                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ROBERTO FERRER MIRANDA              
ALVARADO; MADELEINE JANET
                                         No. 03-70165
MORALES LOPEZ,
                     Petitioners,        Agency Nos.
               v.                       A72-136-241
                                         A72-136-240
ALBERTO R. GONZALES, Attorney
                                          OPINION
General,
                     Respondent.
                                    
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                   Argued and Submitted
         July 15, 2004—San Francisco, California
          Submission Vacated November 4, 2004
                Resubmitted June 14, 2005

                  Filed March 21, 2006

       Before: Betty B. Fletcher, Edward Leavy, and
            Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Berzon;
              Concurrence by Judge Leavy




                          2891
               MIRANDA ALVARADO v. GONZALES               2895


                         COUNSEL

Nadeem H. Makada, Burlingame, California, for the peti-
tioner.

Thomas K. Ragland and Marshall Tamor Golding (on the
brief), United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the
respondent.


                         OPINION

BERZON, Circuit Judge:

   We apply a provision of the Immigration and Nationality
Act (INA) that forbids the granting of asylum and withhold-
ing of removal to individuals who participate in the persecu-
tion of others on a protected ground, even if they themselves
have a well-founded fear of persecution should they return.
Roberto Ferrer Miranda Alvarado (“Miranda”) sought asylum
and withholding of removal, but an Immigration Judge (IJ)
held that Miranda was barred from relief because he had “as-
sisted in the persecution of others . . . on account of their
political opinion.” See 8 U.S.C. §§ 1101(a)(42) (defining refu-
gees to exclude “any person who ordered, incited, assisted, or
2896             MIRANDA ALVARADO v. GONZALES
otherwise participated in the persecution of any person on
account of race, religion, nationality, membership in a partic-
ular social group, or political opinion”), 1158(b)(2)(A)(i)
(barring such persecutors from asylum), 1231(b)(3)(B)(i)
(barring such persecutors from withholding of removal).1 We
hold that the IJ properly decided that Miranda “assisted in
persecution” and is thus ineligible for asylum and withholding
of removal.

                         BACKGROUND

   In 1981, Miranda, a native and citizen of Peru, joined the
Peruvian Civil Guard in Lima. He was nineteen years old. His
duties included protecting government officials and banks
from attacks by guerrilla organizations. Because Miranda was
a native speaker of Quechua as well as Spanish, he was also
assigned to serve as a community leader in an impoverished
Quechua-speaking neighborhood on the city’s outskirts. In
that role his tasks ranged from resolving land-use disputes to
preventing infiltration by the guerrilla organization Sendero
Luminoso (“Shining Path”). “Sendero Luminoso is a Maoist
guerilla organization, founded around 1980, that opposes the
current Peruvian government. Sendero Luminoso commits
terrorist acts against both government officials and civilians.”
Cruz-Navarro v. INS, 232 F.3d 1024, 1027 n.4 (9th Cir.
2000). Miranda presented evidence — including evidence that
Shining Path members shot another community leader and
destroyed her body with explosives — indicating that as a
community leader he faced substantial risks from the Shining
Path.

   Beginning in 1982, Miranda received orders to serve as an
interpreter for other officers who interrogated suspected Shin-
ing Path members. During interrogations, suspects were often
  1
    Madeleine Lopez, Miranda’s wife, is derivatively included in Miran-
da’s asylum application and was thus also barred. Where appropriate, we
refer to the two petitioners collectively as “Miranda.”
                MIRANDA ALVARADO v. GONZALES                 2897
subjected to electric shock torture and beaten on the legs and
feet with rubber batons. According to Miranda, “many times
in a closed room with sand . . . electrical current was passed
into their hands or feet,” and the interrogees “shouted and
gave expressions of pain.” At his hearing, Miranda admitted
witnessing these acts but denied personally executing them.
He also maintained that he was unable to influence the tor-
ture: “I had no power to do anything about it. I wasn’t able
to do anything about it because that would have been against
my superiors.” Miranda stated that if he refused, “it would
have affected [his] performance rating and [he] would not
have been promoted.” Miranda attempted formally to resign
only in 1988, six years after the interrogations began. He did
so assertedly “because I didn’t want to belong anymore
because I didn’t like how the people doing the interrogations
abused the Shining Path members,” but on his resignation
form he cited “family reasons.”

   Miranda carried out his translating duties two to three times
a month for seven years. Asked how he felt watching the
interrogations, Miranda replied:

       Very bad. I thought about all my family. . . . [I]f
    I had been able to do anything about it, I would have
    never let that happen. If there had been a different
    kind of authority, it wouldn’t have happened.
    Because it was my orders from my superiors to go
    and do this work, I had no other alternative than to
    go do it. . . . I had to go interpret because I had no
    other orders.

   Miranda was asked if he was “ever able to tell anyone to
stop the current or stop doing what they were doing.” He
answered:

      Yes, because I’m a humanitarian and I feel the
    suffering of other people. And I was able to tell them
    don’t put so much current on or don’t put any more
2898            MIRANDA ALVARADO v. GONZALES
    because sometimes they couldn’t even speak. Yes,
    because the Quechua that they spoke, many times
    they couldn’t even speak it after they were getting
    this current, so I would say please don’t put any
    more. And they said to me you’re just an interpreter.
    You shouldn’t give your opinion here. You’re sup-
    posed to just come and interpret what they are say-
    ing.

   In 1989, Miranda requested and received “anti-terrorist and
survival training.” In the course of his training, he helped cap-
ture three Shining Path members who had attacked the train-
ing group. These guerrillas threatened Miranda and his
companions, stating that “each of you will die; we never for-
get anyone.” Upon returning home Miranda found that his
wife and children had been visited by masked men who stole
his police uniforms and painted or posted Shining Path slo-
gans on the walls.

   Miranda removed his family to a small city sixty miles to
the south. He remained in Lima to carry out his police duties.
He slept at the police station, returning to his Lima residence
only every few days to take care of the family dog. In August
1990, Shining Path members again vandalized Miranda’s
property and killed his dog. They painted “we’ll never forget
you” on the walls and pinned a note to the corpse of his dog
with a threat: “[Y]ou will die in the same way.”

