VIDES CASANOVA

Cite as 

 (BIA 2015)                               Interim Decision #3827




    Matter of Carlos Eugenio VIDES CASANOVA, Respondent
                             Decided March 11, 2015
                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals


  The respondent is removable under section 237(a)(4)(D) of the Immigration and
Nationality Act, 

(a)(4)(D) (2012), where the totality of the record
supported the conclusion that, through his “command responsibility” in his role as
Director of the Salvadoran National Guard and as Minister of Defense of El Salvador, he
participated in the commission of particular acts of torture and extrajudicial killing of
civilians in El Salvador, in that they took place while he was in command, he was aware
of these abuses during or after the fact, and through both his personal interference with
investigations and his inaction, he did not hold the perpetrators accountable.

FOR RESPONDENT: Diego Handel, Esquire, Daytona Beach, FL
FOR THE DEPARTMENT OF HOMELAND SECURITY: James E.M. Craig, Assistant
Chief Counsel; David A. Landau, Associate Legal Advisor
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MULLANE, Board Member:


   In a decision dated August 16, 2012, an Immigration Judge found the
respondent removable under section 237(a)(4)(D) of the Immigration and
Nationality Act, 

(a)(4)(D) (2012), pretermitted his
application for cancellation of removal under section 240A(a) of the Act,
8 U.S.C. § 1229b(a) (2012), and ordered him removed from the United
States.1 The respondent appeals that decision. For the reasons set forth
below, the appeal will be dismissed.

             I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of El Salvador. During the period
1979 to 1989, he served as the Director of the Salvadoran National Guard

1
   The Immigration Judge’s interim decision dated February 22, 2012, includes his
factual findings and legal conclusions concerning the charges of removal. He
incorporated his interim decision by reference in his August 16, 2012, decision, which
denied the respondent’s motion to terminate on particular grounds and pretermitted the
application for relief.


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and then as the Minister of Defense. He entered the United States with an
immigrant visa on or about August 21, 1989. In October 2009, the
Department of Homeland Security (“DHS”) issued a Notice to Appear
(Form I-862), alleging that the respondent was responsible for assisting or
otherwise participating in acts of torture in El Salvador while in his
positions of military leadership and charging him with removability under
section 237(a)(4)(D) of the Act, as an alien described in section
212(a)(3)(E)(iii)(I) of the Act, 

(a)(3)(E)(iii)(I) (2006). In
October 2010, the DHS lodged an additional charge under section
237(a)(4)(D), alleging that during the same period, the respondent assisted
or otherwise participated in the commission of extrajudicial killings, as
described in section 212(a)(3)(E)(iii)(II) of the Act.2

                                  A. Background

   On October 17, 1979, the respondent became the Director of the
Salvadoran National Guard.3 He was promoted to Minister of Defense in
April 1983. From 1979 to 1992, and thus during his tenure in both

2
  Section 237(a)(4)(D) of the Act renders deportable any alien “described in” section
212(a)(3)(E)(iii), which provides as follows:

       Commission of Acts of Torture or Extrajudicial Killings
       Any alien who, outside the United States, has committed, ordered, incited,
     assisted, or otherwise participated in the commission of—
         (I) any act of torture, as defined in section 2340 of title 18, United States
       Code; or
         (II) under color of law of any foreign nation, any extrajudicial killing, as
       defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C.
       1350 note), is inadmissible.

Congress added these provisions to the Act in 2004, making them expressly retroactive to
encompass acts “committed before, on, or after the date of enactment.” Intelligence
Reform and Terrorism Prevention Act of 2004, 

(a)−(c), 

, 3740 (“IRTPA”); see also S. Rep. No. 108-209, at 11−12 (2003), 

, at *11−12 (relating to the proposed Anti-Atrocity Alien Deportation Act of
2003, S.710, 108th Cong. (2003), whose language was incorporated into the IRTPA).
The purpose in enacting these provisions was to “close loopholes in U.S. immigration
laws that have allowed aliens who have committed serious forms of human rights abuses
abroad to enter and remain in the country.” Matter of D-R-, 

 (BIA
2011) (quoting S. Rep. No. 108-209, at 1–2) (internal quotation mark omitted).
3
   The National Guard of El Salvador was generally grouped with the National Police
and Treasury Police under the category of Salvadoran “Security Forces.” The “Armed
Forces” of El Salvador included the Army, Navy, and Air Force.


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positions, El Salvador was in the midst of a bloody civil war between the
Salvadoran Government and guerilla forces.
    A military dictatorship governed El Salvador beginning in the 1930s,
but opposition to the Government was steadily increasing, particularly after
the military annulled the 1972 presidential elections. A military coup in
October 1979 resulted in the creation of a civilian-military junta with a
civilian President and some attempts at reform, but those efforts were
short-lived. A new constitution was drafted in 1983, and José Napoleon
Duarte was elected President in 1984. Despite these political changes, the
military retained significant power in the Government of El Salvador.
    In 1980, opposition groups coalesced to form the Frenté Farabundo
Martí para la Liberación Nacional (“FMLN”). In reaction to the resistance,
both the Armed Forces and Security Forces began a campaign of
repression, resulting in mass killings and torture of civilians who were
believed to be supporting the rebels. “Death squads,” often operating as
extensions of the Armed Forces and Security Forces, were active
throughout the war. The intensity of violence and number of human rights
abuses fluctuated over the course of the war; the period between 1980 and
1981 was one of the most violent. In total, approximately 70,000 civilians
were killed during the war.
    The United States viewed the conflict in El Salvador as a fight against
potential communist influence in the Western Hemisphere. Consequently,
the United States sent military advisors and personnel, equipment, and
funding in support of the Salvadoran Government. At the same time,
however, United States Government officials consistently expressed
concern about reports of human rights violations committed by the Armed
Forces and Security Forces.
    In 1981, the United States Congress voted to require annual certification
by the Salvadoran Government that it was making significant efforts to
comply with international human rights standards. In October 1983,
Secretary of State George Schultz traveled to El Salvador to meet with the
respondent in his role as Minister of Defense, in part to discuss human
rights abuses, including particular cases and individuals. Two months later,
Vice President Bush visited El Salvador and indicated that the United
States would end its military assistance unless the Salvadoran Government
took concrete measures to curb human rights abuses.
    The number of human rights abuses decreased significantly after Vice
President Bush’s visit. However, the improvement was not sustained, and
by 1986 human rights violations were again on the rise. In 1988, President
Bush sent Vice President Quayle to El Salvador to again encourage
improvements in the human rights situation, and to urge that certain officers
be removed from the country because of their involvement in human rights

