FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO FERRER MIRANDA 

ALVARADO; MADELEINE JANET No. 03-70165 MORALES LOPEZ,

Petitioners, Agency Nos.  A72-136-241

v. A72-136-240

ALBERTO R. GONZALES, Attorney OPINION General,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 15, 2004—San Francisco, California

Submission Vacated November 4, 2004

Resubmitted June 14, 2005

Filed March 21, 2006

Before: Betty B. Fletcher, Edward Leavy, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Leavy

2891
COUNSEL

Nadeem H. Makada, Burlingame, California, for the petitioner.

Thomas K. Ragland and Marshall Tamor Golding (on the

brief), United States Department of Justice, Civil Division,

Office of Immigration Litigation, Washington, D.C., for the

respondent.

OPINION

BERZON, Circuit Judge: 

We apply a provision of the Immigration and Nationality

Act (INA) that forbids the granting of asylum and withholding of removal to individuals who participate in the persecution of others on a protected ground, even if they themselves

have a well-founded fear of persecution should they return.

Roberto Ferrer Miranda Alvarado (“Miranda”) sought asylum

and withholding of removal, but an Immigration Judge (IJ)

held that Miranda was barred from relief because he had “assisted in the persecution of others . . . on account of their

political opinion.” See 8 U.S.C. §§ 1101(a)(42) (defining refugees to exclude “any person who ordered, incited, assisted, or

MIRANDA ALVARADO v. GONZALES 2895
otherwise participated in the persecution of any person on

account of race, religion, nationality, membership in a particular social group, or political opinion”), 1158(b)(2)(A)(i)

(barring such persecutors from asylum), 1231(b)(3)(B)(i)

(barring such persecutors from withholding of removal).1 We

hold that the IJ properly decided that Miranda “assisted in

persecution” and is thus ineligible for asylum and withholding

of removal.

BACKGROUND

In 1981, Miranda, a native and citizen of Peru, joined the

Peruvian Civil Guard in Lima. He was nineteen years old. His

duties included protecting government officials and banks

from attacks by guerrilla organizations. Because Miranda was

a native speaker of Quechua as well as Spanish, he was also

assigned to serve as a community leader in an impoverished

Quechua-speaking neighborhood on the city’s outskirts. In

that role his tasks ranged from resolving land-use disputes to

preventing infiltration by the guerrilla organization Sendero

Luminoso (“Shining Path”). “Sendero Luminoso is a Maoist

guerilla organization, founded around 1980, that opposes the

current Peruvian government. Sendero Luminoso commits

terrorist acts against both government officials and civilians.”

Cruz-Navarro v. INS, 232 F.3d 1024, 1027 n.4 (9th Cir.

2000). Miranda presented evidence — including evidence that

Shining Path members shot another community leader and

destroyed her body with explosives — indicating that as a

community leader he faced substantial risks from the Shining

Path.

Beginning in 1982, Miranda received orders to serve as an

interpreter for other officers who interrogated suspected Shining Path members. During interrogations, suspects were often

1Madeleine Lopez, Miranda’s wife, is derivatively included in Miranda’s asylum application and was thus also barred. Where appropriate, we

refer to the two petitioners collectively as “Miranda.” 

2896 MIRANDA ALVARADO v. GONZALES
subjected to electric shock torture and beaten on the legs and

feet with rubber batons. According to Miranda, “many times

in a closed room with sand . . . electrical current was passed

into their hands or feet,” and the interrogees “shouted and

gave expressions of pain.” At his hearing, Miranda admitted

witnessing these acts but denied personally executing them.

He also maintained that he was unable to influence the torture: “I had no power to do anything about it. I wasn’t able

to do anything about it because that would have been against

my superiors.” Miranda stated that if he refused, “it would

have affected [his] performance rating and [he] would not

have been promoted.” Miranda attempted formally to resign

only in 1988, six years after the interrogations began. He did

so assertedly “because I didn’t want to belong anymore

because I didn’t like how the people doing the interrogations

abused the Shining Path members,” but on his resignation

form he cited “family reasons.” 

Miranda carried out his translating duties two to three times

a month for seven years. Asked how he felt watching the

interrogations, Miranda replied:

Very bad. I thought about all my family. . . . [I]f

I had been able to do anything about it, I would have

never let that happen. If there had been a different

kind of authority, it wouldn’t have happened.

Because it was my orders from my superiors to go

and do this work, I had no other alternative than to

go do it. . . . I had to go interpret because I had no

other orders.

Miranda was asked if he was “ever able to tell anyone to

stop the current or stop doing what they were doing.” He

answered:

Yes, because I’m a humanitarian and I feel the

suffering of other people. And I was able to tell them

don’t put so much current on or don’t put any more

MIRANDA ALVARADO v. GONZALES 2897
because sometimes they couldn’t even speak. Yes,

because the Quechua that they spoke, many times

they couldn’t even speak it after they were getting

this current, so I would say please don’t put any

more. And they said to me you’re just an interpreter.

You shouldn’t give your opinion here. You’re supposed to just come and interpret what they are saying.

In 1989, Miranda requested and received “anti-terrorist and

survival training.” In the course of his training, he helped capture three Shining Path members who had attacked the training group. These guerrillas threatened Miranda and his

companions, stating that “each of you will die; we never forget anyone.” Upon returning home Miranda found that his

wife and children had been visited by masked men who stole

his police uniforms and painted or posted Shining Path slogans on the walls.

Miranda removed his family to a small city sixty miles to

the south. He remained in Lima to carry out his police duties.

He slept at the police station, returning to his Lima residence

only every few days to take care of the family dog. In August

1990, Shining Path members again vandalized Miranda’s

property and killed his dog. They painted “we’ll never forget

you” on the walls and pinned a note to the corpse of his dog

with a threat: “[Y]ou will die in the same way.” 

Miranda fled to the United States on August 26, 1990, and

his wife followed in 1992. Miranda applied for asylum in

June 1993. He stated in his asylum application that: “I have

been directly targeted [by the Shining Path] because of my

police work and anti-terrorist . . . training, and ideologies.”

His asylum application was referred to the Immigration Court

because “[a]lthough the applicant has demonstrated a wellfounded fear of persecution, he is barred from receiving asylum in the U.S. because he participated in the persecution of

others.”

2898 MIRANDA ALVARADO v. GONZALES
The former Immigration and Nationalization Service (INS)2

charged Miranda with being present in this country without

being admitted or paroled. At the removal hearing, Miranda

admitted the allegations and conceded removability, but

requested asylum and withholding of removal. The IJ denied

Miranda’s application, concluding that: 

even if Mr. Miranda did not interrogate Shining

Path detainees and apply electric shocks or beat

them, he was a necessary part of the interrogation.

