Israel Osorio Valle v. Jefferson Sessions

FILED NOT FOR PUBLICATION JUN 21 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ISRAEL SALOMON OSORIO VALLE, No. 16-71662 Petitioner, Agency No. A029-163-962 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 12, 2018 Pasadena, California Before: SCHROEDER and M. SMITH, Circuit Judges, and CHEN,** District Judge. Israel Salomon Osorio Valle (“Osorio Valle”) petitions for review of the denial by the Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) (collectively, the “Agency”) of his application for special rule cancellation of * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). See NACARA, Pub. L. No. 105–100, § 203, 111 Stat. 2160, 2196–2200 (1997). The Agency denied his application upon a determination that he had engaged in persecution. See 8 U.S.C. § 1231(b)(3)(B)(i); 8 C.F.R. § 1240.66(a). He has been ably represented through our Court’s pro bono representation project. Under 8 C.F.R. § 1240.8(d), when the “evidence indicates” that the persecutor bar “may apply,” the burden shifts to the alien to establish that it does not apply. Osorio Valle contends that his mere membership in an organization that has engaged in persecution is not enough to establish that the persecutor bar may apply. Osorio Valle was a member of three organizations that committed severe human rights abuses in El Salvador—the First Brigade, the Atlacatl Battalion, and the National Police. The evidence shows not only that Osorio Valle was a soldier in the Atlacatl Battalion from July to November 1981, but that he was with the battalion when it engaged in combat activities against guerrillas and civilians that included human rights atrocities. According to a report submitted by the government and prepared by the U.S. Citizenship and Immigration Services Resource Information Center (“CIS RIC”), “[t]he highest levels of rights violations 2 during the [Salvadoran] war occurred during the initial years of the 1980s.” “During the war the Salvadoran military operated according to a counterinsurgency strategy of terrorizing the civilian population to keep them from supporting guerrillas. Among the army tactics were ‘zone killing’ and ‘sweeps,’ operations which caused the deaths of many civilians who, during the period 1980-1983, were dying by the thousands annually at the hands of the military.” Osorio Valle’s battalion “was the most notorious when it came to human rights violations,” providing the “main thrust of the military’s counterinsurgency efforts against the . . . guerrillas.” The battalion “was responsible for . . . numerous . . . massacres in various locales during the first half of the 1980s.” The CIS RIC report concludes that even “a regular soldier in the Atlacatl Battalion [such as Osorio Valle] ...

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