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abuses. In 1989, the United States temporarily ceased providing aid to the
Salvadoran Government.
    Peace accords between the Government and the FMLN, brokered by the
United Nations, were signed on January 16, 1992. After the war, the
United Nations created the Commission on the Truth for El Salvador
(“Truth Commission”) to investigate “serious acts of violence” committed
during the war. Commission on the Truth for El Salvador, From Madness
to Hope: The 12-Year War in El Salvador, at 18, U.N. Doc. S/25500
(Mar. 15, 1993), available at http://www.usip.org/sites/default/files/file
/ElSalvador-Report.pdf. The Truth Commission received more than 22,000
complaints of flagrant human rights violations. Id. at 43. It concluded that
“there was a succession of indiscriminate attacks on the non-combatant
civilian population and also collective summary executions, particularly
against the rural population.” Id. at 27. Individuals who gave testimony to
the Commission attributed over 85 percent of cases to the Armed and
Security Forces and the associated death squads, while the FMLN was
named in only about 5 percent of all complaints. Id. at 43.

                      B. Immigration Court Proceedings

    The DHS charged that the respondent is removable as an alien described
in both sections 212(a)(3)(E)(iii)(I) and (II) of the Act, because he assisted
or otherwise participated in acts of torture and extrajudicial killings in his
roles as military commander between 1979 and 1989.
    During the removal hearing, which lasted 7 days, the DHS presented
testimony from Ambassador Robert White, U.S. Ambassador to
El Salvador from February 1980 to February 1981; Mr. Pedro Daniel
Alvarado (“Mr. Alvarado”), a Salvadoran torture survivor; Dr. Juan
Romagoza Arce (“Dr. Romagoza”), also a Salvadoran torture survivor; and
Dr. Terry Lynn Karl, Ph.D., Professor of Political Science at Stanford
University. The Immigration Judge qualified Dr. Karl as an expert witness
on the civil war in El Salvador, the response to human rights abuses by the
Salvadoran Government and the Armed Forces, the political situation
during and leading up to the civil war, and the structure and organization of
the Salvadoran military.
    The DHS also submitted numerous documents, including the Truth
Commission Report, written reports from Professor Karl and others
concerning El Salvador’s civil war, and United States Department of State
cables and memoranda from the period between 1979 and 1989.
    The respondent testified on his own behalf and presented testimony
from Ambassador David Passage, U.S. Deputy Chief of Mission to
El Salvador from June 1984 to June 1986, and Ambassador Edwin Corr,

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U.S. Ambassador to El Salvador from 1985 to 1988. The Immigration
Judge qualified Ambassador Corr as an expert witness on the Salvadoran
civil war, counterinsurgency and terrorism, and the Salvadoran military and
Government during the time that he served in El Salvador. The respondent
also submitted letters and awards he received from United States
Government officials.
    The Immigration Judge concluded that the respondent was removable as
charged. He found the testimony of Mr. Alvarado and Dr. Romagoza to be
credible and concluded that the respondent assisted or otherwise
participated in the torture of both men. He further found that the
respondent assisted or otherwise participated in acts of torture “generally”
during the period between 1979 and 1989.
    The Immigration Judge also concluded that the respondent assisted or
otherwise participated in six well-known and documented instances of
extrajudicial killing. He found that the respondent’s failure to investigate
the killings after the fact, to cooperate with the investigations (which he
impeded), and to ultimately hold the accused perpetrators accountable all
amounted to assistance or participation in the killings. According to the
Immigration Judge, there was clear and convincing evidence that, apart
from these particular events, the respondent participated in extrajudicial
killing “generally” during the period between 1979 and 1989.

                               II. ANALYSIS
                            A. Standard of Review

   We review the Immigration Judge’s findings of fact, including the
determination of credibility, under the “clearly erroneous” standard.

(d)(3)(i) (2014). We review de novo questions of law,
discretion, and judgment, and all other issues, including whether the parties
have met the relevant burden of proof. 

(d)(3)(ii).
   An Immigration Judge’s findings concerning the likelihood of future
events are factual determinations that we review for clear error. Zhou Hua
Zhu v. U.S. Att’y Gen., 

 (11th Cir. 2013). Inferences
from direct and circumstantial evidence are also reviewed for clear error.
Matter of D-R-, 

 (BIA 2011). Finally, the
Immigration Judge’s decision to credit the plausible testimony of one
witness over that of another witness is reviewed for clear error. See id.;
see also Anderson v. City of Bessemer City, N.C., 

, 574−75
(1985).



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        B. Admissibility of Expert Witness Testimony and Reports

    The respondent argues that Dr. Karl’s testimony and written evidence is
inadmissible and that Dr. Karl should not have been qualified as an expert
witness. He contends that some of her testimony was based on hearsay
statements, rather than her personal knowledge, and that her written
report contains numerous references to testimony by many declarants who
are either unidentifiable or otherwise not subject to effective
cross-examination. He argues that hearsay evidence is admissible only if it
is “uncontradicted” and that, in this case, the statements Dr. Karl relied on
“are not undisputed.” Finally, he contends that the testimony is not
sufficiently probative or reliable because Dr. Karl is “admittedly
sympathetic toward the so-called rebels who were the former adversaries of
the military junta in which Respondent was an officer.”
    We affirm the Immigration Judge’s inclusion of Dr. Karl’s testimony
and written evidence in the record. The formal rules of evidence do not
apply in immigration proceedings. Garces v. U.S. Att’y Gen., 

 (11th Cir. 2010); Matter of D-R-, 

; see also
INS v. Lopez-Mendoza, 

, 1039–40, 1050–51 (1984). Hearsay
evidence is admissible in immigration proceedings “if it is probative and its
use is not fundamentally unfair so as to deprive the [alien] of due process.”
Cortez v. U.S. Att’y Gen., 