   Miranda fled to the United States on August 26, 1990, and
his wife followed in 1992. Miranda applied for asylum in
June 1993. He stated in his asylum application that: “I have
been directly targeted [by the Shining Path] because of my
police work and anti-terrorist . . . training, and ideologies.”
His asylum application was referred to the Immigration Court
because “[a]lthough the applicant has demonstrated a well-
founded fear of persecution, he is barred from receiving asy-
lum in the U.S. because he participated in the persecution of
others.”
                   MIRANDA ALVARADO v. GONZALES                         2899
  The former Immigration and Nationalization Service (INS)2
charged Miranda with being present in this country without
being admitted or paroled. At the removal hearing, Miranda
admitted the allegations and conceded removability, but
requested asylum and withholding of removal. The IJ denied
Miranda’s application, concluding that:

        even if Mr. Miranda did not interrogate Shining
     Path detainees and apply electric shocks or beat
     them, he was a necessary part of the interrogation.
     Without his services as a Quechua interpreter, the
     interrogations could not proceed. With his services,
     they did proceed. Over six years, the respondent par-
     ticipated in such interrogations two to three times per
     month or approximately 144 to 216 times. He did not
     protest his role at any time despite his stated qualms
     and he did not seek to resign from police service
     until 1990, even assuming that his resignation appli-
     cation was motivated by the psychic wear and tear of
     his role in the interrogations or his disagreement
     with them.3

The IJ determined that Miranda had:

       assisted in the persecution of others, namely,
     Shining Path detainees, on account of their political
     opinion, that is, their membership in the highly ideo-
     logical Shining Path. As to the detainees’ political
     opinion, there is no indication in the record that the
   2
     On March 1, 2003, the INS ceased to exist and its functions were trans-
ferred to the newly-created Department of Homeland Security. See
Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). For the
sake of consistency, we refer to the INS in this opinion.
   3
     The IJ’s timeline is not precisely accurate, as Miranda testified that he
attempted formally to resign in 1988 and then sought anti-terrorist train-
ing. Miranda does not argue that he was compelled to remain in the police
force on account of factors other than duty, police regulations governing
resignations, and career considerations.
2900            MIRANDA ALVARADO v. GONZALES
    detainees were being interrogated for crimes or for
    reasons other than their connection with the Shining
    Path.

   Miranda appealed to the BIA, asserting that under
Fedorenko v. United States, 449 U.S. 490 (1981), the IJ used
the wrong criteria to determine whether Miranda’s translation
services amounted to assistance in persecution. He also con-
tended that he was an officer of the Civil Guard carrying out
his duties in the midst of a civil war and, therefore, the alleged
persecutory acts were not “on account of” the suspects’ politi-
cal opinions, but on account of their participation in an armed
conflict. Under the agency’s streamlining procedures, a BIA
board member determined that Miranda’s appeal did not merit
consideration by a three-member panel and affirmed the
results of the IJ’s decision but not necessarily his reasoning.
See 8 C.F.R. § 1003.1(e)(4); Falcon Carriche v. Ashcroft, 350
F.3d 845, 849 (9th Cir. 2003).

                                I

                      Chevron Deference

   When a case is streamlined, the BIA issues a form order
indicating that “[t]he decision below is . . . the final agency
determination.” 8 C.F.R. § 1003.1(e)(4)(ii). We therefore
review the IJ’s opinion in this case. Falcon Carriche, 350
F.3d at 849. The IJ’s factual findings “are conclusive unless
any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

   With respect to the IJ’s legal determinations, the govern-
ment argues that we must apply the deferential review pre-
scribed in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Chevron specifies that:

      When a court reviews an agency’s construction of
    the statute which it administers, it is confronted with
                MIRANDA ALVARADO v. GONZALES                    2901
    two questions. First, always, is the question whether
    Congress has directly spoken to the precise question
    at issue. If the intent of Congress is clear, that is the
    end of the matter; for the court, as well as the
    agency, must give effect to the unambiguously
    expressed intent of Congress. If, however, the court
    determines Congress has not directly addressed the
    precise question at issue, the court does not simply
    impose its own construction on the statute, as would
    be necessary in the absence of an administrative
    interpretation. Rather, if the statute is silent or
    ambiguous with respect to the specific issue, the
    question for the court is whether the agency’s answer
    is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). Chevron deference, how-
ever, does not apply to all statutory interpretations issued by
agencies; certain criteria, discussed below, must be met. See
United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).

   [1] We have referred to the Chevron doctrine in the context
of reviewing a statutory interpretation rendered by an IJ,
rather than the BIA. We have not had occasion, however, to
apply the second, deferential prong of Chevron where, as in
this case, there is no statutory interpretation adopted by the
BIA.

   In Avendano-Ramirez v. Ashcroft, 365 F.3d 813 (9th Cir.
2004), for example, we reviewed an IJ opinion that included
an interpretation of the INA, which the BIA affirmed under
the same streamlining procedure used here. Id. at 815. We
noted that “of course, the usual Chevron rules apply” and
summarized those rules, including a statement of when Chev-
ron deference applies. Id. at 816 (footnote omitted). We pro-
ceeded to analyze the statutory question at issue, however,
exclusively under prong one of Chevron, concluding that
“Congress has spoken quite clearly.” Id. at 819. We did not
consider whether a single IJ’s statutory interpretation is enti-
2902            MIRANDA ALVARADO v. GONZALES
tled to judicial deference as an agency interpretation. See also
Acosta v. Gonzales, No. 04-72682, 2006 WL 408206, *1, *2
n.4 (9th Cir. Feb. 23, 2006) (reciting the Chevron framework
before concluding that “an agency is not owed deference
when the issue is the interpretation of Circuit law rather than
the statute”).

   Similarly, while explaining the standard of review in
Zahedi v. INS, 222 F.3d 1157 (9th Cir. 2000), we stated that
“[w]e owe deference to legal decisions rendered by the BIA
and IJ under the rubric of Chevron.” Id. at 1162 (citing INS
v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). Zahedi did
not, however, address any statutory interpretation by the BIA
or the IJ. Instead, it dealt only with the application of estab-
lished legal concepts to the facts of the case. For that reason,
and also because the BIA in Zahedi “adopted” the IJ’s deci-
sion, id., there was no reason to consider the degree of defer-
ence owed to IJs’ statutory interpretations.

   Here, as the government recognizes, the statute does not
spell out what is meant by “assist[ing], or otherwise partici-
pat[ing]” in the persecution of others. For that reason, the
government’s arguments supporting the denial of Miranda’s
petition for review hinge on the assertion that we must defer
under prong two of Chevron to the IJ’s interpretation of the
pertinent statutory provisions as including Miranda’s actions
with regard to Shining Path members. We must therefore
determine whether an IJ’s statutory interpretations are entitled
to Chevron deference under the agency’s streamlining regula-
tion. We conclude that they are not.

   [2] Recent Supreme Court case law has developed “the lim-
its of Chevron deference owed to administrative practice in
applying a statute.” Mead, 533 U.S. at 226. Deference to
administrative rulings is appropriate only if “the agency inter-
pretation claiming deference was promulgated in the exercise
of” congressionally-delegated authority “to make rules carry-
ing the force of law.” Id. at 226-27. Congress has generally
                MIRANDA ALVARADO v. GONZALES                 2903
delegated authority to the Attorney General to interpret immi-
gration statutes, see 8 U.S.C. §§ 1103(a)(1), 1158(d)(5)(B),
and, as we develop below, a considered, precedential statutory
interpretation adopted by the Attorney General or his dele-
gatee, the BIA, is entitled to Chevron deference as an inter-
pretation that has “the force of law.” An individual IJ’s
statutory interpretation, summarily affirmed by the BIA under
the streamlining procedure, does not, however, result in a stat-
utory interpretation that carries the “force of law.”

