totality        of   the   specific          evidence   in   this     case    was

sufficient       to       indicate     that        the    persecutor       bar     applied,

requiring Pastora to prove by a preponderance of the evidence

that he did not assist or otherwise participate in persecution.

                                              B.

     Next, we turn to the adverse credibility finding.                              The IJ

found that Pastora was not credible “because of the cumulative

effect of . . . inconsistencies, omissions and contradictions in

[his] evidence.”            A.R. 91.     The IJ went on to explain each of

these inconsistencies, omissions, and contradictions at length,

noting at one point that Pastora’s confusing and contradictory

testimony “appear[ed] to the Court to represent an attempt by

[Pastora] to hide incriminating information.”                        A.R. 92.      The BIA

upheld the IJ’s determination in its entirety.                             On appeal, we

review    an    adverse       credibility          determination      to       ensure    that

substantial evidence exists to support it.                          Djadjou v. Holder,

662 F.3d 265, 273 (4th Cir. 2011).                         Although we accord broad

deference      to     a    credibility        finding,       our    deference      is    not

absolute because the IJ must provide “specific, cogent reasons”

to support an adverse credibility determination.                         Id.

                                              10
       Key to the adverse credibility finding in this case was

Pastora’s 1995 asylum application.               In that application, Pastora

stated twice that he had been a commandant in the civil patrol.

Pastora later told an asylum officer and also the IJ that he was

unaware that his application contained such statements, and he

indicated that he depended on others to fill out the forms for

him.      The    1995    application     also    explained        that    Pastora     was

seeking asylum because there had been “too much killing” during

the civil war and because the guerillas were looking for him and

his family.      A.R. 327.

       Yet Pastora testified before the IJ that he was unaware of

who the guerillas were and that he had not heard of any human

rights abuses having occurred anywhere that he had patrolled.

He also testified that he did not know who killed his brother

and that he was unaware that his asylum application stated that

the guerillas killed his brother and were looking for him and

his    family.          These   are   only      some    examples         of   the     many

inadequately      explained       discrepancies        in    Pastora’s        statements

over the course of his immigration proceedings.

       The IJ was “left not knowing which of Respondent’s accounts

to believe, if any.”              A.R. 91.        He listed several specific

reasons     explaining          how   the       cumulative        effect        of    the

inconsistencies         in   Pastora’s   testimony          led   him    to    make   the

adverse credibility finding.              The IJ thoroughly explained the

                                         11
relevance    of    each        inconsistency,      noting   that     he    was     most

troubled    by    the   variety       of   responses    that     Pastora    gave     to

questions about the training and weapons that he had received

from the military while in the civil patrol.                     When he was asked

to account for his different answers, Pastora denied that he had

made certain statements, said that he did not remember making

other statements,         or    changed     his   account   of    past    events    yet

again.

     We agree with the BIA that the record contains substantial

evidence    supporting          the   adverse     credibility      finding.         We

therefore must defer to that finding.                  Camara v. Ashcroft, 378

F.3d 361, 367 (4th Cir. 2004) (“We . . . defer to credibility

findings that are supported by substantial evidence.”). 6



                                           III.

     For the foregoing reasons, we deny Pastora’s petition for

review.

                                                                   PETITION DENIED




     6
       Pastora argues that any material discrepancies should be
attributed to his age, his illiteracy, or the length of time
that has passed between his testimony and the events that
occurred in El Salvador.      However, the record contains no
evidence that calls into question Pastora’s capacity to testify
truthfully or to recall past events. This unsupported argument
thus fails.



                                            12