Without his services as a Quechua interpreter, the

interrogations could not proceed. With his services,

they did proceed. Over six years, the respondent participated in such interrogations two to three times per

month or approximately 144 to 216 times. He did not

protest his role at any time despite his stated qualms

and he did not seek to resign from police service

until 1990, even assuming that his resignation application was motivated by the psychic wear and tear of

his role in the interrogations or his disagreement

with them.3

The IJ determined that Miranda had:

assisted in the persecution of others, namely,

Shining Path detainees, on account of their political

opinion, that is, their membership in the highly ideological Shining Path. As to the detainees’ political

opinion, there is no indication in the record that the

2On March 1, 2003, the INS ceased to exist and its functions were transferred to the newly-created Department of Homeland Security. See

Aguilera-Ruiz v. Ashcroft, 348 F.3d 835, 835 n.* (9th Cir. 2003). For the

sake of consistency, we refer to the INS in this opinion. 

3The IJ’s timeline is not precisely accurate, as Miranda testified that he

attempted formally to resign in 1988 and then sought anti-terrorist training. Miranda does not argue that he was compelled to remain in the police

force on account of factors other than duty, police regulations governing

resignations, and career considerations. 

MIRANDA ALVARADO v. GONZALES 2899
detainees were being interrogated for crimes or for

reasons other than their connection with the Shining

Path. 

Miranda appealed to the BIA, asserting that under

Fedorenko v. United States, 449 U.S. 490 (1981), the IJ used

the wrong criteria to determine whether Miranda’s translation

services amounted to assistance in persecution. He also contended that he was an officer of the Civil Guard carrying out

his duties in the midst of a civil war and, therefore, the alleged

persecutory acts were not “on account of” the suspects’ political opinions, but on account of their participation in an armed

conflict. Under the agency’s streamlining procedures, a BIA

board member determined that Miranda’s appeal did not merit

consideration by a three-member panel and affirmed the

results of the IJ’s decision but not necessarily his reasoning.

See 8 C.F.R. § 1003.1(e)(4); Falcon Carriche v. Ashcroft, 350

F.3d 845, 849 (9th Cir. 2003). 

I

Chevron Deference

When a case is streamlined, the BIA issues a form order

indicating that “[t]he decision below is . . . the final agency

determination.” 8 C.F.R. § 1003.1(e)(4)(ii). We therefore

review the IJ’s opinion in this case. Falcon Carriche, 350

F.3d at 849. The IJ’s factual findings “are conclusive unless

any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

With respect to the IJ’s legal determinations, the government argues that we must apply the deferential review prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Chevron specifies that:

When a court reviews an agency’s construction of

the statute which it administers, it is confronted with

2900 MIRANDA ALVARADO v. GONZALES
two questions. First, always, is the question whether

Congress has directly spoken to the precise question

at issue. If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the

agency, must give effect to the unambiguously

expressed intent of Congress. If, however, the court

determines Congress has not directly addressed the

precise question at issue, the court does not simply

impose its own construction on the statute, as would

be necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or

ambiguous with respect to the specific issue, the

question for the court is whether the agency’s answer

is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). Chevron deference, however, does not apply to all statutory interpretations issued by

agencies; certain criteria, discussed below, must be met. See

United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). 

[1] We have referred to the Chevron doctrine in the context

of reviewing a statutory interpretation rendered by an IJ,

rather than the BIA. We have not had occasion, however, to

apply the second, deferential prong of Chevron where, as in

this case, there is no statutory interpretation adopted by the

BIA. 

In Avendano-Ramirez v. Ashcroft, 365 F.3d 813 (9th Cir.

2004), for example, we reviewed an IJ opinion that included

an interpretation of the INA, which the BIA affirmed under

the same streamlining procedure used here. Id. at 815. We

noted that “of course, the usual Chevron rules apply” and

summarized those rules, including a statement of when Chevron deference applies. Id. at 816 (footnote omitted). We proceeded to analyze the statutory question at issue, however,

exclusively under prong one of Chevron, concluding that

“Congress has spoken quite clearly.” Id. at 819. We did not

consider whether a single IJ’s statutory interpretation is entiMIRANDA ALVARADO v. GONZALES 2901
tled to judicial deference as an agency interpretation. See also

Acosta v. Gonzales, No. 04-72682, 2006 WL 408206, *1, *2

n.4 (9th Cir. Feb. 23, 2006) (reciting the Chevron framework

before concluding that “an agency is not owed deference

when the issue is the interpretation of Circuit law rather than

the statute”). 

Similarly, while explaining the standard of review in

Zahedi v. INS, 222 F.3d 1157 (9th Cir. 2000), we stated that

“[w]e owe deference to legal decisions rendered by the BIA

and IJ under the rubric of Chevron.” Id. at 1162 (citing INS

v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). Zahedi did

not, however, address any statutory interpretation by the BIA

or the IJ. Instead, it dealt only with the application of established legal concepts to the facts of the case. For that reason,

and also because the BIA in Zahedi “adopted” the IJ’s decision, id., there was no reason to consider the degree of deference owed to IJs’ statutory interpretations. 

Here, as the government recognizes, the statute does not

spell out what is meant by “assist[ing], or otherwise participat[ing]” in the persecution of others. For that reason, the

government’s arguments supporting the denial of Miranda’s

petition for review hinge on the assertion that we must defer

under prong two of Chevron to the IJ’s interpretation of the

pertinent statutory provisions as including Miranda’s actions

with regard to Shining Path members. We must therefore

determine whether an IJ’s statutory interpretations are entitled

to Chevron deference under the agency’s streamlining regulation. We conclude that they are not. 

[2] Recent Supreme Court case law has developed “the limits of Chevron deference owed to administrative practice in

applying a statute.” Mead, 533 U.S. at 226. Deference to

administrative rulings is appropriate only if “the agency interpretation claiming deference was promulgated in the exercise

of” congressionally-delegated authority “to make rules carrying the force of law.” Id. at 226-27. Congress has generally

2902 MIRANDA ALVARADO v. GONZALES
delegated authority to the Attorney General to interpret immigration statutes, see 8 U.S.C. §§ 1103(a)(1), 1158(d)(5)(B),

and, as we develop below, a considered, precedential statutory

interpretation adopted by the Attorney General or his delegatee, the BIA, is entitled to Chevron deference as an interpretation that has “the force of law.” An individual IJ’s

statutory interpretation, summarily affirmed by the BIA under

the streamlining procedure, does not, however, result in a statutory interpretation that carries the “force of law.” 

