Roberto Ferrer Miranda Alvarado Madeleine Janet Morales Lopez v. Alberto R. Gonzales, Attorney General

441 F.3d 750 Roberto Ferrer MIRANDA ALVARADO; Madeleine Janet Morales Lopez, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. No. 03-70165. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2004. Submission Vacated November 4, 2004. Resubmitted June 14, 2005. Filed March 21, 2006. Nadeem H. Makada, Burlingame, CA, for the petitioner. Norah Ascoli Schwarz, Senior Litigation Counsel, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, and Marshall Tamor Golding (on the brief), for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. Aub-xeh-jsm, Acs-rlz-xfq. Before BETTY B. FLETCHER, EDWARD LEAVY, and MARSHA S. BERZON, Circuit Judges. BERZON, Circuit Judge. 1 We apply a provision of the Immigration and Nationality Act (INA) that forbids the granting of asylum and withholding of removal to individuals who participate in the persecution of others on a protected ground, even if they themselves have a well-founded fear of persecution should they return. Roberto Ferrer Miranda Alvarado ("Miranda") sought asylum and withholding of removal, but an Immigration Judge (IJ) held that…

concurring:

I concur in Part II of the opinion. In this relatively straightforward case, the IJ determined that Miranda had “assisted in the persecution of others ... on account of their political opinion” under 8 U.S.C. § 1101 (a)(42), and was thus ineligible for asylum and withholding of removal under 8 U.S.C. §§ 1158 (b) (2) (A) (i) and 1231(b)(3)(B)®. The BIA “streamlined” the case, affirming the result without an opinion. In such a case, we review the IJ’s factual determinations for substantial evidence and we review de novo the IJ’s legal conclusions. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.2004). I concur in the holding that substantial evidence supports the IJ’s factual determination that Miranda persecuted others on account of their political opinion under the our interpretation of the applicable statutes.

The discussion in Part I regarding Chevron deference is irrelevant to the outcome of this case. Whether we defer or not to the IJ’s legal conclusion has no effect on the outcome for Miranda — either way, he does not prevail. We should reserve the discussion on Chevron deference to a case where the resolution of this issue is necessary to the decision.

We apply a provision of the Immigration and Nationality Act (INA) that forbids the granting of asylum and withholding of removal to individuals who participate in the persecution of others on a protected ground, even if they themselves have a well-founded fear of persecution should they return. Roberto Ferrer Miranda Alvarado (“Miranda”) sought asylum and withholding of removal, but an Immigration Judge (IJ) held that Miranda was barred from relief because he had “assisted in the persecution of others ... on account of their political opinion.” See 8 U.S.C. §§ 1101 (a)(42)(defining refugees to exclude “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion”), 1158(b)(2)(A)(i) (barring such persecutors from asylum), 1231(b)(3)(B)(i) (barring such persecutors from withholding of removal). 1 We hold that the IJ properly decided that Miranda “assisted in persecution” and is thus ineligible for asylum and withholding of removal.

BACKGROUND

In 1981, Miranda, a native and citizen of Peru, joined the Peruvian Civil Guard in Lima. He was…