Mr. Acosta came to Youman, Madeo & Fasano in March 2015 after hearing about our firm from our television show. Mr. Acosta had already been in removal proceedings for nearly ten years when he came to YMF and had prior counsel who had handled his case, but he was looking for a change. He had been living in the United States since 2000 when, in 2006, the government of Peru contacted Interpol and the Department of State and Mr. Acosta was arrested and placed in removal proceedings based on an accusation that he had committed genocide in Peru. He initially had a hearing on an asylum claim in 2008, but then the case switched course to adjustment of status through an approved marriage petition from his U.S. citizen wife. Because of the alleged charges against him, neither the Immigration Judge nor the Department of Homeland Security would agree to remand the adjustment adjudication to USCIS. Mr. Acosta met with Partner Raymond Fasano, to discuss his situation; Associate Attorney Christina Xenides was then assigned to work on the case.
Interestingly, when we came in as new counsel the bulk of the trial was completed but both sides wanted some further testimony on the only issue in the case – specifically, Mr. Acosta’s membership and participation in the Peruvian Army in the late 1980’s during the internal conflict in Peru. The Department of Homeland Security was taking the position that Mr. Acosta should be barred from adjustment of status because he assisted in acts of torture, extrajudicial killing, and persecution of detainees who were members or suspected members of the Shining Path Communist Party of Peru. As Counsel for Mr. Acosta, it was our position that even if there was a persecutor bar to adjustment of status (there is not), Mr. Acosta’s actions while in the military in Peru did not meet the requisite standard and, as a matter of discretion, he should not be barred from relief.
By way of background, Mr. Acosta joined the Peruvian military as a soldier in 1986. In 1987, he was promoted first to corporeal soldier and then later that year to sergeant. In 1988, he enrolled in military school for nursing and he graduated with the title of sub-officer in June 1989. However, by 1991 he decided to abandon the military. During his tenure in the military, Mr. Acosta did in fact work in the anti-terrorism section and he was ordered to guard and transport prisoners who were arrested by the intelligence service. The important distinction, though, is that Mr. Acosta himself never interrogated or tortured anyone. In fact, quite the opposite is true in that he protested transferring and guarding the prisoners on several occasions and he himself was the victim of punishment and abuse.
After reviewing years of transcripts and audio recordings of prior hearings and reviewing all of the evidence that had been submitted into the record over the past ten years, Ms. Xenides conducted two additional hearings where Mr. Acosta gave additional and very detailed, specific testimony about his involvement in the Peruvian military nearly 30 years ago. His memory is spectacular. The rest of the case came down to legal arguments and briefing, which lasted another year.
There is wide variation among the federal circuit courts’ use of the persecutor bar which arguably stems from the disparate understandings of what level of intent and involvement with the persecutory act is required to trigger the bar under the Immigration and Nationality Act. Much of the case law developed in direct response to Nazi concentration camp guards in the wake of the Holocaust. The bright line “objective test” rules that were promulgated to address that very specific issue are increasingly less applicable in today’s world, where the lines between persecutor and persecuted have blurred significantly. For example, child soldiers exemplify the reality of the outdated black and white moral simplicity that much of the case law suggests. The case law demonstrates a problematic, inconsistent application of the law in the absence of a unifying, guiding principle because some courts have been willing to label actors like a guard, a driver, a translator, or an escort as persecutors while other courts have found similar actors like a nurse, a guard, and a soldier to not be persecutors.
In reviewing the case law on the subject from several circuits, Ms. Xenides found that most relevant to Mr. Acosta’s situation were cases where there was tangential participation and proximity to the persecutory act. Thus, the question for the court to decide was whether he assisted or otherwise participated in persecution and whether there was some nexus between his actions and the persecution of others. In a delightful twist, one of the cases that Ms. Xenides relied on for her legal argument was Balachova v. Mukasey, 547 F.3d 374, 386 (2d Cir. 2008), which is a case that YMF Partner Mr. Raymond Fasano prevailed on in the Second Circuit Court of Appeals in 2008. In Balachova, the Court of Appeals outlined a test to determine if a respondent meets the criteria to be considered a persecutor: the alien must have been involved in acts of persecution on account of the victim’s protected status, the alien must have “assisted” the persecution (the court defined “assistance in persecution” as active conduct having direct consequences for the victims, not passive conduct tangential to the actual acts of oppression”), and, the alien must have sufficient knowledge that his actions may assist in persecution. Ms. Xenides successfully argued that Mr. Acosta did not meet any of these criteria.
Finally, in December 2016, over ten years after his removal proceedings began, the Immigration Judge rendered her decision in favor of Mr. Acosta, finding that the government’s arguments were “unpersuasive” and granting Mr. Acosta his permanent residency in the United States. The Judge found that he testified credibly and that his conduct did not rise to the level of persecution so as to bring it under the grounds of inadmissibility for relief.
Mr. Acosta told Ms. Xenides he still turns on YMF’s TV show every morning at 7am, but his wife jokingly told him he can stop watching now because his case was finally granted.