Mead declined to apply Chevron deference when agency

rulings had no “lawmaking pretense” and did not bind third

parties. 533 U.S. at 233. Our cases applying Mead treat the

precedential value of an agency action as the essential factor

in determining whether Chevron deference is appropriate. See

High Sierra Hikers Ass’n v. Blackwell, 390 F.3d 630, 648 (9th

Cir. 2004) (denying Chevron deference when agency was

“not acting with the force of law . . . , not acting in a way that

would have precedential value for subsequent parties.”); Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051,

1067 (9th Cir. 2003) (en banc) (denying Chevron deference

when agency action was “not an interpretation of a statute that

will have the force of law generally for others in similar circumstances”); Hall v. EPA, 273 F.3d 1146, 1156 (9th Cir.

2001) (“Interpretations of the Act set forth in such nonprecedential documents are not entitled to Chevron deference.”). True to these principles, we have stated in the immigration context that Chevron deference is appropriate when

the BIA “ ‘intended to issue an interpretation’ of a statute it

enforces.” Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.

2004) (citing Hernandez v. Ashcroft, 345 F.3d 824, 839 n.13

(9th Cir. 2003)). 

[3] Where the BIA simply affirms the results of an IJ’s

decision without issuing its own opinion, let alone offering its

own statutory analysis or indicating any intent to create precedent that will bind other IJs or itself, the Mead test is not met.

After such an affirmance, another IJ could reach the opposite

MIRANDA ALVARADO v. GONZALES 2903
conclusion without violating any established agency position.

The IJ’s opinion is just that — the opinion of a single IJ, without precedential value and without the imprimatur of the

Attorney General or the Attorney General’s delegatee, the

BIA. See 8 C.F.R. § 1003.1(d)(1) (delegating the Attorney

General’s statutory interpretation authority only to the BIA).

Such an individual IJ’s statutory interpretation is not precedential under the Attorney General’s regulations. See id.

§§ 103.3(c) (listing types of precedential decisions);

103.37(g) (same). Just as the tariff ruling in Mead was issued

without notice and comment procedures, was not published,

and could be modified without notice and comment, 533 U.S.

at 223, an IJ’s ruling is issued without the procedures required

for a precedential BIA opinion, see 8 C.F.R. § 1003.1(g)

(describing procedures), is not published, and could be contradicted by another IJ or by the BIA in a later opinion.

The sheer number of IJ decisions underscores our conclusion that they do not carry the force of law and are thus not

entitled to Chevron deference. The Supreme Court has

observed that: “Any suggestion that rulings intended to have

the force of law are being churned out at a rate of 10,000 a

year at an agency’s 46 scattered offices is simply selfrefuting.” Mead, 533 U.S. at 233. The same rationale applies

to IJ decisions. IJs working at 53 immigration courts located

throughout the United States issue hundreds of thousands of

decisions annually — more than 170,000 in 2002 alone. OFFICE

OF PLANNING AND ANALYSIS, EXECUTIVE OFFICE OF IMMIGRATION

REVIEW, U.S. DEP’T OF JUSTICE, FY 2004: STATISTICAL YEAR

BOOK B1, D1, available at http://www.usdoj.gov/eoir/

statspub/fy04syb.pdf (Mar. 2005). The same conclusion

applies if we consider only those IJ decisions summarily

affirmed by the BIA under the streamlining regulation. Those

cases have numbered in the thousands per month since the

streamlining regulation went into effect in 2002. See COMM.

ON IMMIGRATION POLICY, PRACTICE AND PRO BONO, AMERICAN

BAR ASSOCIATION, BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT, app. 24

2904 MIRANDA ALVARADO v. GONZALES
(2003), available at http://www.dorsey.com/files/upload/

DorseyStudyABA_8mgPDF.pdf. 

In some circumstances, of course, we do apply Chevron

deference to the legal interpretations of the INA by the Attorney General and his delegatees. In INS v. Aguirre-Aguirre,

526 U.S. 415 (1999), for instance, the Supreme Court applied

Chevron deference where the BIA and the Attorney General

explicitly adopted a particular statutory interpretation, id. at

424, and where the BIA, rather than an individual IJ, used its

power granted by the Attorney General to “give[ ] ambiguous

statutory terms concrete meaning through a process of caseby-case adjudication.” Id. at 425 (internal quotation marks

omitted). See also Shivaraman v. Ashcroft, 360 F.3d 1142,

1145 (9th Cir. 2004) (“We review de novo an agency’s construction of a statute that it administers, subject to established

principles of deference.”); Ghaly v. INS, 58 F.3d 1425, 1429

(9th Cir. 1995) (noting that “[t]he Board’s purely legal interpretations of the Act are reviewed de novo, but are generally

entitled to deference under Chevron”). 

Neither of those conditions is present when the BIA affirms

an IJ’s decision without opinion under the streamlining regulations. In such cases, the BIA does not explicitly adopt a statutory interpretation.4

 Indeed, we do not know on what

4There are cases in which an IJ’s decision will simply apply BIA precedent that is subject to Chevron deference. See, e.g., Damko v. INS, 430

F.3d 626, 634 n.13 (2d Cir. 2005) (“[T]he IJ did not engage in independent statutory construction, but rather relied on the BIA’s prior construction of the INA to which we, in turn, accord deference.”). In its thirteen

lines of argument and three footnotes, the government’s brief does not cite

any agency decisions to which it asks us to defer. A subsequent precedential opinion by the Attorney General, In re A-H-, 23 I. & N. Dec. 774

(A.G. 2005), does discuss the persecutor bar here at issue. A-H-’s factual

posture differs from the one before us, however, in that the Attorney General addressed the relief applications of “a self-proclaimed leader-in-exile

of the Islamic Salvation Front of Algeria.” Id. at 775. Accordingly, the

focus of the Attorney General’s analysis was on the proximity of a leader

MIRANDA ALVARADO v. GONZALES 2905
grounds the BIA decided the case, because its affirmance “approves the result reached in the decision below [, but] does

not necessarily imply approval of all of the reasoning of that

decision.” 8 C.F.R. § 1003.1(e)(4)(ii). At the time relevant to

this case, Congress delegated plenary authority to the Attorney General to enforce the INA. See 8 U.S.C. § 1103(a)

(2000). The statute empowered the Attorney General to establish regulations to carry out that statutory delegation and

granted him supervisory authority over INS employees. Id.

§ 1103(a)(2)-(3). Pursuant to those statutory powers, the

Attorney General granted the BIA authority to issue precedential decisions binding on all IJs. See 8 C.F.R. § 1003.1(d)(1).

Rather than exercise the BIA’s power under 8 C.F.R.

