Santos v. Whitaker
San Francisco, CA
Members: Kyle McLean and Paige Adaskaveg
Coaches: Supervising Attorney Tiffany Gates
Description of Issues:

Petitioner Juan Pablo Santos arrived in the United States nearly thirty years ago.  Santos entered the United States near San Diego, California almost thirty years ago in May 1989 and promptly submitted a request for asylum.  More than seven years later, on July 29, 2006, the United States Citizenship and Immigration Services (USCIS) notified Santos of its intent to deny his asylum request.  Santos thereafter retained an immigration attorney, and in November 2007, submitted an application for suspension of deportation or special rule cancellation of removal pursuant to NACARA.   He also later submitted an application for cancellation of removal under § 1229b.  

While Santos’s NACARA application was still pending, the Department of Homeland Security (DHS) charged him with removability and initiated proceedings.  CAR 537; see 8 U.S.C. § 1182(a)(6)(A)(i) (removability for presence without admission).  Santos appeared before the Immigration Judge (IJ) on September 11, 2008, admitted the first two factual allegations in the charging document, and conceded removability.  CAR 537; see also CAR 41.  In the interim, on August 5, 2008, USCIS notified Santos that his NACARA application was being referred to an IJ for decision on the issue of whether Santos is barred from relief as a person who “ordered, incited, assisted, or otherwise participated in the persecution of others” on account of a protected ground.  CAR 264. 

 

While in the army, Santos’s primary responsibility was to protect the electrical grid and bridges from attacks by guerrillas.  In carrying out this responsibility, Santos would detain anyone who was suspected of committing a crime.  If that person was also suspected of being a guerrilla, they would be brought back to the base for questioning.  All other suspected criminals were fined and/or jailed for a period of time, and then released.  

The IJ found that the evidence in the record raises the inference that the persecutor bar may apply in this case and shift the burden to Santos to establish he is not barred from relief under NACARA or § 1229b.

Questions Presented

  1. Whether the BIA’s application of law to the undisputed facts in this case is a mixed question of law and fact which must be reviewed de novo?
  2. Does the evidence in the record raise the inference that the persecutor bar may apply in this case and shift the burden to Santos to establish he is not barred from relief under NACARA or § 1229b?
  3. If the evidence in the record raises the inference that the persecutor bar may apply, does Santos meet his burden of rebutting the presumption that the persecutor bar applies?
Scheduling Contact: Kyle McLean/Paige Adaskaveg (kylemclean11@gmail.com/paigeadaskaveg@uchastings.edu)
Document(s):
DATE AND TIME ROOM JUDGE JUDGE JUDGE JUDGE JUDGE
Thu. February 7
5:30PM - 6:30PM MCR
Fri. February 8
5:30PM - 6:30PM D Tina Nguyen ST
Sun. February 10
12:00PM - 1:00PM M120 ST
Mon. February 11
12:00PM - 1:00PM G ST
Tue. February 12
5:30PM - 6:30PM MC Conf
Wed. February 13
12:00PM - 1:00PM D ST
Thu. February 14
5:30PM - 6:30PM MCR ST VanLandingham, J.
Mon. February 18
12:00PM - 1:00PM M120 ST Ava Agree
Tue. February 19
5:30PM - 6:30PM MC Conf
Wed. February 20
12:00PM - 1:00PM D Tina Nguyen ST Brian Hawkinson
Thu. February 21
5:30PM - 6:30PM MCR
Fri. February 22
5:30PM - 6:30PM MCR
Sat. February 23
12:00PM - 1:00PM G
Sun. February 24
12:00PM - 1:00PM G
Tue. February 26
5:30PM - 6:30PM MC Conf
Thu. February 28
5:30PM - 6:30PM M12
Sat. March 2
12:00PM - 1:00PM MCR
Sun. March 3
12:00PM - 1:00PM D
Tue. March 5
5:30PM - 6:30PM MCR
Thu. March 7
5:30PM - 6:30PM MCR
Sat. March 9
12:00PM - 1:00PM