26 I. & N. Dec. 494
BIA2015Background
- Respondent Carlos Eugenio Vides Casanova, former Director of the Salvadoran National Guard (1979–1983) and Minister of Defense (1983–1989), entered the U.S. in 1989 and was charged with removability under INA §237(a)(4)(D) for participation in torture and extrajudicial killings committed in El Salvador between 1979–1989.
- DHS alleged he “assisted or otherwise participated” in acts of torture and extrajudicial killing pursuant to INA §212(a)(3)(E)(iii); the IJ found removability and pretermitted cancellation of removal under §240A(a).
- DHS presented eyewitness victims (Dr. Romagoza; Mr. Alvarado), U.S. diplomats, an expert (Dr. Terry Lynn Karl), the UN Truth Commission report, and contemporaneous U.S. State Department materials documenting widespread abuses by Salvadoran Security Forces.
- The IJ found the respondent had command responsibility: his subordinates committed abuses while under his control, he knew or should have known of the abuses, and he failed to take necessary and reasonable measures to prevent, stop, or genuinely investigate and punish perpetrators.
- Specific adverse findings included the respondent’s presence or supervisory proximity to torture of Dr. Romagoza, knowledge and inaction regarding torture of Mr. Alvarado, and failures to investigate or to hold accountable subordinates in high-profile extrajudicial killings (e.g., the 1980 churchwomen murders and the Sheraton Hotel killings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility and weight of expert testimony and hearsay evidence | DHS: Dr. Karl’s expert opinions and sources are admissible and probative in immigration proceedings | Vides: Dr. Karl relied on hearsay and unidentifiable declarants; testimony is biased and unreliable | Board: Admitted; expert may base opinion on hearsay; testimony and Truth Commission report were probative and not fundamentally unfair |
| Scope of “assisted or otherwise participated” (command responsibility) | DHS: Statute covers broad forms of complicity including command responsibility; failure to prevent/investigate suffices | Vides: Must show he took personal action to promote or facilitate abuses; insufficient control over "rogue" units | Board: Rejected defendant’s narrower standard; command responsibility standard applies (knew/should have known + failed reasonable measures) |
| Whether respondent had authority/control over perpetrators | DHS: Respondent was head of National Guard/Armed Forces and had effective control and duty to act | Vides: Many units acted autonomously; he lacked effective control or ability to stop abuses | Board: Found respondent had control and authority; U.S. officials treated him as accountable; he failed to act or obstructed investigations |
| Political-question / equitable estoppel defenses | Vides: Removal would require intrusive review of foreign policy and the U.S. misled him into believing his conduct was acceptable | DHS: Removal adjudication is justiciable and equitable estoppel not available to bar lawful removal | Board: Political-question doctrine inapplicable; equitable estoppel and foreign-policy defenses do not preclude removal |
Key Cases Cited
- Anderson v. City of Bessemer City, 470 U.S. 564 (credibility findings by factfinder reviewed for clear error)
- Chen v. U.S. Att’y Gen., 513 F.3d 1255 (11th Cir.) (persecutor-bar liability does not require personal infliction of harm)
- Garces v. U.S. Att’y Gen., 611 F.3d 1337 (11th Cir.) (formal rules of evidence do not apply in immigration proceedings)
- Arce v. Garcia, 434 F.3d 1254 (11th Cir.) (court cited Truth Commission report and evidentiary use in human-rights cases)
- Lopez-Mendoza v. INS, 468 U.S. 1032 (admissibility standards and due process in immigration proceedings)
- Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303 (11th Cir.) (review of IJ’s factual determinations and future-event inferences)
- Malkandi v. Holder, 576 F.3d 906 (9th Cir.) (admission of investigative/commission reports as analogous expert material)
- Cortez v. U.S. Att’y Gen., [citation="446 F. App'x 166"] (11th Cir.) (hearsay admissible if probative and not fundamentally unfair)