§ 1003.1(d)(1), cf. Aguirre-Aguirre 526 U.S. at 425 (citing the

regulatory antecedent of § 1003.1(d)(1), 8 C.F.R. § 3.1(d)(1)

(1998)), however, a single BIA member deciding to streamline a case only exercises his or her power to decide if “[t]he

issues on appeal are squarely controlled by existing” precedent or “are not so substantial that the case warrants the issuance of a written opinion.” 8 C.F.R. § 1003.1(e)(4)(i). 

Under these circumstances, an IJ decision, although presented as the final agency determination to be reviewed in

federal court, is not legally relevant to any future decisionmaking, including by the very IJ who issued it. See Lin v. U.S.

Dep’t of Justice, 416 F.3d 184, 190 (2d Cir. 2005) (“Absent

the power to issue binding decisions, IJs cannot, themselves,

be said to possess the requisite ability to issue, on behalf of

the Attorney General, a ‘rule’ carrying the force of law —

to persecutory acts. A-H- held that “[t]he plain meaning of the relevant

words in the statute is broad enough to encompass aid and support provided by a political leader to those who carry out the goals of his group,

including statements of incitement or encouragement and actions that

result in advancing the violent activities of the group.” Id. at 784. This precise holding of A-H- is not here relevant; the more general principles

enunciated in A-H concern personal culpability overall and are fully consistent with our prior case law, as developed below. 

2906 MIRANDA ALVARADO v. GONZALES
because one of the hallmarks of a legal ‘rule’ is that it will,

in fact, apply equally in all cases of a similar kind.”).5“[W]ere

we to accord Chevron deference to non-binding IJ statutory

interpretations, we could find ourselves in the impossible

position of having to uphold as reasonable on Tuesday one

construction that is completely antithetical to another construction we had affirmed as reasonable the Monday before.

Such a scenario cannot be countenanced in a system of law.”

Id.; see also id. at 191 (“There is . . . no reason to believe that

an IJ’s summarily affirmed decision contains the sort of

authoritative and considered statutory construction that Chevron deference was designed to honor.”). 

Given the features of the streamlining regime and its differences from the scheme given deference in Aguirre-Aguirre,

we conclude that Aguirre-Aguirre does not control the question of Chevron’s applicability to a streamlined case. The Second Circuit has reached the same conclusion, noting that “we

decline to extend Chevron deference to any statutory construction of the INA set forth in a summarily affirmed IJ opinion.” Id.; see also Ashton v. Gonzales, 431 F.3d 95, 97 (2d

Cir. 2005); cf. Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d

Cir. 2004) (“[D]eferring to the reasoning of an IJ from which

the BIA would be free to depart in other cases would seem

highly problematic.”). 

[4] In sum, we hold that Chevron deference does not apply

5

Inconsistent results can, however, implicate constitutional concerns.

See generally Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir. 2004)

(“The INS must give each asylum case individualized scrutiny, but it is a

foundation of the rule of law that similarly situated individuals be treated

similarly. . . . [W]e have previously noted inconsistent treatment of asylum

applicants. See Wang v. Ashcroft, 341 F.3d 1015, 1019 n. 2 (9th Cir. 2003)

(greeting with incredulity the INS’s assertion that a reviewing court need

not concern itself with the inconsistency [created] where the INS denied

asylum to a woman subjected to coercive population control methods, but

granted asylum to her husband on the basis of the woman’s experience).”).

MIRANDA ALVARADO v. GONZALES 2907
to an IJ’s statutory interpretation summarily affirmed by the

BIA.6

II

The Persecutor Exception

[5] Under the INA, any person who has “ordered, incited,

assisted, or otherwise participated in” persecution of any person on account of a protected ground is ineligible for asylum

and withholding of removal. 8 U.S.C. §§ 1101(a)(42),

1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also 8 C.F.R.

§ 208.13(c)(2)(i)(E) (mandatory denials).7 The INA does not

define “persecution,” but our case law defines it as “the infliction of suffering or harm upon those who differ . . . in a way

regarded as offensive.” Fisher v. INS, 79 F.3d 955, 961 (9th

Cir. 1996) (en banc) (internal quotation marks and citation

omitted). Miranda challenges the denial of relief in his case

on two separate grounds: First, he argues that the IJ used the

wrong criteria to determine whether his role as a translator

during interrogations in which detainees were tortured constitutes assistance in persecution. Second, he argues that even if

his translation work does amount to assistance, the persecution was not on account of political opinion. We address each

argument in turn. 

6We leave for another day the question of whether “individual IJ decisions may be entitled to the lesser form of deference established under

Skidmore v. Swift & Co., 323 U.S. 134 (1944), to the extent that such decisions possess ‘those factors which give [the agency’s interpretation] power

to persuade, if lacking power to control.’ Id. at 140.” Lin, 416 F.3d at 191

(noting but not deciding the question); see also Zhang v. Gonzales, 426

F.3d 540, 544 (2d Cir. 2005) (“An IJ’s interpretation of ambiguous provisions of the INA is entitled no more deference than the inherent persuasiveness of the IJ’s view commands.”). We need not decide whether

Skidmore deference applies to the IJ’s brief reasoning in this case. As will

appear, such deference would not affect our analysis. 

7Deferral of removal under the Convention Against Torture (CAT) is

not so precluded. See, e.g., Singh v. Gonzales, 417 F.3d 736, 738 n.1 (7th

Cir. 2005). Miranda, however, has not applied for CAT relief. 

2908 MIRANDA ALVARADO v. GONZALES
A. Assistance in persecution

In the opinions that interpret and give shape to the

persecution-of-others exceptions under the INA, this court

and other circuit courts have turned for guidance to a Supreme

Court ruling interpreting a similarly-worded statute passed at

the close of World War II. See Fedorenko v. United States,

449 U.S. 490 (1981). Fedorenko involved denaturalization,

not asylum proceedings. Fedorenko had been granted displaced person status after World War II. It was later discovered that, while serving as a Russian soldier in 1941,

Fedorenko was captured by Germany and subsequently

worked as a prison guard at Treblinka, a Nazi death camp in

Poland. The government sought to strip him of citizenship and

expel him, relying on the persecutor exception to refugee status for “individuals who had ‘assisted the enemy in persecuting [civilians]’ ” contained in the Displaced Persons Act of

1948 (DPA), Pub. L. No. 80-774, 62 Stat. 1009 (1948). 

Fedorenko held that, under the terms of the DPA the kind

of acts Fedorenko perpetrated were central to its analysis. See

449 U.S. at 512 n.34 (“focusing on whether particular conduct

can be considered assisting in the persecution of civilians”).