   Mead declined to apply Chevron deference when agency
rulings had no “lawmaking pretense” and did not bind third
parties. 533 U.S. at 233. Our cases applying Mead treat the
precedential value of an agency action as the essential factor
in determining whether Chevron deference is appropriate. See
High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648 (9th
Cir. 2004) (denying Chevron deference when agency was
“not acting with the force of law . . . , not acting in a way that
would have precedential value for subsequent parties.”); Wil-
derness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051,
1067 (9th Cir. 2003) (en banc) (denying Chevron deference
when agency action was “not an interpretation of a statute that
will have the force of law generally for others in similar cir-
cumstances”); Hall v. EPA, 273 F.3d 1146, 1156 (9th Cir.
2001) (“Interpretations of the Act set forth in such non-
precedential documents are not entitled to Chevron defer-
ence.”). True to these principles, we have stated in the immi-
gration context that Chevron deference is appropriate when
the BIA “ ‘intended to issue an interpretation’ of a statute it
enforces.” Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.
2004) (citing Hernandez v. Ashcroft, 345 F.3d 824, 839 n.13
(9th Cir. 2003)).

  [3] Where the BIA simply affirms the results of an IJ’s
decision without issuing its own opinion, let alone offering its
own statutory analysis or indicating any intent to create prece-
dent that will bind other IJs or itself, the Mead test is not met.
After such an affirmance, another IJ could reach the opposite
2904            MIRANDA ALVARADO v. GONZALES
conclusion without violating any established agency position.
The IJ’s opinion is just that — the opinion of a single IJ, with-
out precedential value and without the imprimatur of the
Attorney General or the Attorney General’s delegatee, the
BIA. See 8 C.F.R. § 1003.1(d)(1) (delegating the Attorney
General’s statutory interpretation authority only to the BIA).
Such an individual IJ’s statutory interpretation is not prece-
dential under the Attorney General’s regulations. See id.
§§ 103.3(c) (listing types of precedential decisions);
103.37(g) (same). Just as the tariff ruling in Mead was issued
without notice and comment procedures, was not published,
and could be modified without notice and comment, 533 U.S.
at 223, an IJ’s ruling is issued without the procedures required
for a precedential BIA opinion, see 8 C.F.R. § 1003.1(g)
(describing procedures), is not published, and could be contra-
dicted by another IJ or by the BIA in a later opinion.

   The sheer number of IJ decisions underscores our conclu-
sion that they do not carry the force of law and are thus not
entitled to Chevron deference. The Supreme Court has
observed that: “Any suggestion that rulings intended to have
the force of law are being churned out at a rate of 10,000 a
year at an agency’s 46 scattered offices is simply self-
refuting.” Mead, 533 U.S. at 233. The same rationale applies
to IJ decisions. IJs working at 53 immigration courts located
throughout the United States issue hundreds of thousands of
decisions annually — more than 170,000 in 2002 alone. OFFICE
OF PLANNING AND ANALYSIS, EXECUTIVE OFFICE OF IMMIGRATION
REVIEW, U.S. DEP’T OF JUSTICE, FY 2004: STATISTICAL YEAR
BOOK B1, D1, available at http://www.usdoj.gov/eoir/
statspub/fy04syb.pdf (Mar. 2005). The same conclusion
applies if we consider only those IJ decisions summarily
affirmed by the BIA under the streamlining regulation. Those
cases have numbered in the thousands per month since the
streamlining regulation went into effect in 2002. See COMM.
ON IMMIGRATION POLICY, PRACTICE AND PRO BONO, AMERICAN
BAR ASSOCIATION, BOARD OF IMMIGRATION APPEALS: PROCE-
DURAL REFORMS TO IMPROVE CASE MANAGEMENT, app. 24
                   MIRANDA ALVARADO v. GONZALES                       2905
(2003), available at http://www.dorsey.com/files/upload/
DorseyStudyABA_8mgPDF.pdf.

   In some circumstances, of course, we do apply Chevron
deference to the legal interpretations of the INA by the Attor-
ney General and his delegatees. In INS v. Aguirre-Aguirre,
526 U.S. 415 (1999), for instance, the Supreme Court applied
Chevron deference where the BIA and the Attorney General
explicitly adopted a particular statutory interpretation, id. at
424, and where the BIA, rather than an individual IJ, used its
power granted by the Attorney General to “give[ ] ambiguous
statutory terms concrete meaning through a process of case-
by-case adjudication.” Id. at 425 (internal quotation marks
omitted). See also Shivaraman v. Ashcroft, 360 F.3d 1142,
1145 (9th Cir. 2004) (“We review de novo an agency’s con-
struction of a statute that it administers, subject to established
principles of deference.”); Ghaly v. INS, 58 F.3d 1425, 1429
(9th Cir. 1995) (noting that “[t]he Board’s purely legal inter-
pretations of the Act are reviewed de novo, but are generally
entitled to deference under Chevron”).

   Neither of those conditions is present when the BIA affirms
an IJ’s decision without opinion under the streamlining regu-
lations. In such cases, the BIA does not explicitly adopt a stat-
utory interpretation.4 Indeed, we do not know on what
   4
     There are cases in which an IJ’s decision will simply apply BIA prece-
dent that is subject to Chevron deference. See, e.g., Damko v. INS, 430
F.3d 626, 634 n.13 (2d Cir. 2005) (“[T]he IJ did not engage in indepen-
dent statutory construction, but rather relied on the BIA’s prior construc-
tion of the INA to which we, in turn, accord deference.”). In its thirteen
lines of argument and three footnotes, the government’s brief does not cite
any agency decisions to which it asks us to defer. A subsequent preceden-
tial opinion by the Attorney General, In re A-H-, 23 I. & N. Dec. 774
(A.G. 2005), does discuss the persecutor bar here at issue. A-H-’s factual
posture differs from the one before us, however, in that the Attorney Gen-
eral addressed the relief applications of “a self-proclaimed leader-in-exile
of the Islamic Salvation Front of Algeria.” Id. at 775. Accordingly, the
focus of the Attorney General’s analysis was on the proximity of a leader
2906               MIRANDA ALVARADO v. GONZALES
grounds the BIA decided the case, because its affirmance “ap-
proves the result reached in the decision below [, but] does
not necessarily imply approval of all of the reasoning of that
decision.” 8 C.F.R. § 1003.1(e)(4)(ii). At the time relevant to
this case, Congress delegated plenary authority to the Attor-
ney General to enforce the INA. See 8 U.S.C. § 1103(a)
(2000). The statute empowered the Attorney General to estab-
lish regulations to carry out that statutory delegation and
granted him supervisory authority over INS employees. Id.
§ 1103(a)(2)-(3). Pursuant to those statutory powers, the
Attorney General granted the BIA authority to issue preceden-
tial decisions binding on all IJs. See 8 C.F.R. § 1003.1(d)(1).
Rather than exercise the BIA’s power under 8 C.F.R.
§ 1003.1(d)(1), cf. Aguirre-Aguirre 526 U.S. at 425 (citing the
regulatory antecedent of § 1003.1(d)(1), 8 C.F.R. § 3.1(d)(1)
(1998)), however, a single BIA member deciding to stream-
line a case only exercises his or her power to decide if “[t]he
issues on appeal are squarely controlled by existing” prece-
dent or “are not so substantial that the case warrants the issu-
ance of a written opinion.” 8 C.F.R. § 1003.1(e)(4)(i).