 (11th Cir. 2011) (quoting
Tashnizi v. INS, 

, 782–83 (5th Cir. 1978) (internal quotation
mark omitted)); see also Matter of D-R-, 

.
    The Immigration Judge did not clearly err in finding that Dr. Karl’s
testimony and written report were reliable and probative. See 

(a) (2014) (providing that an Immigration Judge may receive in
evidence any oral or written statement that is material and relevant). He
correctly found that Dr. Karl’s opinions are “reasonable inferences drawn
from the facts and data” during the war, which were described by Dr. Karl
and recorded in detail in the written evidence. It was reasonable for the
Immigration Judge to conclude that any sympathy Dr. Karl may have with
the opposition forces did not make her testimony unreliable.
    Moreover, as an expert witness, Dr. Karl is permitted to base her
opinion on hearsay evidence and need not have personal knowledge of the
facts underlying those opinions. Matter of D-R-, 25 I&N Dec. at 459–60;
accord Fed. R. Evid. 702. We agree with the Immigration Judge’s
qualification of Dr. Karl as an expert witness in the areas he delineated.
Her experience and knowledge concerning Central America generally, and
El Salvador in particular, are well documented in her curriculum vitae and
her report. She traveled extensively in El Salvador and the region and,
during the relevant period, interviewed hundreds of people concerning

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El Salvador, including individual leaders on both sides of the conflict. She
also conducted extensive independent research, and many of the
primary and secondary sources that form the basis of her testimony are in
the record.
    The Immigration Judge also did not clearly err in admitting the Truth
Commission report, contrary to the respondent’s contention. In compiling
its report, the Truth Commission received testimony from 2,000 primary
sources referring to more than 7,000 victims, information from secondary
sources relating to more than 20,000 victims, and written evidence from
both the Salvadoran Government and its opponents. There is therefore no
indication that the report is not probative or reliable. See Chavez
v. Carranza, 

, 496–97 (6th Cir. 2009) (upholding the
admissibility of Dr. Karl’s testimony, which was based, in part, on the
Truth Commission report); Arce v. Garcia, 

 (11th Cir.
2006) (quoting the Truth Commission report). See generally Malkandi
v. Holder, 

 (9th Cir. 2009) (upholding the admission of
the 9/11 Commission Report into evidence as being “akin to an expert
report”).

                     C. “Assisted or Otherwise Participated”

    According to section 237(a)(4)(D) of the Act, “[a]ny alien described in
clause (i), (ii), or (iii) of section 212(a)(3)(E) is deportable.” Section
212(a)(3)(E)(iii) of the Act includes any alien who has “committed,
ordered, incited, assisted, or otherwise participated in the commission of”
any act of either torture or extrajudicial killing.
    In Matter of A-H-, 

 (A.G. 2005), the Attorney
General ruled that these terms “are to be given broad application” and “do
not require direct personal involvement.” In that case, the alien was a
leader-in-exile of a political movement in Algeria, and he requested asylum
in the United States. The issue was whether he “ordered, incited, assisted,
or otherwise participated in” persecution in Algeria and was thus ineligible
for asylum under section 208(b)(2)(A)(i) of the Act, 

(b)(2)(A)(i) (2000) (known as the “persecutor bar”). Id. at 783. The
Attorney General concluded that the standard was “broad enough to
encompass aid and support provided 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. The United States Court of Appeals for the
Eleventh Circuit also held that the persecutor bar does not require that the
alien personally harm the alleged victim. Chen v. U.S. Att’y Gen., 

 (11th Cir. 2008).

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   In Matter of D-R-, 

, we applied section 212(a)(3)(E)(iii)
of the Act to an alien who was in a military leadership role. We noted that
according to the legislative history of the statute, section 212(a)(3)(E)(iii)
was “intended to reach the behavior of persons directly or personally
associated with the covered acts, including those with command
responsibility.” 

 at 452 (quoting S. Rep. No. 108-209, at 10 (2003))
(internal quotation marks omitted). The term “command responsibility”
means that

      a commander is responsible for unlawful acts when (1) the forces who committed
      the abuses were subordinates of the commander (i.e., the forces were under his
      control either as a matter of law or as a matter of fact); (2) the commander knew,
      or, in light of the circumstances at the time, should have known, that subordinates
      had committed, were committing, or were about to commit unlawful acts; and
      (3) the commander failed to prove that he had taken the necessary and reasonable
      measures to (a) prevent or stop subordinates from committing such acts, or
      (b) investigate the acts committed by subordinates in a genuine effort to punish the
      perpetrators. Attempts and conspiracies to commit these crimes are encompassed
      in the “otherwise participated in” language. This language addresses an
      appropriate range of levels of complicity for which aliens should be held
      accountable . . . .

 at 452–53 (emphasis added). We also noted that cases cited in the
Senate Report reflected that there is a “continuum of conduct ranging from
passive acceptance, which does not meet the legal standard, to active,
personal participation, which clearly does.” 

.
    The respondent does not dispute that the Armed Forces and Security
Forces of El Salvador committed torture and extrajudicial killing during the
war. He is not charged with personally inflicting physical harm on his
alleged victims or directly ordering his subordinates to torture or kill any
individual or group. 4 The issue, therefore, is whether the respondent’s
actions, or failures to act, as a military commander fall within the definition
of assisting or otherwise participating in either extrajudicial killing or
torture. The respondent contends that, to be found removable, it must be


4
   We agree with the respondent that he is not subject to removal because he may have
been mentioned in the legislative history of the statutory removal provision or because
the enactment of the provision may have been directed at his personal circumstances. See
S. Rep. No. 108-209, at 4 (referring to a former Salvadoran official who made no serious
effort to investigate the murders of four American churchwomen in 1980 and who
currently lives in Florida). The Immigration Judge did not decide the case on this basis.
The inquiry is whether the respondent’s actions fell within the conduct articulated in the
statute.


