Roberto Silva-Pereira v. Loretta E. Lynch
2016 U.S. App. LEXIS 12512
| 9th Cir. | 2016Background
- Roberto Carlos Silva-Pereira, a wealthy former Salvadoran legislator and businessman, faced corruption charges in El Salvador after switching political parties; legislative immunity was revoked and an arrest warrant issued in January 2007.
- Silva fled to the United States, conceded removability, and applied for asylum, withholding of removal, and protection under the CAT; IJ initially found him noncredible, BIA remanded, later proceedings produced mixed IJ/BIA rulings.
- New evidence introduced included a Guatemalan indictment accusing Silva of conspiring to murder three PARLACEN delegates (the D’Aubuisson killing), eyewitness testimony (“Judas”), and allegations tying Silva to bribery/money laundering in El Salvador.
- The IJ ultimately found Silva ineligible for asylum and withholding because there were serious reasons to believe he committed serious nonpolitical crimes (Guatemalan murders and El Salvadoran corruption) and also found him not credible; the IJ denied CAT relief because Silva failed to show torture likely in the designated country of removal.
- The BIA adopted the IJ’s reasoning, upheld the adverse credibility findings (omissions about police assaults, inconsistent travel dates, and admitted lies to Salvadoran court), concluded there was probable-cause-level evidence linking Silva to the Guatemalan murders, and dismissed Silva’s appeal.
- Silva petitioned for review; the Ninth Circuit reviewed for substantial evidence and denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse credibility finding | Silva: omissions (assaults by police) were innocent forgetfulness or explained by fear; date discrepancies minor | Govt/BIA: omissions materially altered claim; inconsistent dates and admitted lies undermine credibility | BIA/IJ credibility determination upheld as supported by substantial evidence |
| Serious-nonpolitical-crimes bar (Guatemala murders) | Silva: charges are pretextual; experts say he was framed; no admission of guilt | Govt/BIA: Guatemalan indictment, eyewitness testimony, and corroborating facts supply probable-cause-level evidence | BIA’s conclusion there are serious reasons to believe Silva participated upheld |
| Application of law-of-the-case doctrine | Silva: earlier remands/decisions preclude reconsideration of the crimes bar | Govt/BIA: IJ/BIA may reconsider on remand; earlier decisions did not necessarily decide the bar | Doctrine inapplicable or, if applicable, does not forbid reconsideration; argument rejected |
| CAT relief (deferral of removal) | Silva: would likely be tortured if returned to El Salvador or Guatemala | Govt/BIA: Silva failed to show more-likely-than-not torture in the country of removal (Nicaragua, which Silva designated) | Denial of CAT relief upheld for unexhausted challenge re: Nicaragua; BIA order to remove to Nicaragua stands |
Key Cases Cited
- Huang v. Holder, 744 F.3d 1149 (9th Cir. 2014) (standard of review and REAL ID credibility framework)
- Shrestha v. Holder, 736 F.3d 871 (9th Cir. 2013) (review of BIA decisions adopting IJ’s findings)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) ("serious reasons for believing" = probable cause standard)
- Khouzam v. Holder, 361 F.3d 161 (2d Cir. 2004) (arrest warrants and police reports can support serious-reasons/probable-cause finding)
- Alvarez-Santos v. INS, 332 F.3d 1245 (9th Cir. 2003) (omission of pivotal violent incidents can support adverse credibility finding)