Thursday, May 6, 2010

El Salvador and the Persecutor Bar. Guilty by Association?

Every month our law firm features a new country on our website. This month we’re featuring El Salvador, and as you can see from the pictures, it is a beautiful country in many ways.

As many of our readers may remember, El Salvador was engulfed in a bloody civil war from 1980 through 1992 that claimed the lives of an estimated 80,000 people. The civil war, between the military-led government of El Salvador and the Farabundo Martí National Liberation Front (FMLN), led to a huge population upheaval where many atrocities were committed from all sides involved.

On January 1992 the Chapultepec Peace Accords were signed in Chapultepec, Mexico – bringing an end to yet another bloody chapter in El Salvador’s history. A new Constitution was promulgated, the Armed Forces regulated, a civilian police force established, the FMLN became a political party instead of a guerrilla army, and an amnesty law was legislated in 1993.

In the years during and after the civil war, close to 20 percent of the entire population left El Salvador to other countries. Many of those fleeing El Salvador arrived in the United States seeking refuge and applied for asylum. Years later, in 1997, the United States passed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA provided various forms of immigration benefits and relief from deportation to nationals of certain countries, including El Salvador.

A legitimate concern of U.S. immigration authorities then, and very much still today, is the awarding of immigration benefits to individuals who participated in the persecution of others during the civil war. This is referred to as the “persecutor bar”. Section 240A(c)(5) of the Immigration and Nationality Act (INA) bars persons who ordered, incited, assisted, or otherwise participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion, from obtaining certain types of immigration benefits.

Every year the U.S. Department of Homeland Security (DHS) initiates removal proceedings against individuals accused of participating in the persecution of others. Just today, as I was writing this entry, I came across a news release from Immigration and Customs Enforcement (ICE) describing the arrest of a former Guatemalan special forces soldier in Palm Beach County, Florida, for lying on his naturalization application about his participation in a 1982 massacre at a Guatemalan village known as Las Dos Erres.

A concern that I have, from a legal perspective, having successfully represented several clients facing deportation based on the persecutor bar, is the government’s position in many cases that mere membership in an organization, standing alone and without any other evidence of personal involvement or culpability, is sufficient for the persecutor bar to apply. By doing so, I believe the government is adopting an impermissible and overly broad definition of the term “persecution” which is contrary to controlling U.S. Supreme Court decisions of Negusie v. Holder, Fedorenko v. U.S., and several Board of Immigration Appeals (BIA) decisions including Matter of Rodriguez-Majano, Matter of A-H-, Matter of Acosta, and Matter of Fuentes.

In preparing to represent clients being charged under the persecutor bar, I’ve had to immerse myself in the bloody history of the civil war in El Salvador.  I’ve also heard firsthand testimonies of people that lived in El Salvador during those years. In hearing their life stories I’ve been filled with immense sadness at the senseless loss of human life, reminded of the perverse potential of the human spirit, and overcome with a sense that those responsible should face justice for the sake of those victimized and the families they left behind.

I wonder though if in our pursuit to bring those responsible to justice, our judicial system might be too broadly placing culpability where none lies. Are all men, that were unfortunate enough to live in El Salvador during the years of the civil war, equally culpable? Some people have strong evidence presented against them. Other people, who served in any capacity during the civil war in El Salvador, regardless of their role or their personal involvement, are charged as “persecutors” by association only.

The first case I successfully represented involved a NACARA applicant who during the civil war served once a week in a “patrulla cantonal” or community patrol. He was a peasant farmer who guarded his hamlet with no shoes after work for 6 hours each week. When the other men in his community approached him to participate to protect themselves from possible guerilla attacks, he had no option but to agree.  Not agreeing would have ended up with him being labeled as a guerilla sympathizer, which would have put his life at real risk by death squads operating in the area. My client, who never shot a rifle, or a gun, and who was fortunate enough to serve in a hamlet with no strategic significance to either the guerilla forces or the government of El Salvador, was labeled as a persecutor and placed in removal proceedings. After a long and exhausting process, he was finally awarded his lawful permanent resident status in immigration court.

As the gray areas of the persecutor bar are more clearly defined by cases moving through our judicial system, what constitutes “persecution” (and what doesn’t) is being parsed out - but at the backs of those of whose cases we read about.