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shown that he knew of, and “took personal action to promote or facilitate”
the described acts.
    We disagree with the respondent’s formulation of the standard.
Congress clearly intended that commanders should be held accountable
if their subordinates commit torture or extrajudicial killings. See S. Rep.
No. 108-209, at 10. As we held in Matter of D-R-, when applying the
statute to the case of an individual with “command responsibility,” we rely
on Congress’ expressed intent and consider whether the alien “knew, or, in
light of the circumstances at the time, should have known, that subordinates
had committed, were committing, or were about to commit unlawful acts”
and whether he took “the necessary and reasonable measures to (a) prevent
or stop subordinates from committing such acts, or (b) investigate the acts
committed by subordinates in a genuine effort to punish the perpetrators.”

 (emphasis added) (quoting S. Rep. No. 108-209, at 10).
The statute does not require the alien to have taken personal action to
promote or facilitate the alleged acts before or during their commission, as
the respondent argues. It is sufficient that he (1) had knowledge that his
subordinates committed unlawful acts and (2) failed to take action to
investigate those acts afterwards in a genuine effort to punish the
perpetrators.5

                  D. Respondent’s Roles and Responsibilities

    The respondent argues that he was not responsible for any torturous acts
or extrajudicial killings committed by the National Guardsmen and soldiers.
He contends that many pro-Government forces acted autonomously and
that he lacked control over these “rogue units.” He further contends that
even if he had taken any preemptive or corrective actions, such actions
would not have had any significant effect.
    Even if the respondent’s argument regarding “rogue units” supports a
legal basis to conclude that he did not have the requisite command
responsibility for section 237(a)(4)(D) of the Act to apply, the Immigration
Judge correctly found that the respondent had control over his subordinates.
As head of the National Guard, the respondent personally led a small
officer corps of 16 men. He also had ultimate responsibility for the

5
   The statute does not require a finding of motive to determine that the alien is
removable. Nor does it require a finding that the torture or extrajudicial killing had a
lasting effect or played a part in some larger act. Thus, it is not necessary for us to
consider the Immigration Judge’s determination that the respondent’s failure to act
“contributed to an attitude” with the Security Forces and Armed Forces that torture and
extrajudicial killing could be committed “with impunity.”


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National Guard’s intelligence unit and could have used this unit to
investigate misconduct. Later, as Minister of Defense, the respondent was
the head of the Armed Forces and directed the Security Forces. In this
position, he was also a member of President Duarte’s cabinet. Essentially,
he was the most powerful person in the military, which was the most
powerful force in the country. In fact, the respondent acknowledged that all
members of the Armed Forces were his subordinates and that disobeying
any of his orders would result in punishment, including dismissal. He
testified that there were no acts of insubordination to any of his orders.
    According to the record, United States officials considered the
respondent to have command responsibility for his subordinates’ actions.
Ambassador White testified that he discussed human rights violations
directly with the respondent in his role as Director of the National Guard.
In March 1980, Ambassador White sent a cable to the Secretary of State, in
which he related that elements of the Security Forces were conducting a
campaign of terror in the countryside and that the command structure of the
army and the Security Forces was either tolerating or encouraging the
activity. He clarified in his testimony that this “command structure”
included the respondent. An Embassy cable in May 1980 named the
respondent as one of three officials who could “stop the repression if they
wished.”
    On appeal, the respondent argues that Ambassador White’s testimony
supports his assertion that he did not have the ability to stop his
subordinates from engaging in torture and extrajudicial killing while he was
Director of the National Guard. Ambassador White testified, however, that
those in command never claimed that they were unable to control their
subordinates.
    The respondent also acknowledged that when he was Minister of
Defense, he met with Ambassadors Passage and Corr on a weekly or
biweekly basis and had additional meetings with other United States
officials. He admitted that a perennial subject was the United States
officials’ concerns with the democratic process and human rights.
Ambassador Passage testified that the United States and President Duarte
tasked the respondent with changing the abusive behavior of the Armed
Forces. Ambassador Corr agreed that as Minister of Defense, the
respondent had a duty to investigate allegations of human rights abuses. He
also testified that the respondent had the ability to bring members of the
military to justice if they disobeyed a military order, which was
demonstrated by the respondent’s eventual assistance in moving one case to
civilian trial.
    Many times during the war, United States officials identified Salvadoran
officials who should be held accountable. During his December 1983 visit,

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Vice President Bush presented Salvadoran officials with a list of eight
names of individuals in the Armed Forces and Security Forces who had
extensive records of human rights violations and who should be removed.
In a private meeting with the respondent, Vice President Bush referred to a
list of Salvadoran officials or ex-officials who had been linked with death
squads and who should be reassigned. Ambassador Corr testified that
between 1985 and 1988, he had frank discussions with the respondent about
human rights abuses by the military, including identification of specific
officers.
    The record reflects, however, that the officer corps of the Armed Forces
and Security Forces was not held accountable for documented acts of
torture and extrajudicial killing. The respondent testified that as Minister of
Defense, he issued a permanent order to the entire Armed Forces to respect
the human rights of everyone in El Salvador. He acknowledged that any
killings of civilians would have been a violation of this order. Yet,
Ambassador White testified that, to his knowledge, during his tenure in
El Salvador no officer was ever punished for human rights violations.
Ambassador Corr testified that none of the individuals he discussed with
the respondent was actually prosecuted, and some were given command
positions “because of their effectiveness.” Ambassador Passage testified
that he was aware of a June 1984 agreement between President Duarte and
the respondent that when he became President of El Salvador, Duarte
would not seek prosecution of military officials for past human rights
abuses.
    In summary, this is not a case in which isolated or random human rights
abuses took place at the hands of rogue subordinates, far outside the
purview of a high ranking commander. This is also not the case of a
military leader who was unaware that wrongs were committed under his
watch, only to learn of the harm and the perpetrators long after the fact. To
the contrary, as the Immigration Judge found, the respondent led the
National Guard and the military when there were numerous high profile
incidents of human rights violations occurring year after year without any
significant action by the respondent to remedy or deter his subordinates’
misconduct.
    The respondent’s personal interference with legitimate investigations
and his inaction with regard to other incidents—even after United States
authorities brought to his attention credible evidence of specific soldiers
under his command committing acts of torture—prevented bringing
perpetrators to justice. The respondent’s conduct affirmatively and
knowingly shielded subordinates from the consequences of their acts and
promoted a culture of tolerance for human rights abuses. The record clearly
shows that the respondent was aware of pervasive abuses that took place