In a somewhat cryptic footnote that has since become the

principal guide to interpreting persecutor exceptions generally, see, e.g., Singh v. Gonzales, 417 F.3d 736 (7th Cir.

2005), the Court stated:

[A]n individual who did no more than cut the hair

of female inmates before they were executed cannot

be found to have assisted in the persecution of civilians. On the other hand, there can be no question that

a guard who was issued a uniform and armed with

a rifle and a pistol, who was paid a stipend and was

regularly allowed to leave the concentration camp to

visit a nearby village, and who admitted to shooting

at escaping inmates on orders from the commandant

of the camp, fits within the statutory language about

MIRANDA ALVARADO v. GONZALES 2909
persons who assisted in the persecution of civilians.

Other cases may present more difficult line-drawing

problems but we need decide only this case.

449 U.S. at 512 n.34. Fedorenko thus indicated a continuum

of conduct against which an individual’s actions must be evaluated so as to determine personal culpability. 

Applying Fedorenko to the same statutory language here at

issue, we recently considered the persecutor exception to the

asylum and withholding of removal provisions. Vukmirovic v.

Ashcroft, 362 F.3d 1247 (9th Cir. 2004), held that an IJ failed

to conduct a sufficiently particularized evaluation to determine the petitioner’s responsibility for persecution committed

by other Bosnian Serbs. Id. at 1252. We emphasized two

requirements for establishing culpability under the persecutor

exception. First, relying on Laipenieks v. INS, 750 F.2d 1427

(9th Cir. 1985), which considered similar statutory language,

we stated that “individual accountability must be established.”

Vukmirovic, 362 F.3d at 1252.8 We went on, secondly, to

evaluate the surrounding circumstances, including whether

the alleged persecutor was acting in self-defense, to determine

whether the applicant had assisted or otherwise participated in

persecution. Id. at 1252-53. Vukmirovic’s petition for review

was granted because we determined that he did act in selfdefense and that, accordingly, his acts harmful to Croats did

not constitute persecution. Id. at 1253. 

Also informative is Hernandez v. Reno, 258 F.3d 806 (8th

Cir. 2001), which concerned a Guatemalan man forcibly

8Laipenieks addressed former 8 U.S.C. § 1251(a)(19) and held that the

“ordered, incited, assisted, or otherwise participated in the persecution of

any person” standard “requires that . . . the evidence establish[ ] that the

individual in question personally ordered, incited, assisted, or otherwise

participated in the persecution of individuals.” 750 F.2d at 1431 (emphasis

added); see also id. at 1431-32 (“[A]ctive personal involvement in persecutorial acts needs to be demonstrated . . . . [P]roof of personal active

assistance or participation in persecutorial acts [is required].”). 

2910 MIRANDA ALVARADO v. GONZALES
recruited by guerrillas and ordered, under pain of death, to

shoot at peasants. Hernandez held that “[u]nder Fedorenko, a

court faced with difficult ‘line-drawing problems’ should

engage in a particularized evaluation in order to determine

whether an individual’s behavior was culpable to such a

degree that he could be fairly deemed to have assisted or participated in persecution.” Id. at 813; see also Vukmirovic, 362

F.3d at 1252 (quoting from this passage and “agree[ing] with

the Eighth Circuit”); cf. In re A-H-, 23 I. & N. Dec. 774, 785

(A.G. 2005) (citing Hernandez with approval for the proposition that “[i]t is appropriate to look at the totality of the relevant conduct in determining whether the bar to eligibility

applies.”).9 As in Fedorenko, the length of time over which

the person was involved in the acts, the kind of threats used

to compel assistance, and the efforts undertaken to escape (or

the lack thereof in Fedorenko’s case) were all significant,

according to the Hernandez court, in weighing individual culpability. Id. at 813-14. But cf. Bah v. Ashcroft, 341 F.3d 348,

351 (5th Cir. 2003) (per curiam) (holding that “the alien’s

personal motivation is not relevant” where Bah joined an

9The Eighth Circuit observed that: 

The facts here are very different from those in Fedorenko.

Although Fedorenko was free to leave Treblinka from time to

time, he never tried to escape. Hernandez was never given any

leave, and he escaped at his first opportunity. Fedorenko served

at Treblinka for over a year, but Hernandez spent only 20 days

as a prisoner of ORPA. Unlike Fedorenko, Hernandez never

received any payment or reward from ORPA. Hernandez risked

his life by articulating his disagreement with ORPA’s violent tactics, by disobeying his commander’s orders to shoot directly at

the villagers, and by fleeing from his captors into Mexico. While

Fedorenko and his fellow Ukranians far outnumbered the Germans at Treblinka, Hernandez and two other forced recruits were

isolated within a group of fifty guerrillas. And significantly, Hernandez himself revealed his involvement with ORPA to United

States officials whereas Fedorenko omitted important information

on his entry documents and covered up his connection with Treblinka. 

Hernandez, 258 F.3d at 814. 

MIRANDA ALVARADO v. GONZALES 2911
insurgent group in Sierra Leone under threat of death and

three times attempted to escape).10

[6] Thus, determining whether a petitioner “assisted in persecution” requires a particularized evaluation of both personal

involvement and purposeful assistance in order to ascertain

culpability. See Vukmirovic, 362 F.3d at 1252; Hernandez,

258 F.3d at 813. This standard does not require actual

“trigger-pulling,” see In re A-H-, 23 I. & N. Dec. at 784 (stating that the persecutor bar “do[es] not require direct personal

involvement in the acts of persecution” (emphasis added)),

but “[m]ere acquiescence or membership in an organization,”

is insufficient to satisfy the persecutor exception. See Vukmirovic, 362 F.3d at 1252 (internal quotation marks omitted);

see also Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir.

2004); Matter of Rodriguez-Majano, 19 I. & N. Dec. 811,

814-15 (BIA 1988) (“[M]ere membership in an organization,

even one which engages in persecution, is not sufficient to bar

one from relief, but only [sic] if one’s action or inaction fur10Aside from Bah, courts interpreting the relevant INA provisions have

used caution in applying Fedorenko’s reading of the similarly-worded

DPA to mean that “an individual’s service as a concentration camp armed

guard — whether voluntary or involuntary — ma[kes] him ineligible [for

relief].” 449 U.S. at 512 (emphasis added). See Xie v. INS, 434 F.3d 136,

141, 144 (2d Cir. 2006) (concluding that “we find it unlikely that the

phrase ‘assisted in persecution’ implicitly includes a voluntariness requirement in one statute but not the other” but assessing the petitioner’s voluntariness nonetheless and “emphatically” leaving open the possibility that

redemptive behavior may be relevant to “whether an applicant has assisted

in persecution”); Hernandez, 258 F.3d at 814 (faulting the BIA for failing

to “consider Hernandez’s uncontroverted testimony that his involvement

with ORPA was at all times involuntary and compelled by threats of death

and that he shared no persecutory motives with the guerrillas”). As will

appear, this case does not require us to decide whether even actions that

result from direct, immediate, and extreme “physical[ ] or psychological[ ]” compulsion, see Xie, 434 F.3d at 143, or are accompanied by frequent redemptive behavior such as fostering escape attempts, can be

sufficiently culpable to preclude asylum and withholding of removal eligibility. 

