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'Persecutor Bar' Closes Door to Immigrant

By William Vogeler, Esq. on January 28, 2019 6:00 AM

A lifetime ago in El Salvador, Jose Alvarado joined the national guard because it was the only job he could get to feed his family.

One day, however, he stood by as his superiors beat a suspected guerilla and forced needles under the man's fingernails. Alvarado later left the country for the United States.

An immigration judge said Alvarado could legally stay in the U.S. because he didn't have the motive to hurt anybody. In Alvarado v. Whitaker, the U.S. First Circuit Court of Appeals disagreed.

Civil War

Alvarado served as a guard in the early 1980s during El Salvador's Civil War. His job was to patrol and provide security.

While patrolling a town, he stopped a man and asked for identification. Superior officers soon arrived and tortured the man.

Alvarado fled to the U.S., but authorities proceeded to deport him. A judge, however, cancelled the proceedings.

Reviewing the record, the appeals court noted "inconsistencies" in Alvarado's testimony. At one point, he denied seeing anything; at another, he described the incident in some detail.

"Persecutor Bar"

The appeals court said the case presented a question of first impression: whether the "persecutor bar" applied to a person who acted without a personal motive.

The justices said the bar applied to Alvarado; his motive was not the issue. They said it would be "contrary to common notions of culpability" to rule otherwise.

For example, they reasoned, a bus driver who takes people to a place knowing they will be beaten is also culpable.

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