   Under these circumstances, an IJ decision, although pre-
sented as the final agency determination to be reviewed in
federal court, is not legally relevant to any future decision-
making, including by the very IJ who issued it. See Lin v. U.S.
Dep’t of Justice, 416 F.3d 184, 190 (2d Cir. 2005) (“Absent
the power to issue binding decisions, IJs cannot, themselves,
be said to possess the requisite ability to issue, on behalf of
the Attorney General, a ‘rule’ carrying the force of law —

to persecutory acts. A-H- held that “[t]he plain meaning of the relevant
words in the statute is broad enough to encompass aid and support pro-
vided by a political leader to those who carry out the goals of his group,
including statements of incitement or encouragement and actions that
result in advancing the violent activities of the group.” Id. at 784. This pre-
cise holding of A-H- is not here relevant; the more general principles
enunciated in A-H concern personal culpability overall and are fully con-
sistent with our prior case law, as developed below.
                   MIRANDA ALVARADO v. GONZALES                       2907
because one of the hallmarks of a legal ‘rule’ is that it will,
in fact, apply equally in all cases of a similar kind.”).5 “[W]ere
we to accord Chevron deference to non-binding IJ statutory
interpretations, we could find ourselves in the impossible
position of having to uphold as reasonable on Tuesday one
construction that is completely antithetical to another con-
struction we had affirmed as reasonable the Monday before.
Such a scenario cannot be countenanced in a system of law.”
Id.; see also id. at 191 (“There is . . . no reason to believe that
an IJ’s summarily affirmed decision contains the sort of
authoritative and considered statutory construction that Chev-
ron deference was designed to honor.”).

   Given the features of the streamlining regime and its differ-
ences from the scheme given deference in Aguirre-Aguirre,
we conclude that Aguirre-Aguirre does not control the ques-
tion of Chevron’s applicability to a streamlined case. The Sec-
ond Circuit has reached the same conclusion, noting that “we
decline to extend Chevron deference to any statutory con-
struction of the INA set forth in a summarily affirmed IJ opin-
ion.” Id.; see also Ashton v. Gonzales, 431 F.3d 95, 97 (2d
Cir. 2005); cf. Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d
Cir. 2004) (“[D]eferring to the reasoning of an IJ from which
the BIA would be free to depart in other cases would seem
highly problematic.”).

   [4] In sum, we hold that Chevron deference does not apply
  5
   Inconsistent results can, however, implicate constitutional concerns.
See generally Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir. 2004)
(“The INS must give each asylum case individualized scrutiny, but it is a
foundation of the rule of law that similarly situated individuals be treated
similarly. . . . [W]e have previously noted inconsistent treatment of asylum
applicants. See Wang v. Ashcroft, 341 F.3d 1015, 1019 n. 2 (9th Cir. 2003)
(greeting with incredulity the INS’s assertion that a reviewing court need
not concern itself with the inconsistency [created] where the INS denied
asylum to a woman subjected to coercive population control methods, but
granted asylum to her husband on the basis of the woman’s experience).”).
2908               MIRANDA ALVARADO v. GONZALES
to an IJ’s statutory interpretation summarily affirmed by the
BIA.6

                                    II

                    The Persecutor Exception

   [5] Under the INA, any person who has “ordered, incited,
assisted, or otherwise participated in” persecution of any per-
son on account of a protected ground is ineligible for asylum
and withholding of removal. 8 U.S.C. §§ 1101(a)(42),
1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also 8 C.F.R.
§ 208.13(c)(2)(i)(E) (mandatory denials).7 The INA does not
define “persecution,” but our case law defines it as “the inflic-
tion of suffering or harm upon those who differ . . . in a way
regarded as offensive.” Fisher v. INS, 79 F.3d 955, 961 (9th
Cir. 1996) (en banc) (internal quotation marks and citation
omitted). Miranda challenges the denial of relief in his case
on two separate grounds: First, he argues that the IJ used the
wrong criteria to determine whether his role as a translator
during interrogations in which detainees were tortured consti-
tutes assistance in persecution. Second, he argues that even if
his translation work does amount to assistance, the persecu-
tion was not on account of political opinion. We address each
argument in turn.
  6
     We leave for another day the question of whether “individual IJ deci-
sions may be entitled to the lesser form of deference established under
Skidmore v. Swift & Co., 323 U.S. 134 (1944), to the extent that such deci-
sions possess ‘those factors which give [the agency’s interpretation] power
to persuade, if lacking power to control.’ Id. at 140.” Lin, 416 F.3d at 191
(noting but not deciding the question); see also Zhang v. Gonzales, 426
F.3d 540, 544 (2d Cir. 2005) (“An IJ’s interpretation of ambiguous provi-
sions of the INA is entitled no more deference than the inherent persua-
siveness of the IJ’s view commands.”). We need not decide whether
Skidmore deference applies to the IJ’s brief reasoning in this case. As will
appear, such deference would not affect our analysis.
   7
     Deferral of removal under the Convention Against Torture (CAT) is
not so precluded. See, e.g., Singh v. Gonzales, 417 F.3d 736, 738 n.1 (7th
Cir. 2005). Miranda, however, has not applied for CAT relief.
                MIRANDA ALVARADO v. GONZALES                  2909
A.   Assistance in persecution

   In the opinions that interpret and give shape to the
persecution-of-others exceptions under the INA, this court
and other circuit courts have turned for guidance to a Supreme
Court ruling interpreting a similarly-worded statute passed at
the close of World War II. See Fedorenko v. United States,
449 U.S. 490 (1981). Fedorenko involved denaturalization,
not asylum proceedings. Fedorenko had been granted dis-
placed person status after World War II. It was later discov-
ered that, while serving as a Russian soldier in 1941,
Fedorenko was captured by Germany and subsequently
worked as a prison guard at Treblinka, a Nazi death camp in
Poland. The government sought to strip him of citizenship and
expel him, relying on the persecutor exception to refugee sta-
tus for “individuals who had ‘assisted the enemy in persecut-
ing [civilians]’ ” contained in the Displaced Persons Act of
1948 (DPA), Pub. L. No. 80-774, 62 Stat. 1009 (1948).