2912 MIRANDA ALVARADO v. GONZALES
thers that persecution in some way.”).11 Although such membership could signal support for the persecutorial aims of

others, it does not suffice, standing alone, to establish the requisite personal assistance or participation in persecutorial acts.

[7] This most basic requirement of personal involvement is

met here. Miranda’s actions went beyond mere membership,

as he was undisputedly a regular part of interrogation teams

who questioned Shining Path members. He was present and

active during the alleged persecution. See Xie v. INS, 434 F.3d

136, 143 (2d Cir. 2006) (distinguishing between active and

passive conduct). 

11Laipenieks, which emphasized the need for precision along this range

of personal involvement, has on occasion been read to require a persecutor

personally to inflict injury, rather than to behave in some capacity that

made it possible for others to engage in brutal acts. See, e.g, United States

v. Reimer, 356 F.3d 456, 462 n.6 (2d Cir. 2004) (collecting cases on the

two sides of this supposed divide); Hammer v. INS, 195 F.3d 836, 844 (6th

Cir. 1999) (“To the extent that those cases [including Laipenieks] would

require the government to prove the alien’s personal participation or active

assistance in specific acts of brutality . . . we decline to follow them.”);

Schellong v. INS, 805 F.2d 655, 661 (7th Cir. 1986) (“Insofar as these

cases [including Laipenieks] hold that personal involvement in atrocities

is necessary to have assisted in persecution . . . they conflict with

Fedorenko.”). In Hammer, “[t]he BIA found that [the petitioner] served

willingly as an armed SS concentration camp guard,” 195 F.3d at 844, and

in Schellong the petitioner did “not dispute that he served as a concentration camp guard at Sachsenburg and trained and supervised guards at

Dachau.” 805 F.2d at 661; see also Kulle v. INS, 825 F.2d 1188, 1192 (7th

Cir. 1987) (indicating that the petitioner was armed although “Kulle insists

he did not have authority to shoot prisoners attempting escape”). The principle Laipenieks established with respect to personal involvement in persecution, however, was simply that Fedorenko, the statutory language, and

its legislative history require more than “[m]ere acquiescence or membership in a [persecutory] organization.” 750 F.2d at 1431-32. Beyond that,

Laipenieks made a fact-specific determination that “the government’s evidence failed to establish deportability,” id. at 1437, and did not impose a

rule that personal infliction of harm is necessary to establish assistance or

participation in persecution directly perpetrated by others. Nothing in

Laipenieks, consequently, is inconsistent with the results reached in cases

such as Hammer, Schellong, and Kulle. 

MIRANDA ALVARADO v. GONZALES 2913
Fedorenko’s “continuum of conduct” footnote guides us in

the next step of the analysis. Whether Miranda’s assistance

was material is measured by examining the degree of relation

his acts had to the persecution itself: How instrumental to the

persecutory end were those acts? Did the acts further the persecution, or were they tangential to it? Cutting the hair of a

death camp prisoner bound for execution is a ghastly act.

Nevertheless, the hair cutting was in no way essential to the

ensuing execution, or even in furtherance of it; nor would cutting the hair of prisoners legitimately confined amount to persecution, standing alone. Thus, the hair cutters did not “assist

or otherwise participate in” persecution. 

On the other hand, the camp guard who personally shoots

at escapees participates directly in a persecutory act: Had he

not shot, that particular act would not have happened. More

to the present point, guards are essential to the orderly functioning of death camps, even when they do not shoot anyone.

The continuum, as these examples show and as the Court in

Fedorenko noted, is not an exact or absolute one; difficult

line-drawing questions will always persist. 

[8] In this case, the IJ stated that Miranda “was a necessary

part of the interrogation. Without his services as a Quechua

interpreter, the interrogations could not proceed. With his services, they did proceed.” Though conclusory, the IJ’s analysis

goes to the heart of the Fedorenko continuum: Miranda was

not just engaged in acts peripheral to persecution. Rather, he

performed an integral role in facilitating the persecution. In

his role as interpreter, Miranda materially aided the persecution process, by translating the questions and answers that

were interspersed with electric shock torture. Without the

translation, there would have been no reason for the torture to

occur as it did, as its point was to elicit information. Thus,

Miranda was not simply a bystander with regard to the direct

acts of persecution. His assistance and participation were in

furtherance of the particular form of persecution that

occurred. See id. (distinguishing between conduct that “had

2914 MIRANDA ALVARADO v. GONZALES
direct consequences for the victims” and conduct that “was

tangential to the acts of oppression”). 

Moreover, Miranda makes no colorable claim that his

actions were motivated by self-defense or similar extenuating

circumstances, as in Vukmirovic. The IJ properly focused on

the frequency and length of time that Miranda worked as a

translator, finding that Miranda translated in interrogations

where torture took place for six to seven years, two to three

times per month. The IJ also considered that Miranda did not

seek to resign for six years, and that there is no evidence in

the record that dire physical consequences — as distinct from

economic and career consequences — would have resulted

from simply refusing to continue in the Civil Guard. See id.

(“[N]othing in the record indicates that Xie did not have the

ability to quit his job as a driver at any time in order to avoid

the persecution of women that was part of that job. His reason

for not doing so appears to have been the loss of wages he

would incur. Xie has never suggested that he was physically

or psychologically coerced into working for the county as a

driver.” (citation omitted)); Singh, 417 F.3d at 740 (emphasizing “the repetition of the conduct over an extended period”

and noting that during Singh’s “lengthy term of employment,

he refused to quit the police force due to his need for a steady

paycheck and his apparent desire to avoid searching for work

with a different employer”). The IJ noted that Miranda had

qualms about his participation in the interrogations, and that

he at times urged the torturers to lessen the amount of electric

current applied. But Miranda did so, by his own account, only

when the torture became so extreme that it became difficult

for the victims to speak. Moreover, Miranda made little effort

to avoid assisting in the interrogations. Cf. Ofosu v. McElroy,

98 F.3d 694, 701 (2d Cir. 1996) (commenting that potentially

relevant factors are whether a petitioner “rejected the repressive activities in which he was involved, or put himself at risk

in order to protect those who were persecuted”); see also Xie,

434 F.3d at 144 (“[U]nlike Ofosu, Xie offered no evidence

that he was unaware of the repressive nature of the duties he

MIRANDA ALVARADO v. GONZALES 2915
undertook as part of his voluntary employment. Xie assisted

in persecution until there were favorable circumstances for

him to cease doing so.”). Consequently, were we to assume

that, as Hernandez posits, there are, after Fedorenko, some

extreme situations so coercive that, on a totality of circumstances analysis, an individual cannot be said to have “assisted or otherwise participated in” persecution he was forced

to inflict, we would conclude that this case does not present

such an extraordinary situation. 