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while he was in command of his nation’s Armed Forces and that, through
both action and inaction, he did not hold the perpetrators accountable and
even protected them at times. In short, we are satisfied that the respondent
was proximate enough to the human rights abuses to be accountable for
them under the applicable legal standard.
    Accordingly, the Immigration Judge did not clearly err in finding that
the respondent had the authority and control over his subordinates to give
him the requisite “command responsibility.” See 8 C.F.R § 1003.1(d)(3)(i).
Thus, the respondent’s contentions concerning his limited authority over
military personnel are not persuasive and do not make section 237(a)(4)(D)
of the Act inapplicable in this case.

                           E. Allegations of Torture

    “Torture” is defined in 

(1) (2012) as, “an act
committed by a person acting under the color of law specifically intended
to inflict severe physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person within his
custody or physical control.” Two specific instances of torture are
discussed below.

                               1. Dr. Romagoza

    On December 12, 1980, Dr. Romagoza, then a medical student,
travelled to the town of Santa Anita, located about an hour outside of San
Salvador, to provide medical care as part of a church-sponsored celebration.
As he was preparing a mobile clinic, members of the Army, National
Guard, and a paramilitary group called ORDEN pulled up to the scene and
started firing their weapons. Dr. Romagoza was shot in the ankle. The
soldiers detained and transported him, first to Army Headquarters, then to
National Guard headquarters in San Salvador.
    Dr. Romagoza testified that, for 22 days during his detention, he was
tortured repeatedly. He was beaten, shocked with electrical probes all over
his body, sexually assaulted with a stick, and hung from the ceiling for
several days. He was also shot in the left arm, leaving him with a lifelong
disability. His wounds were not cleaned or dressed until 2 days before his
release. He was interrogated daily, sometimes multiple times a day,
concerning his participation in guerilla groups and whether he knew anyone
who was involved with the guerillas.
    Because the respondent was the Director of the National Guard at the
time, his office was located at the National Guard headquarters, near where
Dr. Romagoza was being held. Dr. Romagoza testified that, one day,

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during his imprisonment, the respondent accompanied Dr. Romagoza’s
uncle, Salvador Mejia Arce, who was a lieutenant colonel in the National
Guard, to question him.           While the respondent was interrogating
Dr. Romagoza, another captor removed worms from Dr. Romagoza’s open
wounds and told him to eat them. Dr. Romagoza was also kicked by his
uncle and others, and someone put his foot on Dr. Romagoza’s chest.
Although he was blindfolded at the time, Dr. Romagoza testified that he
was “90 percent sure” that the respondent was present during this incident.
    When Dr. Romagoza was released on January 5, 1981, he was escorted
out of National Guard Headquarters by another uncle, Manuel Rafael Arce,
who was also a lieutenant colonel in the National Guard. Dr. Romagoza
weighed 75 pounds and could not walk by himself. As he left, he saw the
respondent and Lieutenant Colonel Salvador Mejia Arce watching him
depart.
    The respondent filed a motion in limine with the Immigration Judge,
arguing that any identification evidence derived from Dr. Romagoza should
be excluded. The Immigration Judge denied the motion, concluding that
Dr. Romagoza’s testimony would be relevant and probative. The
Immigration Judge found that despite some minor inconsistencies in his
testimony, Dr. Romagoza was credible because his testimony was
otherwise unembellished, his details were specific, and his demeanor was
appropriate to his narrative.
    The respondent does not dispute that Dr. Romagoza was tortured. He
also acknowledges that Dr. Romagoza’s testimony, “if believed, might be
sufficient to establish [the respondent’s] personal involvement in torture.”
He argues, however, that the Immigration Judge clearly erred in finding
that Dr. Romagoza was credible, given the multiple inconsistencies
between his testimony in these proceedings and the testimony he gave in a
prior civil suit, particularly concerning his identification of the respondent.
Arce v. Garcia, 

 (11th Cir. 2006). In his prior testimony,
Dr. Romagoza said that, during the interrogation, he could not see the
respondent’s face and could only see the parts of the respondent below his
belt. He testified at the immigration hearing, however, that he could see up
to the respondent’s nose.
    While the record may support different conclusions, the Immigration
Judge’s credibility finding was not clear error.                See 

(d)(3)(i) (providing that in order to overturn a credibility finding,
the Board must be convinced that the Immigration Judge clearly erred).
Dr. Romagoza admitted that he was blindfolded during the interrogation
and stated that when he was not moving, he could only see up to the
respondent’s navel, which is similar to the “belt” area he described in his
prior testimony. He testified that when he moved (for example, while being

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hit), he could see up to the respondent’s chin or nostrils. During cross
examination, Dr. Romagoza was asked about his prior testimony, and while
he agreed that it was slightly inconsistent, he pointed out that he
consistently said that he could not see the respondent’s full face. He also
relied on other clues for his identification of the respondent, such as hearing
the other people in the room deferring to the new interrogator, and noticing
that the individual’s pants and shoes were of a higher quality than the
others’ uniforms. We affirm the Immigration Judge’s determination that
Dr. Romagoza was a credible witness.
    The Immigration Judge found that the respondent “assisted or otherwise
participated” in the torture of Dr. Romagoza because he was the
highest-ranking person in the room while Dr. Romagoza was being kicked
and told to eat the worms from his wounds, and the respondent failed to
prevent these acts. The Immigration Judge concluded that even if the
respondent had not been present in the room during the torturous acts, he
knew about Dr. Romagoza’s torture and did not order his release.
    The evidence supports the conclusion that the respondent assisted or
otherwise participated in Dr. Romagoza’s torture. It is sufficient that the
respondent was the highest ranking officer in the room, the torture took
place at National Guard headquarters, and the respondent did not prohibit
or prevent the torture. He need not be the person who physically tortured
the victim under these circumstances.             The respondent knew that
subordinates committed unlawful acts and did not take “reasonable
measures to prevent or stop such acts.” Accordingly, we also agree with
the Immigration Judge’s determination that the respondent is removable
under section 237(a)(4)(D) of the Act for assisting or otherwise
participating in the torture of Dr. Romagoza.