   Fedorenko held that, under the terms of the DPA the kind
of acts Fedorenko perpetrated were central to its analysis. See
449 U.S. at 512 n.34 (“focusing on whether particular conduct
can be considered assisting in the persecution of civilians”).
In a somewhat cryptic footnote that has since become the
principal guide to interpreting persecutor exceptions gener-
ally, see, e.g., Singh v. Gonzales, 417 F.3d 736 (7th Cir.
2005), the Court stated:

        [A]n individual who did no more than cut the hair
     of female inmates before they were executed cannot
     be found to have assisted in the persecution of civil-
     ians. On the other hand, there can be no question that
     a guard who was issued a uniform and armed with
     a rifle and a pistol, who was paid a stipend and was
     regularly allowed to leave the concentration camp to
     visit a nearby village, and who admitted to shooting
     at escaping inmates on orders from the commandant
     of the camp, fits within the statutory language about
2910               MIRANDA ALVARADO v. GONZALES
      persons who assisted in the persecution of civilians.
      Other cases may present more difficult line-drawing
      problems but we need decide only this case.

449 U.S. at 512 n.34. Fedorenko thus indicated a continuum
of conduct against which an individual’s actions must be eval-
uated so as to determine personal culpability.

   Applying Fedorenko to the same statutory language here at
issue, we recently considered the persecutor exception to the
asylum and withholding of removal provisions. Vukmirovic v.
Ashcroft, 362 F.3d 1247 (9th Cir. 2004), held that an IJ failed
to conduct a sufficiently particularized evaluation to deter-
mine the petitioner’s responsibility for persecution committed
by other Bosnian Serbs. Id. at 1252. We emphasized two
requirements for establishing culpability under the persecutor
exception. First, relying on Laipenieks v. INS, 750 F.2d 1427
(9th Cir. 1985), which considered similar statutory language,
we stated that “individual accountability must be established.”
Vukmirovic, 362 F.3d at 1252.8 We went on, secondly, to
evaluate the surrounding circumstances, including whether
the alleged persecutor was acting in self-defense, to determine
whether the applicant had assisted or otherwise participated in
persecution. Id. at 1252-53. Vukmirovic’s petition for review
was granted because we determined that he did act in self-
defense and that, accordingly, his acts harmful to Croats did
not constitute persecution. Id. at 1253.

  Also informative is Hernandez v. Reno, 258 F.3d 806 (8th
Cir. 2001), which concerned a Guatemalan man forcibly
  8
   Laipenieks addressed former 8 U.S.C. § 1251(a)(19) and held that the
“ordered, incited, assisted, or otherwise participated in the persecution of
any person” standard “requires that . . . the evidence establish[ ] that the
individual in question personally ordered, incited, assisted, or otherwise
participated in the persecution of individuals.” 750 F.2d at 1431 (emphasis
added); see also id. at 1431-32 (“[A]ctive personal involvement in per-
secutorial acts needs to be demonstrated . . . . [P]roof of personal active
assistance or participation in persecutorial acts [is required].”).
                    MIRANDA ALVARADO v. GONZALES                        2911
recruited by guerrillas and ordered, under pain of death, to
shoot at peasants. Hernandez held that “[u]nder Fedorenko, a
court faced with difficult ‘line-drawing problems’ should
engage in a particularized evaluation in order to determine
whether an individual’s behavior was culpable to such a
degree that he could be fairly deemed to have assisted or par-
ticipated in persecution.” Id. at 813; see also Vukmirovic, 362
F.3d at 1252 (quoting from this passage and “agree[ing] with
the Eighth Circuit”); cf. In re A-H-, 23 I. & N. Dec. 774, 785
(A.G. 2005) (citing Hernandez with approval for the proposi-
tion that “[i]t is appropriate to look at the totality of the rele-
vant conduct in determining whether the bar to eligibility
applies.”).9 As in Fedorenko, the length of time over which
the person was involved in the acts, the kind of threats used
to compel assistance, and the efforts undertaken to escape (or
the lack thereof in Fedorenko’s case) were all significant,
according to the Hernandez court, in weighing individual cul-
pability. Id. at 813-14. But cf. Bah v. Ashcroft, 341 F.3d 348,
351 (5th Cir. 2003) (per curiam) (holding that “the alien’s
personal motivation is not relevant” where Bah joined an
  9
   The Eighth Circuit observed that:
         The facts here are very different from those in Fedorenko.
      Although Fedorenko was free to leave Treblinka from time to
      time, he never tried to escape. Hernandez was never given any
      leave, and he escaped at his first opportunity. Fedorenko served
      at Treblinka for over a year, but Hernandez spent only 20 days
      as a prisoner of ORPA. Unlike Fedorenko, Hernandez never
      received any payment or reward from ORPA. Hernandez risked
      his life by articulating his disagreement with ORPA’s violent tac-
      tics, by disobeying his commander’s orders to shoot directly at
      the villagers, and by fleeing from his captors into Mexico. While
      Fedorenko and his fellow Ukranians far outnumbered the Ger-
      mans at Treblinka, Hernandez and two other forced recruits were
      isolated within a group of fifty guerrillas. And significantly, Her-
      nandez himself revealed his involvement with ORPA to United
      States officials whereas Fedorenko omitted important information
      on his entry documents and covered up his connection with Tre-
      blinka.
Hernandez, 258 F.3d at 814.
2912               MIRANDA ALVARADO v. GONZALES
insurgent group in Sierra Leone under threat of death and
three times attempted to escape).10