[9] The record before us presents a case perhaps at the margin of the culpability required under the statute. Miranda was

not in a position of authority with regard to planning or inciting the interrogations; he did not directly apply the electric

shocks or beatings; he did not supply the physical compulsion

that allowed the torture to occur, as do armed guards; and he

did not, forcibly or otherwise, arrest the victims or bring them

to the place of torture. Nonetheless, as the IJ found, his services were integral to the particular form of persecution that

occurred. We conclude that the IJ’s determination that the

necessary elements of Miranda’s personal assistance in acts

that furthered the persecution of others have been established

is supported by substantial evidence. Miranda materially

assisted the persecution of suspected Shining Path members

and has presented no legally cognizable justification for his

complicity. 

B. On account of political opinion 

As the IJ applied the correct, established legal standards

with regard to this second issue of nexus between the persecution and a protected ground by inquiring into whether “the

detainees were being interrogated for crimes or for reasons

other than their connection with the [highly ideological] Shining Path,” we proceed to review his factual findings for substantial evidence. See Mohammed v. Gonzales, 400 F.3d 785,

791 (9th Cir. 2005). 

2916 MIRANDA ALVARADO v. GONZALES
Evidence presented to the IJ indicated that Miranda assisted

in the persecution of others on account of their political opinion. Specifically, Miranda testified that those interrogated and

tortured were members or suspected members of the Shining

Path; that “interrogation” was different from questioning a

possible suspect; that “[i]nterrogating is asking people where

is a certain group, what do they do, investigating their bases,

finding out who their boss is, where he lives, who he lives

with;” and that of those interrogated “[a]ll of them were only

Shining Path.”

12 Because these statements were sufficient to

raise the inference that individuals were selected for interrogation on the basis of their affiliation or suspected affiliation

with an opposition group, not because they themselves were

suspected of criminal activity, the burden of proof became

Miranda’s to show by a preponderance of the evidence that

the persecution was not on account of political opinion. See

8 C.F.R. §§ 208.13(c)(2)(ii) (stating with respect to asylum

that: “If the evidence indicates that one of the above grounds

apply [sic] to the applicant, he or she shall have the burden

of proving by a preponderance of the evidence that he or she

did not so act.”); 208.16(d)(2) (“If the evidence indicates the

applicability of one or more of the grounds for denial of withholding enumerated in the Act, the applicant shall have the

burden of proving by a preponderance of the evidence that

such grounds do not apply.”). 

Our case law suggests at least two ways Miranda could

have met his burden of disproving that he assisted in the persecution of others on account of their political opinion. First,

Miranda could have presented evidence that these interrogations were part of legitimate criminal prosecutions. By “legitimate,” our case law refers to a prosecution that was not

tainted, even in part, by impermissible motives corresponding

to grounds protected under the INA. See Borja v. INS, 175

F.3d 732, 736 (9th Cir. 1999) (en banc) (holding that persecu12The last statement was made in reply to the question “How many of

those interrogations were interrogations of suspected terrorists?” 

MIRANDA ALVARADO v. GONZALES 2917
tion is on account of a protected ground if it is “motivated, at

least in part, by an actual or implied protected ground” (internal quotation marks and citation omitted)). 

[10] We conclude that substantial evidence supports the

IJ’s determination that “there is no indication in the record

that the detainees were being interrogated for crimes or for

reasons other than their connection with the Shining Path.”

Miranda did not establish that being a member of the Shining

Path was a criminal offense in Peru, or that these actual or

suspected members were under investigation for carrying out

specific terrorist acts or were subsequently prosecuted for

their crimes. We have repeatedly held that persecution “in the

absence of any legitimate criminal prosecution, conducted at

least in part on account of political opinion” constitutes persecution on account of political opinion, even if the persecution

served intelligence-gathering purposes. See Ratnam v. INS,

154 F.3d 990, 996 (9th Cir. 1998); see also Ndom v. Ashcroft,

384 F.3d 743, 755 (9th Cir. 2004); Blanco-Lopez v. INS, 858

F.2d 531, 534 (9th Cir. 1988). Miranda’s law enforcement

contention therefore fails. 

[11] The second way Miranda attempts to disprove his

assistance of persecution on account of political opinion is to

argue that the interrogations and torture were part of generalized civil discord, rather than politically-motivated persecution. Cf. Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.

2000) (“[Petitioners] did not establish that the attack was anything more than an act of random violence during a period of

significant strife.”). The BIA in Matter of Fuentes, 19 I. & N.

Dec. 658 (BIA 1988), held that the dangers faced by a Salvadoran policeman from guerrillas during that country’s political struggles did not constitute persecution on account of

political opinion: “Such dangers are perils arising from the

nature of their employment and domestic unrest rather than

‘on account of’ immutable characteristics or beliefs within the

scope of sections 101(a)(42)(A) or 243(h) of the [INA].” Id.

at 661; see also Cruz-Navarro, 232 F.3d at 1028-29. The con2918 MIRANDA ALVARADO v. GONZALES
verse is also true: Dangers faced by those associated with or

suspected of being associated with an armed group ideologically opposed to the government may reflect the general

unrest precipitated by the conflict rather than persecution

premised on political opinion. See Rodriguez-Majano, 19 I. &

N. Dec. at 815-16 (“In analyzing a claim of persecution in the

context of a civil war, one must examine the motivation of the

group threatening harm . . . . Harm resulting from generalized

civil strife is not persecution. Martinez-Romero v. INS, 692

F.2d 595 (9th Cir. 1982) . . . . [T]hose who inflict such harm

are not engaging in persecution.”). Thus, injury inflicted by

opposing political or other groups on each other during a civil

conflict will not necessarily equate to persecution on account

of one of the INA’s protected grounds. 

[12] At the same time, “wide-spread violence and detention

cannot override record evidence that persecution occurred at

least in part as a result of an applicant’s protected status.”