                                2. Mr. Alvarado

    On August 25, 1983, Mr. Alvarado was kidnapped from San Salvador
and taken to a cell where he was interrogated and tortured. He was a
college student at the time, and he was also on the board of his school’s
student council, which was perceived to be indirectly affiliated with a leftist
guerilla group. Mr. Alvarado testified that he was not a guerilla, although
he sympathized with the guerillas. At first, his interrogation focused on his
affiliation with these groups.
    His captors later questioned him about a United States military advisor,
Lieutenant Commander Albert Schaufelberger, who had been killed in
El Salvador the previous year. After 7 days of torture, including receiving
electric shocks and being repeatedly hung from the ceiling in an “airplane”
position, which nearly caused him to suffocate, Mr. Alvarado agreed to

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sign a confession that he killed Lieutenant Commander Schaufelberger.
However, even after confessing and attending a staged press conference
shortly thereafter, he remained incarcerated.
    Soon after his capture, Mr. Alvarado determined that he was being held
by the Treasury Police. Major Ricardo Pozo, head of Section 2 of the
Treasury Police, visited him at least once a day. Colonel Nicolas Carranza,
who was the head of the Treasury Police, also visited him and directed his
interactions with the press. Significantly, another colonel claiming that he
was the respondent’s “representative” also visited Mr. Alvarado. This
colonel offered to release Mr. Alvarado if he agreed to help the military by
interacting with the guerillas and reporting back. Mr. Alvarado declined,
and on January 31, 1984, he was transferred to a penitentiary.
    Meanwhile, the United States Federal Bureau of Investigation (“FBI”)
was investigating the death of Lieutenant Commander Schaufelberger in
El Salvador. As part of their investigation, FBI officers interviewed
Mr. Alvarado and concluded that he was not the person who killed
Lieutenant Commander Schaufelberger.            On November 11, 1983,
Ambassador Pickering personally informed the respondent that
Mr. Alvarado was being held and tortured, and that Major Pozo was
involved. At two other meetings, high-ranking United States officials
discussed Mr. Alvarado’s wrongful confinement and torture with the
respondent. When Mr. Alvarado’s family visited him in detention in 1984,
they told him that a United States Embassy official had signed a document
stating that Mr. Alvarado was not guilty of killing Lieutenant Commander
Schaufelberger. However, Mr. Alvarado was not released from the
penitentiary until April 14, 1986.
    The respondent does not contest the Immigration Judge’s finding that
the acts described by Mr. Alvarado are “torture.” He also acknowledged
in his testimony that he knew that Mr. Alvarado was detained and
interrogated, but he denied knowing at the time that Mr. Alvarado was
being tortured. The respondent argues that Mr. Alvarado’s claim that he
was visited by someone who claimed to be the respondent’s representative
is inadmissible hearsay. He also contends that as a former “pro-guerilla
‘combatant,’” Mr. Alvarado is biased against the respondent. According to
the respondent, even if Mr. Alvarado is credible, there is nothing in his
testimony to establish that the respondent “assisted or participated in” his
torture.
    There is no clear error in the Immigration Judge’s finding that
Mr. Alvarado was a credible witness. The Immigration Judge found that
Mr. Alvarado’s testimony was probative and reliable, because it was
detailed, specific, internally consistent, and delivered with a demeanor
consistent with his narrative. See section 240(c)(4)(C) of the Act,

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8 U.S.C. § 1229a(c)(4)(C) (2012) (listing the factors to be considered in a
credibility determination).     The Immigration Judge also noted that
Mr. Alvarado’s testimony was corroborated by Dr. Karl’s testimony and by
documentary evidence in the record, including State Department reports
regarding a lie detector test administered by the FBI. Mr. Alvarado
testified that he was not a guerilla combatant, and the respondent has not
provided evidence to rebut his assertion. There is no evidence in the record
that Mr. Alvarado is “biased” against the respondent.
    The Immigration Judge also did not clearly err in finding that the
respondent was aware of the details of Mr. Alvarado’s torture, but took no
action to investigate until the United States demanded action. Even then,
the respondent did not hold the perpetrators accountable. The Immigration
Judge noted that in December 1983, Vice President Bush presented the
respondent with a list of human rights abusers under his command who
should be removed. The list included both Major Pozo and Colonel
Carranza. Major Pozo was transferred but not dismissed, and he was later
promoted. Colonel Carranza was relieved of his command after his name
appeared on the list, and he eventually left for the United States. Thus, the
respondent knew that his subordinates had committed acts of torture and
did not take “reasonable measures” to prevent or stop such acts or
investigate “in a genuine effort to punish the perpetrators.” S. Rep.
No. 108-209, at 10. He is therefore removable under section 237(a)(4)(D)
of the Act for assisting or otherwise participating in the torture of
Mr. Alvarado.6

                     F. Allegations of Extrajudicial Killing

   The definition of “extrajudicial killing” in section 212(a)(3)(E)(iii)(II)
of the Act refers to section 3(a) of the Torture Victim Protection Act
of 1991, 

 Stat. 73, 73 (1992) (“TVPA”), which
provides:

     EXTRAJUDICIAL KILLING.—For the purposes of this Act, the term
     “extrajudicial killing” means a deliberated killing not authorized by a previous
     judgment pronounced by a regularly constituted court affording all the judicial
     guarantees which are recognized as indispensable by civilized peoples. Such term,

6
   Sections 212(a)(3)(E)(iii)(I) and 237(a)(4)(D) of the Act require only one act of
participation in torture to establish removability. Since we affirm the Immigration
Judge’s determination that the respondent assisted or otherwise participated in the two
specific acts of torture described above, we need not address the Immigration Judge’s
determination that during the period between 1979 and 1989, the respondent generally
assisted or participated in acts of torture.


