Background
Jose Margarito Perez-Castillo, a Salvadoran citizen, sought special rule cancellation of removal under NACARA. He had entered the United States after compulsory military service in El Salvador and testified that he served as a radio operator in the Fourth Infantry Brigade, occasionally on loan to the Atonal Battalion, an elite counterinsurgency unit associated with serious human-rights abuses during the Salvadoran civil war.
The immigration judge found Perez not credible based on material contradictions about his military assignment, combat participation, use of a weapon, and knowledge of abuses. The judge concluded that evidence of his Atonal Battalion ties raised the persecutor bar and denied relief. The BIA affirmed, holding that Perez had not rebutted the bar and that, under the Attorney General’s decision in Matter of Negusie, duress was unavailable as a defense.
The Court’s Holding
The Ninth Circuit denied the petition for review. It held that the INA’s persecutor bar contains no implied duress defense, so a noncitizen may have “assisted” in persecution even if the contribution was involuntary. The court reached that conclusion through its independent interpretation of the statute following Loper Bright, giving the Attorney General’s contrary-to-prior-agency-position interpretation only limited persuasive weight.
The court reasoned that the ordinary meanings of “assisted” and “otherwise participated” encompass conduct that may be involuntary, and that Congress’s use of voluntariness language elsewhere in the INA—but not in the persecutor bar—confirmed that omission was intentional. International refugee-law materials supported the possibility and policy appeal of a duress defense, the court said, but did not establish that Congress enacted one. Substantial evidence supported application of the bar because Perez did not challenge the adverse credibility determination and failed to rebut the inference raised by the evidence.
Key Takeaways
- The INA persecutor bar has no implied duress defense.
- After Loper Bright, courts independently interpret the statute and may give agency interpretations only persuasive weight.
- Even without a duress defense, immigration judges must make a sufficiently particularized assessment of a person’s responsibility for persecution.
Why It Matters
The decision makes duress unavailable to applicants seeking NACARA relief and applies the same statutory interpretation to closely related persecutor-bar provisions governing other immigration protections. The practical focus in future cases remains whether the applicant’s particular conduct constitutes active assistance or participation in persecution, rather than whether that conduct was compelled.