   [6] Thus, determining whether a petitioner “assisted in per-
secution” requires a particularized evaluation of both personal
involvement and purposeful assistance in order to ascertain
culpability. See Vukmirovic, 362 F.3d at 1252; Hernandez,
258 F.3d at 813. This standard does not require actual
“trigger-pulling,” see In re A-H-, 23 I. & N. Dec. at 784 (stat-
ing that the persecutor bar “do[es] not require direct personal
involvement in the acts of persecution” (emphasis added)),
but “[m]ere acquiescence or membership in an organization,”
is insufficient to satisfy the persecutor exception. See Vuk-
mirovic, 362 F.3d at 1252 (internal quotation marks omitted);
see also Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir.
2004); Matter of Rodriguez-Majano, 19 I. & N. Dec. 811,
814-15 (BIA 1988) (“[M]ere membership in an organization,
even one which engages in persecution, is not sufficient to bar
one from relief, but only [sic] if one’s action or inaction fur-
  10
     Aside from Bah, courts interpreting the relevant INA provisions have
used caution in applying Fedorenko’s reading of the similarly-worded
DPA to mean that “an individual’s service as a concentration camp armed
guard — whether voluntary or involuntary — ma[kes] him ineligible [for
relief].” 449 U.S. at 512 (emphasis added). See Xie v. INS, 434 F.3d 136,
141, 144 (2d Cir. 2006) (concluding that “we find it unlikely that the
phrase ‘assisted in persecution’ implicitly includes a voluntariness require-
ment in one statute but not the other” but assessing the petitioner’s volun-
tariness nonetheless and “emphatically” leaving open the possibility that
redemptive behavior may be relevant to “whether an applicant has assisted
in persecution”); Hernandez, 258 F.3d at 814 (faulting the BIA for failing
to “consider Hernandez’s uncontroverted testimony that his involvement
with ORPA was at all times involuntary and compelled by threats of death
and that he shared no persecutory motives with the guerrillas”). As will
appear, this case does not require us to decide whether even actions that
result from direct, immediate, and extreme “physical[ ] or psychologi-
cal[ ]” compulsion, see Xie, 434 F.3d at 143, or are accompanied by fre-
quent redemptive behavior such as fostering escape attempts, can be
sufficiently culpable to preclude asylum and withholding of removal eligi-
bility.
                   MIRANDA ALVARADO v. GONZALES                        2913
thers that persecution in some way.”).11 Although such mem-
bership could signal support for the persecutorial aims of
others, it does not suffice, standing alone, to establish the req-
uisite personal assistance or participation in persecutorial acts.

  [7] This most basic requirement of personal involvement is
met here. Miranda’s actions went beyond mere membership,
as he was undisputedly a regular part of interrogation teams
who questioned Shining Path members. He was present and
active during the alleged persecution. See Xie v. INS, 434 F.3d
136, 143 (2d Cir. 2006) (distinguishing between active and
passive conduct).
  11
     Laipenieks, which emphasized the need for precision along this range
of personal involvement, has on occasion been read to require a persecutor
personally to inflict injury, rather than to behave in some capacity that
made it possible for others to engage in brutal acts. See, e.g, United States
v. Reimer, 356 F.3d 456, 462 n.6 (2d Cir. 2004) (collecting cases on the
two sides of this supposed divide); Hammer v. INS, 195 F.3d 836, 844 (6th
Cir. 1999) (“To the extent that those cases [including Laipenieks] would
require the government to prove the alien’s personal participation or active
assistance in specific acts of brutality . . . we decline to follow them.”);
Schellong v. INS, 805 F.2d 655, 661 (7th Cir. 1986) (“Insofar as these
cases [including Laipenieks] hold that personal involvement in atrocities
is necessary to have assisted in persecution . . . they conflict with
Fedorenko.”). In Hammer, “[t]he BIA found that [the petitioner] served
willingly as an armed SS concentration camp guard,” 195 F.3d at 844, and
in Schellong the petitioner did “not dispute that he served as a concentra-
tion camp guard at Sachsenburg and trained and supervised guards at
Dachau.” 805 F.2d at 661; see also Kulle v. INS, 825 F.2d 1188, 1192 (7th
Cir. 1987) (indicating that the petitioner was armed although “Kulle insists
he did not have authority to shoot prisoners attempting escape”). The prin-
ciple Laipenieks established with respect to personal involvement in perse-
cution, however, was simply that Fedorenko, the statutory language, and
its legislative history require more than “[m]ere acquiescence or member-
ship in a [persecutory] organization.” 750 F.2d at 1431-32. Beyond that,
Laipenieks made a fact-specific determination that “the government’s evi-
dence failed to establish deportability,” id. at 1437, and did not impose a
rule that personal infliction of harm is necessary to establish assistance or
participation in persecution directly perpetrated by others. Nothing in
Laipenieks, consequently, is inconsistent with the results reached in cases
such as Hammer, Schellong, and Kulle.
2914            MIRANDA ALVARADO v. GONZALES
   Fedorenko’s “continuum of conduct” footnote guides us in
the next step of the analysis. Whether Miranda’s assistance
was material is measured by examining the degree of relation
his acts had to the persecution itself: How instrumental to the
persecutory end were those acts? Did the acts further the per-
secution, or were they tangential to it? Cutting the hair of a
death camp prisoner bound for execution is a ghastly act.
Nevertheless, the hair cutting was in no way essential to the
ensuing execution, or even in furtherance of it; nor would cut-
ting the hair of prisoners legitimately confined amount to per-
secution, standing alone. Thus, the hair cutters did not “assist
or otherwise participate in” persecution.

   On the other hand, the camp guard who personally shoots
at escapees participates directly in a persecutory act: Had he
not shot, that particular act would not have happened. More
to the present point, guards are essential to the orderly func-
tioning of death camps, even when they do not shoot anyone.
The continuum, as these examples show and as the Court in
Fedorenko noted, is not an exact or absolute one; difficult
line-drawing questions will always persist.

   [8] In this case, the IJ stated that Miranda “was a necessary
part of the interrogation. Without his services as a Quechua
interpreter, the interrogations could not proceed. With his ser-
vices, they did proceed.” Though conclusory, the IJ’s analysis
goes to the heart of the Fedorenko continuum: Miranda was
not just engaged in acts peripheral to persecution. Rather, he
performed an integral role in facilitating the persecution. In
his role as interpreter, Miranda materially aided the persecu-
tion process, by translating the questions and answers that
were interspersed with electric shock torture. Without the
translation, there would have been no reason for the torture to
occur as it did, as its point was to elicit information. Thus,
Miranda was not simply a bystander with regard to the direct
acts of persecution. His assistance and participation were in
furtherance of the particular form of persecution that
occurred. See id. (distinguishing between conduct that “had
                MIRANDA ALVARADO v. GONZALES                2915
direct consequences for the victims” and conduct that “was
tangential to the acts of oppression”).