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      however, does not include any such killing that, under international law, is lawfully
      carried out under the authority of a foreign nation.

    The respondent does not contest that the Salvadoran National Guard
committed extrajudicial killings between 1979 and 1983, when he was the
Director, and that the Armed Forces committed extrajudicial killings during
the period that he was the Minister of Defense. More specifically, the
respondent does not contest the Immigration Judge’s determinations that
the events described below all constituted extrajudicial killings within the
meaning of section 3(a) of the TVPA. The issue, therefore, is what role,
if any, the respondent played in the extrajudicial killings.

                            1. American Churchwomen

    On December 2, 1980, four American churchwomen were kidnapped as
they left the Salvadoran International Airport.7 The women were taken by
van to a rural location, raped, and shot. The bodies were left at the
scene. The women were reported missing the same day. The next day,
their burned-out van was discovered on the highway, and the bodies were
found afterwards. This event was widely publicized at the time it occurred
and is well documented in the record.
    National Guardsmen were soon implicated in the killings. Ambassador
White testified that as soon as he learned of the churchwomen’s
disappearance, he called General Garcia, then-Minister of Defense. From
their conversation it appeared to Ambassador White that General Garcia
was already aware of the murders.8 President Duarte indicated to United
States officials that if military personnel were implicated, the military
would be responsible for holding the perpetrators accountable. Despite a
confession from one of the Guardsman, however, two investigations—one
ordered by the Salvadoran Government; the other ordered by the
respondent and conducted by Major Zepeda, his direct subordinate—
concluded that the National Guard was not responsible for the murders.
    The United States Embassy staff, including Ambassador White,
conducted an independent investigation with the FBI, which revealed the
identities of the Guardsmen involved. In April 1981, United States officials
turned those names over to President Duarte. The respondent ordered the
7
   Three of the women were nuns from the Maryknoll order and the fourth was a
layperson volunteer.
8
   In his interim decision, the Immigration Judge related that Ambassador Corr testified
that he called the respondent when he first learned that the churchwomen’s van had been
found. In his final decision, the Immigration Judge corrected this error, clarifying that
Ambassador White testified that he called General Garcia.


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arrest of the named Guardsmen, but they were not arrested. After receiving
pressure from the United States, the Salvadoran Government undertook
another investigation and, with assistance from the FBI, tied the same
Guardsmen to the crime. The Guardsmen were taken into custody in 1982,
but they still were not prosecuted.9
    The United States Secretary of State requested another independent
investigation. Judge Harold R. Tyler, Jr., conducted that investigation, and
in December 1983, he submitted his report to the Secretary of State.
Harold R. Tyler, Jr., The Churchwomen Murders: A Report to the Secretary
of State (Dec. 2, 1983), available at http://foia.state.gov/searchapp/
DOCUMENTS/churchwomen/3925.PDF (hereinafter “Tyler Report”). The
Tyler Report concluded that there was overwhelming evidence that the
National Guardsmen being held committed the crime. In 1984, the
Guardsmen were tried and sentenced to 30 years in prison.
    The Tyler Report concluded that it was unlikely the kidnapping was
ordered by high-ranking officers. However, it also found that high-ranking
officers, including Major Zepeda, who conducted the initial investigation,
knew the identity of the perpetrators within days of the crime. The Tyler
Report further concluded that the purpose of the first two Salvadoran
investigations was to absolve the Salvadoran Security Forces of
responsibility for the murders. The Tyler Report found that Major Zepeda
had actively and personally covered up the Guardsmen’s involvement. As
for the respondent, the Tyler Report concluded that “it is quite possible”
that he was aware of, and for a time acquiesced in, the cover-up, because it
was unlikely that Major Zepeda would not have reported it to him.
   The Truth Commission also addressed the murders of the churchwomen.
It concluded that the respondent and other commanders “knew that
members of the National Guard had committed the murders pursuant to
orders of a superior,” and that the respondent and General Garcia “made no
serious effort to conduct a thorough investigation of responsibility for the
murders.”
    The Immigration Judge did not clearly err in finding that the respondent,
as Director of the National Guard, had a duty to investigate these
extrajudicial killings but failed to do so in a competent manner. In addition
to the factual findings above, he noted the Tyler Report’s observations that
the respondent had been “evasive” when interviewed about the murders and

9
   There is some confusion as to the number of Guardsmen implicated, charged, and
found guilty. The Immigration Judge refers to four individuals. The record reflects that,
although many were implicated or interviewed, five men were ultimately charged and
found guilty—an officer and his four subordinates who were present at the assault and
murder.


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that the main perpetrator’s fingerprints were not provided to the FBI during
its investigation. The Immigration Judge correctly determined that the
respondent knew that National Guardsmen confessed to involvement in the
murders, failed to competently investigate the Guardsmen under his
command, obstructed the United States’ efforts to investigate, and delayed
bringing the perpetrators to justice. We therefore agree with his conclusion
that the respondent is removable under section 237(a)(4)(D) of the Act for
assisting or otherwise participating in the extrajudicial killing of the
American churchwomen.

                          2. Sheraton Hotel Killings

    On January 3, 1981, two members of the National Guard walked into
the San Salvador Sheraton Hotel and shot and killed one Salvadoran man
and two United States citizens. The Salvadoran was a labor leader and the
head of a government agency in charge of agrarian reform. The United
States citizens were advisors from a United States labor organization. The
Immigration Judge’s decision references the extensive documentation of
the event and the subsequent efforts to bring the perpetrators to justice.
    The two National Guardsmen who committed the murders were
eventually convicted. However, the superior officers who were present at
the hotel and ordered the killings—Major Mario Denis Moran, Chief of
Section 2 of the National Guard; Lieutenant Rodolfo Isidro Lopez Sibrian,
second in command of Section 2; and Captain Eduardo Avila Avila—were
never convicted.
    The evidence demonstrates that the respondent knew about the
involvement of the National Guard officers in the Sheraton murders no later
than September 1982, yet he did not remove any of the involved officers
from active duty. In a July 1983 memorandum concerning the Sheraton
murders, the chief United States investigator emphatically stated that the
respondent had the authority and jurisdiction to investigate his officers’
involvement in this crime, but he did not take any action to do so and, in
fact, delayed the investigation by waiting for written orders from the
Minister of Defense. The respondent also refused to give the appointed
Salvadoran investigator any written instructions or authority. After the
investigation was complete, the respondent refused to forward the report
directly to the assigned court, instead referring it to the Minister of Defense.
    The respondent also did not arrest Captain Avila, even though the
United States Ambassador urged him to do so in a July 1983 meeting, as
did Vice President Bush in December 1983. The respondent was aware
that Captain Avila disappeared at some point after the murders. Although
Captain Avila was subject to arrest for “desertion,” he was known to be

