Mimesis Law
5 June 2020

Never Easy: Allegations of Criminality Enough to Bar Asylum Seeker

July 18, 2016 (Fault Lines) — The 9th Circuit Court of Appeals has upheld a Board of Immigration Appeals decision to bar a well-heeled Salvadoran from seeking asylum because of criminal allegations stemming from Guatemala.  From The Trial Insider:

A former Salvadoran pro soccer player and deputy to a congressman there was barred from seeking asylum in the U.S. because of his alleged complicity in the murder of three Salvadoran representatives to the Central American Parliament.

Roberto Carlos Silva-Pereira was barred from receiving asylum protection and may be removed from the U.S., the 9th U.S. Circuit Court of Appeals held Thursday.

Substantial evidence supported the Board of Immigration Appeals’ decision that Silva could not remain in the U.S. for his alleged role in a triple murder in Guatemala of the three Salvadorans, the court said.

Silva did the rounds as far as asylum seekers go.  He was accosted by the FBI back in 2007, and after a brief foot chase, he was taken into custody and placed in deportation proceedings, where he sought relief from deportation by seeking asylum and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, usually referred to as “CAT,” and to which the U.S. is a signatory.  During the immigration hearings, Silva described several incidents of violence allegedly perpetrated against him by Salvadoran officials.  The immigration judge found Silva to be non-credible, and thus denied his application for asylum.

Silva appealed to the Board of Immigration Appeals, which reversed the judge’s credibility findings and sent the case back for additional hearings.  That is when the government attorney, for the first time, brought up the fact that Silva had been charged with conspiracy to commit a triple murder in neighboring Guatemala.  Well, that changes everything, as they say.

U.S. federal law provides for several bars to those seeking asylum.  One of them is the “nonpolitical crime” bar, which dictates that asylum may not be granted “if there are serious reasons to believe that the applicant committed a serious nonpolitical crime.” Silva need not have been convicted of the murders (he never was, as he was only indicted) to lose, as the immigration judge need only find “probable cause” that he committed the offenses.

So as far as asylum goes (more on his CAT application below), no matter how bad someone suffered at the hands of government thugs from abroad, he will be barred from seeking asylum in the U.S. if there’s enough evidence of his involvement in a serious nonpolitical crime.* It’s never as easy as it looks, folks.  Arrived at the airport on one leg because the other limbs were chopped off by a guerrilla fighter, but you were indicted for a “serious” crime back home? Too bad and pack your bags, you’re barred from seeking asylum.

In upholding the Board’s decision to uphold the immigration judge’s decision to bar Silva from seeking asylum, the 9th Circuit Court of Appeals’ laid out the details of Silva’s purported involvement in the conspiracy with a Guatemalan congressman named Manuel Castillo:

Exhibits and testimony at the second round of hearings established that in February 2007, three Salvadoran representatives to the Central American Parliament were found murdered in a charred van outside Guatemala City.

During Castillo’s trial, Guatemalan authorities offered evidence that Silva cooperated with Castillo and the drug gang in planning the killings.  Correspondingly, the Guatemalan government filed a separate indictment against Silva, indicating that Silva acted as the “intellectual author” behind the Guatemalan murders.  Specifically, the indictment accuses Silva of planning the murders with Castillo and various gang members at a series of meetings in El Salvador and Guatemala.  Those allegations were corroborated during Castillo’s trial by an eyewitness witness known as “Judas,” currently under government protection in El Salvador.

As per the 9th Circuit’s decision, Silva’s case ping-ponged back and forth between the immigration court and the Board several times before it finally landed in the 9th Circuit.  He went through four different attorneys, and being part of El Salvador’s elite – which hold an insanely disproportionate slice of the country’s money pie — meant he had the coin to fight back over and over again in an arena where no one is entitled to a competent defense, or to pursue an appeal of any kind.

But Silva’s “high profile” may have hurt him as well, as it could have given the government prosecutor extra motivation to pursue the case in order to earn his stripes and climb up the prosecutorial ladder.  Just ask any immigration attorney worth his salt about representing clients who’ve been the subject of an Interpol “Red Notices,” which are basically international arrest warrants and are usually politically motivated.  Interpol’s version of the “scarlet letter” usually means that the immigration prosecutor will use that “evidence” of nefarious conduct (which is usually admissible under immigration court’s lax rules of evidence) from abroad to that person’s detriment.

As for Silva’s application under the Convention Against Torture, he would have been allowed to stay had he prevailed on that, since the nonpolitical crime bar does not apply.  But the 9th Circuit affirmed the Board’s denial of protection under CAT as well, because Silva never asserted fear of torture in Nicaragua. Why Nicaragua? Because it is the country to which the immigration judge ultimately ordered his deportation, as Silva had designated Nicaragua as the country of repatriation in the event that he lost in court.  Go figure.

*What’s considered a serious nonpolitical crime, you ask? It has been defined as a crime that (i) was not committed out of genuine political motives; (ii) was not directed toward the modification or structure of the state; and (iii) in which there is no direct, causal link between the crime committed and its alleged political purposes and object.

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