   Moreover, Miranda makes no colorable claim that his
actions were motivated by self-defense or similar extenuating
circumstances, as in Vukmirovic. The IJ properly focused on
the frequency and length of time that Miranda worked as a
translator, finding that Miranda translated in interrogations
where torture took place for six to seven years, two to three
times per month. The IJ also considered that Miranda did not
seek to resign for six years, and that there is no evidence in
the record that dire physical consequences — as distinct from
economic and career consequences — would have resulted
from simply refusing to continue in the Civil Guard. See id.
(“[N]othing in the record indicates that Xie did not have the
ability to quit his job as a driver at any time in order to avoid
the persecution of women that was part of that job. His reason
for not doing so appears to have been the loss of wages he
would incur. Xie has never suggested that he was physically
or psychologically coerced into working for the county as a
driver.” (citation omitted)); Singh, 417 F.3d at 740 (emphasiz-
ing “the repetition of the conduct over an extended period”
and noting that during Singh’s “lengthy term of employment,
he refused to quit the police force due to his need for a steady
paycheck and his apparent desire to avoid searching for work
with a different employer”). The IJ noted that Miranda had
qualms about his participation in the interrogations, and that
he at times urged the torturers to lessen the amount of electric
current applied. But Miranda did so, by his own account, only
when the torture became so extreme that it became difficult
for the victims to speak. Moreover, Miranda made little effort
to avoid assisting in the interrogations. Cf. Ofosu v. McElroy,
98 F.3d 694, 701 (2d Cir. 1996) (commenting that potentially
relevant factors are whether a petitioner “rejected the repres-
sive activities in which he was involved, or put himself at risk
in order to protect those who were persecuted”); see also Xie,
434 F.3d at 144 (“[U]nlike Ofosu, Xie offered no evidence
that he was unaware of the repressive nature of the duties he
2916            MIRANDA ALVARADO v. GONZALES
undertook as part of his voluntary employment. Xie assisted
in persecution until there were favorable circumstances for
him to cease doing so.”). Consequently, were we to assume
that, as Hernandez posits, there are, after Fedorenko, some
extreme situations so coercive that, on a totality of circum-
stances analysis, an individual cannot be said to have “as-
sisted or otherwise participated in” persecution he was forced
to inflict, we would conclude that this case does not present
such an extraordinary situation.

   [9] The record before us presents a case perhaps at the mar-
gin of the culpability required under the statute. Miranda was
not in a position of authority with regard to planning or incit-
ing the interrogations; he did not directly apply the electric
shocks or beatings; he did not supply the physical compulsion
that allowed the torture to occur, as do armed guards; and he
did not, forcibly or otherwise, arrest the victims or bring them
to the place of torture. Nonetheless, as the IJ found, his ser-
vices were integral to the particular form of persecution that
occurred. We conclude that the IJ’s determination that the
necessary elements of Miranda’s personal assistance in acts
that furthered the persecution of others have been established
is supported by substantial evidence. Miranda materially
assisted the persecution of suspected Shining Path members
and has presented no legally cognizable justification for his
complicity.

B.     On account of political opinion

   As the IJ applied the correct, established legal standards
with regard to this second issue of nexus between the persecu-
tion and a protected ground by inquiring into whether “the
detainees were being interrogated for crimes or for reasons
other than their connection with the [highly ideological] Shin-
ing Path,” we proceed to review his factual findings for sub-
stantial evidence. See Mohammed v. Gonzales, 400 F.3d 785,
791 (9th Cir. 2005).
                 MIRANDA ALVARADO v. GONZALES                  2917
   Evidence presented to the IJ indicated that Miranda assisted
in the persecution of others on account of their political opin-
ion. Specifically, Miranda testified that those interrogated and
tortured were members or suspected members of the Shining
Path; that “interrogation” was different from questioning a
possible suspect; that “[i]nterrogating is asking people where
is a certain group, what do they do, investigating their bases,
finding out who their boss is, where he lives, who he lives
with;” and that of those interrogated “[a]ll of them were only
Shining Path.”12 Because these statements were sufficient to
raise the inference that individuals were selected for interro-
gation on the basis of their affiliation or suspected affiliation
with an opposition group, not because they themselves were
suspected of criminal activity, the burden of proof became
Miranda’s to show by a preponderance of the evidence that
the persecution was not on account of political opinion. See
8 C.F.R. §§ 208.13(c)(2)(ii) (stating with respect to asylum
that: “If the evidence indicates that one of the above grounds
apply [sic] to the applicant, he or she shall have the burden
of proving by a preponderance of the evidence that he or she
did not so act.”); 208.16(d)(2) (“If the evidence indicates the
applicability of one or more of the grounds for denial of with-
holding enumerated in the Act, the applicant shall have the
burden of proving by a preponderance of the evidence that
such grounds do not apply.”).

   Our case law suggests at least two ways Miranda could
have met his burden of disproving that he assisted in the per-
secution of others on account of their political opinion. First,
Miranda could have presented evidence that these interroga-
tions were part of legitimate criminal prosecutions. By “legiti-
mate,” our case law refers to a prosecution that was not
tainted, even in part, by impermissible motives corresponding
to grounds protected under the INA. See Borja v. INS, 175
F.3d 732, 736 (9th Cir. 1999) (en banc) (holding that persecu-
  12
    The last statement was made in reply to the question “How many of
those interrogations were interrogations of suspected terrorists?”
2918            MIRANDA ALVARADO v. GONZALES
tion is on account of a protected ground if it is “motivated, at
least in part, by an actual or implied protected ground” (inter-
nal quotation marks and citation omitted)).

   [10] We conclude that substantial evidence supports the
IJ’s determination that “there is no indication in the record
that the detainees were being interrogated for crimes or for
reasons other than their connection with the Shining Path.”
Miranda did not establish that being a member of the Shining
Path was a criminal offense in Peru, or that these actual or
suspected members were under investigation for carrying out
specific terrorist acts or were subsequently prosecuted for
their crimes. We have repeatedly held that persecution “in the
absence of any legitimate criminal prosecution, conducted at
least in part on account of political opinion” constitutes perse-
cution on account of political opinion, even if the persecution
served intelligence-gathering purposes. See Ratnam v. INS,
154 F.3d 990, 996 (9th Cir. 1998); see also Ndom v. Ashcroft,
384 F.3d 743, 755 (9th Cir. 2004); Blanco-Lopez v. INS, 858
F.2d 531, 534 (9th Cir. 1988). Miranda’s law enforcement
contention therefore fails.

   [11] The second way Miranda attempts to disprove his
assistance of persecution on account of political opinion is to
argue that the interrogations and torture were part of general-
ized civil discord, rather than politically-motivated persecu-
tion. Cf. Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.
2000) (“[Petitioners] did not establish that the attack was any-
thing more than an act of random violence during a period of
significant strife.”). The BIA in Matter of Fuentes, 19 I. & N.
Dec. 658 (BIA 1988), held that the dangers faced by a Salva-
doran policeman from guerrillas during that country’s politi-
cal struggles did not constitute persecution on account of
political opinion: “Such dangers are perils arising from the
nature of their employment and domestic unrest rather than
‘on account of’ immutable characteristics or beliefs within the
scope of sections 101(a)(42)(A) or 243(h) of the [INA].” Id.
at 661; see also Cruz-Navarro, 232 F.3d at 1028-29. The con-
                MIRANDA ALVARADO v. GONZALES                2919
verse is also true: Dangers faced by those associated with or
suspected of being associated with an armed group ideologi-
cally opposed to the government may reflect the general
unrest precipitated by the conflict rather than persecution
premised on political opinion. See Rodriguez-Majano, 19 I. &
N. Dec. at 815-16 (“In analyzing a claim of persecution in the
context of a civil war, one must examine the motivation of the
group threatening harm . . . . Harm resulting from generalized
civil strife is not persecution. Martinez-Romero v. INS, 692
F.2d 595 (9th Cir. 1982) . . . . [T]hose who inflict such harm
are not engaging in persecution.”). Thus, injury inflicted by
opposing political or other groups on each other during a civil
conflict will not necessarily equate to persecution on account
of one of the INA’s protected grounds.