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staying near National Guard Headquarters and meeting with officers of the
Armed Forces and Security Forces.
    After Lieutenant Lopez Sibrian came under judicial scrutiny for his role
in the killings, the respondent defended him to a United States Embassy
official and expressed the desire to “transfer” him to avoid prosecution.
Lieutenant Lopez Sibrian was transferred to the Fourth Brigade in 1983. In
June 1983, the respondent promoted Major Moran to be commander of the
Engineering Center and then promoted him again in 1985, even after he
was implicated in these and other extrajudicial killings.
    The individuals who planned and ordered the Sheraton murders were
the respondent’s subordinates. The respondent knew, or should have
known, that these subordinates were involved. He failed to investigate or
make a genuine effort to punish the perpetrators. Therefore, we agree with
the Immigration Judge’s determination that the respondent is removable for
assisting or otherwise participating in these extrajudicial killings.

                     3. Additional Extrajudicial Killings

   The Immigration Judge analyzed the respondent’s role in four other
extradjudicial killings: the Toledo/Bazzaglia murders, the Las Hojas
Massacre, the Puerto del Diablo Murders, and the San Sebastian Massacre.
Because a single extrajudicial killing is sufficient to satisfy the DHS’s
burden of proof, we need not address these other incidents.

          G. Political Question Abstention and Collateral Estoppel

    The respondent argues that the Immigration Judge’s jurisdiction to
determine his removability is precluded by the “political question
abstention doctrine.” See Baker v. Carr, 

 (1962)
(enumerating the factors that render a case nonjusticiable as a political
question). We are not persuaded. The nonjusticiability of a political
question is primarily a function of the separation of powers, that is, the
retention of the Executive Branch’s authority over political questions,
without a redetermination of those questions by the Judicial Branch. See 

; see also Aktepe v. USA, 

 (11th Cir. 1997) (“The
justiciability of a controversy depends . . . upon whether judicial resolution
of that controversy would be consonant with the separation of powers
principles embodied in the Constitution.”). The division of prosecution and
adjudicative powers between two different Executive Branch departments,
the DHS and the Department of Justice, makes no difference in its retention



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of authority. There is no Judicial Branch encroachment in removal
proceedings.10
    Further, unlike the cases cited by the respondent, in this case the
Immigration Judge was not asked to decide the wisdom, reasonableness, or
legality of foreign policy decisions by former Executive Branch officials.
Cf. Gonzales-Vera v. Kissinger, 

 (D.C. Cir. 2006) (citing
Schneider v. Kissinger, 

 (D.C. Cir. 2005) (affirming the
dismissal of a tort action claiming that the United States and National
Security Adviser Kissinger had caused the kidnapping, torture, and death of
the plaintiffs’ decedent in Chile through the Executive Branch’s foreign
policy decisions)). The Immigration Judge also did not address the
respondent’s culpability under the laws of El Salvador.
    The respondent also contends that it is “manifestly unjust” for the
United States Government to remove him. He asserts that during his tenure
as Director of the National Guard and Minister of Defense, he was
“consistently and uniformly led to believe that his conduct was consistent
with the ‘official policy’ of the United States.” Thus, he argues, insofar as
equitable estoppel applies to prevent a miscarriage of justice when an
individual has been misled by the action or advice of Government officers,
it should be applied in this case to prevent his removal.
    The respondent cites no case in support of his contention that the
Immigration Judge or the Board may apply equitable estoppel in
determining whether he is removable under the Act. We agree with the
Immigration Judge that equitable estoppel principles do not apply. See
Matter of Hernandez-Puente, 

 (BIA 1991) (stating
that the Board and the Immigration Judges are without authority to apply
equitable estoppel to preclude the Government from pursuing a lawful
course of action).
    Unlike some provisions of the Act, section 237(a)(4)(D) does not
contemplate a balancing of equities in determining whether an alien is
removable. There is also no authority for the proposition that a prior grant

10
   Our decision in Matter of Ruiz-Massieu, 

 (BIA 1999), did not, as the
respondent suggested at oral argument, apply the political question doctrine to removal
proceedings within the Executive Branch. Rather, that case concerned a discrete
provision in the Act that rendered an alien removable when the Secretary of State
determined that his presence in the United States would have potentially harmful foreign
policy consequences. See former section 241(a)(4)(C)(i) of the Act, 

(a)(4)(C)(i) (1994). We concluded that the Secretary’s determination is sufficient
for a finding that an alien is deportable in those circumstances and that the determination
should be “treated as conclusive evidence of the respondent’s deportability.” Id. at 842.
Thus, we held only that an Immigration Judge could not review the reasons for the
Secretary’s determination or otherwise reject it as invalid.


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of admission confers immunity from removal. Thus, any consideration of
the alien’s circumstances is made only by the DHS, in determining whether
to file removal charges. See Matter of Bahta, 

(BIA 2000) (explaining that the Government has prosecutorial discretion,
including the discretion to address the equities of individual cases in a
manner that the rigid application of a broadly drawn statute may not allow).

                             III. CONCLUSION
   For all the above reasons, we agree with the Immigration Judge’s
determination that the respondent is removable under section 237(a)(4)(D)
of the Act. Because the respondent is also inadmissible under section
212(a)(3)(E)(iii) for participation in acts of torture and extrajudicial killing,
we agree with the Immigration Judge that he is ineligible for cancellation of
removal pursuant to section 240A(c)(4) of the Act. Accordingly, the
respondent’s appeal will be dismissed.
   ORDER: The appeal is dismissed.




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