Ndom, 384 F.3d at 752. Our asylum cases have therefore not

hesitated to impute motivation on account of political opinion

in factually-compelling circumstances where someone fighting on one side of a politically-based civil war persecutes

someone affiliated with the group fighting on the other side.

See, e.g., Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999)

(en banc) (“Briones’s activity as a confidential informer who

sided with the Phillipine military in a conflict that was political at its core certainly would be perceived as a political act

by the group informed upon.”); Gomez-Saballos v. INS, 79

F.3d 912, 917 (9th Cir. 1996) (“To those imprisoned, [the

petitioner] clearly represented the person in charge of their

political incarceration. The prisoners represented an organized

political force in opposition to the political views of the

Sandinistas. The death threats to him by those imprisoned

cannot be separated from his political position and the obvious perception to the prisoners that, as the person in charge

of their custody, he adhered to political beliefs in opposition

to their own.”). Vukmirovic emphasized that it is untenable to

impose a blanket exclusion on asylum-seekers who come

MIRANDA ALVARADO v. GONZALES 2919
from places beset by civil war and are affiliated in some

respect with one side or the other in the conflict: “[T]he BIA

itself noted in In re Rodriguez-Majano, 19 I. & N. Dec. 811

(BIA 1988), [that] under such an expansive interpretation,

‘members of armed opposition groups throughout the world

would be barred from seeking haven in this country.’ Id. at

816.” 362 F.3d at 1253. Conversely, an asylum-seeker is not

insulated from application of the persecutor exception simply

because his acts sought to further the interests of one side of

a civil conflict. The connection between that conflict and the

asserted persecution must be analyzed carefully. 

[13] On this record, Miranda has not established that the

particular persecution in which he was involved — interrogations involving torture — was in direct opposition to acts of

terrorism or civil strife. As explained by the BIA in

Rodriguez-Majano, “harm which may result incidentally from

behavior directed at another goal, the overthrow of a government or, alternatively, the defense of that government against

an opponent, is not persecution . . . . We would include in this

list [ ] engaging in military actions, the attacking of garrisons,

the burning of cars, and the destruction of other property as

actions outside the limits of the term ‘persecution.’ ” 19 I. &

N. Dec. at 815 (emphasis added)). Unlike the sort of on-thebattlefield conflict discussed in Rodriguez-Majano, torturing

individuals selected for their affiliation with an opposition

group is not inherent in armed conflict,13 any more than is

13Miranda argues that “[i]n the same way that this country has detained

and interrogated suspected Al Quaeda sympathizers, Peru could not afford

to allow Shining Path members to go free irrespective of the fact that there

were no particularized charges of crimes.” This contention begs the question of the persecution at issue, as it avoids addressing the torture Miranda

assisted. Miranda does not advance the argument that torture becomes

lawful in warfare or civil conflict, and there is voluminous authority to the

contrary, notably the Convention Against Torture itself, which Peru signed

in 1985 and ratified in 1988. See Office of the United Nations High

Comm’r for Human Rights, Status of ratification of the Convention

against Torture (Nov. 2, 2004), available at http://www.ohchr.org/english/

2920 MIRANDA ALVARADO v. GONZALES
“ethnic cleansing.” Cf. Knezevic v. Ashcroft, 367 F.3d 1206,

1211-12 (9th Cir. 2004) (explaining that the IJ “miss[ed] the

critical distinction between persons displaced by the inevitable ravages of war . . . and those fleeing from hostile forces

motivated by a desire to kill each and every member of that

group.”). Where, as the record indicates happened here, individuals are singled out at least in part for their political affiliation, rather than for their own actions; detained and thereby

removed from active participation in civil strife; and tortured

to obtain information about the opposition group, the surrounding civil strife does not undermine the conclusion that

the torture is persecution on account of political opinion. See

Ndom, 384 F.3d at 755; Ratnam, 154 F.3d at 996. 

[14] In sum, while the record makes clear that the Shining

Path was a terrorist organization, Miranda’s testimony does

not demonstrate that the particular Shining Path adherents

who were interrogated and tortured were criminal suspects or

armed guerrillas actively engaged in military activity, rather

than individuals known to sympathize with the Shining Path’s

political goals. Substantial evidence therefore supports the

IJ’s determination that Miranda did not meet his burden of

establishing that he did not assist in persecution of others on

account of their political opinion. 

Conclusion

For the reasons given, Miranda’s services as an interpreter

amounted to assistance in persecution. His acts were material

to the interrogations and their accompanying torture, and his

law/cat-ratify.htm. The Convention’s part 1, article 2 states in relevant

part: “No exceptional circumstances whatsoever, whether a state of war or

a threat of war, internal political instability or any other public emergency,

may be invoked as a justification of torture.” Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened

for signature Dec. 10, 1984, pt. 1, art. 2, 1465 U.N.T.S. 85, available at

http://www.unhchr.ch/html/menu3/b/h_cat39.htm. 

MIRANDA ALVARADO v. GONZALES 2921
assistance was personally culpable — that is, engaged in for

reasons other than direct self-defense and unaccompanied by

meaningful attempts at noncompliance or escape. Together,

these elements establish that Miranda is covered by the persecutor exception. As Miranda did not rebut, by a preponderance of the evidence, the indication that his persecution of

suspected Shining Path members was on account of political

opinion, we deny the petition for review. 

PETITION FOR REVIEW DENIED. 

LEAVY, Circuit Judge, concurring: 

I concur in Part II of the opinion. In this relatively straightforward case, the IJ determined that Miranda had “assisted in

the persecution of others . . . on account of their political

opinion” under 8 U.S.C. § 1101(a)(42), and was thus ineligible for asylum and withholding of removal under 8 U.S.C.

§§ 1158(b)(2)(A)(i) and 1231 (b)(3)(B)(i). The BIA “streamlined” the case, affirming the result without an opinion. In

such a case, we review the IJ’s factual determinations for substantial evidence and we review de novo the IJ’s legal conclusions. Reyes-Reyes v. Ashcroft, 384 F.3d 782, 786 (9th Cir.

2004). I concur in the holding that substantial evidence supports the IJ’s factual determination that Miranda persecuted

others on account of their political opinion under the our

interpretation of the applicable statutes. 

The discussion in Part I regarding Chevron deference is

irrelevant to the outcome of this case. Whether we defer or

not to the IJ’s legal conclusion has no effect on the outcome

for Miranda — either way, he does not prevail. We should

reserve the discussion on Chevron deference to a case where

the resolution of this issue is necessary to the decision. 

2922 MIRANDA ALVARADO v. GONZALES