   [12] At the same time, “wide-spread violence and detention
cannot override record evidence that persecution occurred at
least in part as a result of an applicant’s protected status.”
Ndom, 384 F.3d at 752. Our asylum cases have therefore not
hesitated to impute motivation on account of political opinion
in factually-compelling circumstances where someone fight-
ing on one side of a politically-based civil war persecutes
someone affiliated with the group fighting on the other side.
See, e.g., Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999)
(en banc) (“Briones’s activity as a confidential informer who
sided with the Phillipine military in a conflict that was politi-
cal at its core certainly would be perceived as a political act
by the group informed upon.”); Gomez-Saballos v. INS, 79
F.3d 912, 917 (9th Cir. 1996) (“To those imprisoned, [the
petitioner] clearly represented the person in charge of their
political incarceration. The prisoners represented an organized
political force in opposition to the political views of the
Sandinistas. The death threats to him by those imprisoned
cannot be separated from his political position and the obvi-
ous perception to the prisoners that, as the person in charge
of their custody, he adhered to political beliefs in opposition
to their own.”). Vukmirovic emphasized that it is untenable to
impose a blanket exclusion on asylum-seekers who come
2920               MIRANDA ALVARADO v. GONZALES
from places beset by civil war and are affiliated in some
respect with one side or the other in the conflict: “[T]he BIA
itself noted in In re Rodriguez-Majano, 19 I. & N. Dec. 811
(BIA 1988), [that] under such an expansive interpretation,
‘members of armed opposition groups throughout the world
would be barred from seeking haven in this country.’ Id. at
816.” 362 F.3d at 1253. Conversely, an asylum-seeker is not
insulated from application of the persecutor exception simply
because his acts sought to further the interests of one side of
a civil conflict. The connection between that conflict and the
asserted persecution must be analyzed carefully.

   [13] On this record, Miranda has not established that the
particular persecution in which he was involved — interroga-
tions involving torture — was in direct opposition to acts of
terrorism or civil strife. As explained by the BIA in
Rodriguez-Majano, “harm which may result incidentally from
behavior directed at another goal, the overthrow of a govern-
ment or, alternatively, the defense of that government against
an opponent, is not persecution . . . . We would include in this
list [ ] engaging in military actions, the attacking of garrisons,
the burning of cars, and the destruction of other property as
actions outside the limits of the term ‘persecution.’ ” 19 I. &
N. Dec. at 815 (emphasis added)). Unlike the sort of on-the-
battlefield conflict discussed in Rodriguez-Majano, torturing
individuals selected for their affiliation with an opposition
group is not inherent in armed conflict,13 any more than is
   13
      Miranda argues that “[i]n the same way that this country has detained
and interrogated suspected Al Quaeda sympathizers, Peru could not afford
to allow Shining Path members to go free irrespective of the fact that there
were no particularized charges of crimes.” This contention begs the ques-
tion of the persecution at issue, as it avoids addressing the torture Miranda
assisted. Miranda does not advance the argument that torture becomes
lawful in warfare or civil conflict, and there is voluminous authority to the
contrary, notably the Convention Against Torture itself, which Peru signed
in 1985 and ratified in 1988. See Office of the United Nations High
Comm’r for Human Rights, Status of ratification of the Convention
against Torture (Nov. 2, 2004), available at http://www.ohchr.org/english/
                   MIRANDA ALVARADO v. GONZALES                         2921
“ethnic cleansing.” Cf. Knezevic v. Ashcroft, 367 F.3d 1206,
1211-12 (9th Cir. 2004) (explaining that the IJ “miss[ed] the
critical distinction between persons displaced by the inevita-
ble ravages of war . . . and those fleeing from hostile forces
motivated by a desire to kill each and every member of that
group.”). Where, as the record indicates happened here, indi-
viduals are singled out at least in part for their political affilia-
tion, rather than for their own actions; detained and thereby
removed from active participation in civil strife; and tortured
to obtain information about the opposition group, the sur-
rounding civil strife does not undermine the conclusion that
the torture is persecution on account of political opinion. See
Ndom, 384 F.3d at 755; Ratnam, 154 F.3d at 996.

   [14] In sum, while the record makes clear that the Shining
Path was a terrorist organization, Miranda’s testimony does
not demonstrate that the particular Shining Path adherents
who were interrogated and tortured were criminal suspects or
armed guerrillas actively engaged in military activity, rather
than individuals known to sympathize with the Shining Path’s
political goals. Substantial evidence therefore supports the
IJ’s determination that Miranda did not meet his burden of
establishing that he did not assist in persecution of others on
account of their political opinion.

                               Conclusion

   For the reasons given, Miranda’s services as an interpreter
amounted to assistance in persecution. His acts were material
to the interrogations and their accompanying torture, and his

law/cat-ratify.htm. The Convention’s part 1, article 2 states in relevant
part: “No exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture.” Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened
for signature Dec. 10, 1984, pt. 1, art. 2, 1465 U.N.T.S. 85, available at
http://www.unhchr.ch/html/menu3/b/h_cat39.htm.
2922            MIRANDA ALVARADO v. GONZALES
assistance was personally culpable — that is, engaged in for
reasons other than direct self-defense and unaccompanied by
meaningful attempts at noncompliance or escape. Together,
these elements establish that Miranda is covered by the perse-
cutor exception. As Miranda did not rebut, by a preponder-
ance of the evidence, the indication that his persecution of
suspected Shining Path members was on account of political
opinion, we deny the petition for review.

  PETITION FOR REVIEW DENIED.



LEAVY, Circuit Judge, concurring:

   I concur in Part II of the opinion. In this relatively straight-
forward case, the IJ determined that Miranda had “assisted in
the persecution of others . . . on account of their political
opinion” under 8 U.S.C. § 1101(a)(42), and was thus ineligi-
ble for asylum and withholding of removal under 8 U.S.C.
§§ 1158(b)(2)(A)(i) and 1231 (b)(3)(B)(i). The BIA “stream-
lined” the case, affirming the result without an opinion. In
such a case, we review the IJ’s factual determinations for sub-
stantial evidence and we review de novo the IJ’s legal conclu-
sions. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.
2004). I concur in the holding that substantial evidence sup-
ports the IJ’s factual determination that Miranda persecuted
others on account of their political opinion under the our
interpretation of the applicable statutes.

   The discussion in Part I regarding Chevron deference is
irrelevant to the outcome of this case. Whether we defer or
not to the IJ’s legal conclusion has no effect on the outcome
for Miranda — either way, he does not prevail. We should
reserve the discussion on Chevron deference to a case where
the resolution of this issue is necessary to the decision.
