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BIA Says Noncitizens Who Assist in Persecution Need Not Have a Persecutory Motive to Be Subject to the Persecutor Bar

In a precedent decision issued today, the BIA held that the persecutor bar in INA §241(b)(3)(B)(i) applies to a noncitizen who assists or otherwise participates in the persecution of an individual because of that person’s race, religion, nationality, membership in a particular social group, or political opinion, without regard to the noncitizen’s personal motivation for assisting or participating in the persecution. The court found that the persecutor bar applied to the Salvadoran respondent because, regardless of his own motives, he assisted in the persecution of an individual because of the individual’s political opinion. Accordingly, the court concluded that the respondent failed to establish that he was eligible for special rule cancellation of removal under NACARA.

Applying for NACARA?

  1.  The BIA ruled that the 10 years of continuous physical presence required by 8 CFR §1240.66(c)(2) for an individual seeking special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) should be measured from the individual’s most recently incurred ground of removal, at least where that ground is among those listed in 8 CFR §1240.66(c)(1).

CA9 Finds No Abandonment of AOS Where Petitioner Departed without Advance Parole

Over dissent, the court found that where Petitioner unintentionally drove into Mexico without advance parole, he did not abandon his NACARA adjustment of status because 8 CFR §245.13(k)(1) applies only to “desired” departures.

CA4 Says Physical Presence at the Border Is Not a Necessary Condition for Smuggling

The court upheld the IJ’s finding that Petitioners lacked good moral character for purposes of NACARA where they violated INA §212(a)(6)(E) by sending money to their children to assist them in entering the U.S. illegally.

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