Court Upholds Denial of Asylum to Salvadoran Politician

Friday, July 8, 2016

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Court Upholds Denial of Asylum to Salvadoran Politician

Judges Say Silva-Pereira, Implicated in 2007 Murders, Was Not Credible in Persecution Claim

By KENNETH OFGANG, Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday upheld immigration officials’ decision to deport a former Salvadoran political figure to Nicaragua.

The panel upheld findings by the Board of Immigration Appeals that Roberto Carlos Silva-Pereira was not credible when he testified about alleged incidents of persecution that he suffered in El Salvador, and that he is not eligible for asylum because he was complicit in the murder of three Salvadorans attending the Central American Parliament in Guatemala in February 2007, along with their driver.

The court also said that the Convention Against Torture does not apply, because there was no evidence Silva would be tortured in Nicaragua, the country to which the immigration judge ordered his removal. The judges declined to consider whether he would be tortured in El Salvador, since he was not ordered returned there.

Arrested by FBI

Silva was arrested in Orange County in October 2007 by FBI agents. El Salvador, whose Congress had lifted his legislative immunity, was seeking his extradition on corruption and money-laundering charges.

He had allegedly become one of El Salvador’s wealthiest men, as his construction business was earning 30 to 40 percent profits off government contracts. The country’s attorney general, however, claimed he had secured contracts through bribery.

He requested asylum, alleging that the charges against him were political in nature. He said he was being persecuted because he had become a “stumbling block” to the Alianza Republicana Nactionalista, or ARENA, political party.

ARENA is a nationalist and conservative party founded in 1980 by defectors from the Partido de Conciliacion National, or PCN. ARENA was led by Roberto D’Aubisson, the reputed head of anti-communist death squads said to have tortured and killed thousands of civilians before and during the Salvadoran Civil War.

Party Switch

Silva testified at his asylum hearing that he first became involved in politics as a member of the leftist Farabundo Marti para la Liberacion National Party, or FMLN. But he switched to the PCN, he said, in order to fight the corruption of ARENA, which was the ruling party at the time.

He claimed that he had been threatened at gunpoint by an ARENA leader over his claim the party was corrupt, was assaulted by police after he visited his wife—who drew a seven-year term on corruption charges related to those against him—in prison, and was beaten by police in his house.

He acknowledged, however, that those incidents were not mentioned in his asylum application. He claimed he forgot to tell his lawyer about them.

Government lawyers also pointed out a timeline discrepancy between his testimony that he entered the United States in January 2007 just a few days after leaving home, and the entry date on his asylum application. He then said he actually exited El Salvador several weeks earlier than he originally indicated, and admitted that he had falsely reported to Salvadoran authorities that he was too sick to attend court, when in fact he was fleeing the country.

The initial ruling by the immigration judge was that he lacked credibility and was ineligible for asylum. The Board of Immigration Appeals, however, said the adverse credibility determination was insufficiently explained and remanded for further consideration.

More Hearings

At additional hearings over a period of several months in 2009, the government presented evidence that, in addition to the Salvadoran charges, Silva had been charged with conspiracy to commit murder in Guatemala.

Eduardo D’Aubisson—a son of Roberto D’Aubisson, who died in 1992—William Pichinte and Ramon Gonzalez, representatives to the Central American Parliament, or PARLACEN, as well as driver Gerardo Ramirez, were found murdered in a charred van outside Guatemala City.
Guatemalan authorities called in international investigators, who concluded that the politicians were likely carrying $5 million and 20 kilograms of cocaine. Four Guatemalan police officers were charged with the murders, but were themselves killed in prison within two weeks of their arrest.

A number of individuals, including a member of Guatemala’s congress, were convicted of involvement in those murders. The congressman, Manuel Castillo, was sentenced to 203 years in prison following a trial at which Silva was implicated as having orchestrated both sets of murders.

Silva presented experts at the second set of asylum hearings who claimed that the murders were actually ordered by Guatemalan officials in cooperation with ARENA, which wanted to hide its connection to drug dealers.

The IJ granted asylum, saying the earlier BIA ruling gave him no choice but to find Silva credible. But the BIA reversed, saying it had merely asked for further explanation of the earlier finding, not found Silva credible as a matter of law.

At a subsequent round of hearings, Silva’s experts testified that he would be tortured or executed in El Salvador because Roberto D’Aubisson Jr., an ARENA leader and mayor of a San Salvador suburb, would seek revenge for his brother’s murder. ARENA, they said, has significant control over aspects of government, even though the FMLN won the last presidential election.

The IJ denied asylum and CAT relief, saying Silva was ineligible for asylum because there were serious reasons to believe he had committed serious nonpolitical crimes in El Salvador and Guatemala. The IJ also found him lacking in credibility and said he was ineligible for CAT relief because there was insufficient evidence he faced torture in either El Salvador or Guatemala.

The IJ did, however, allow him to designate Nicaragua as the country of removal. The BIA affirmed.

Judge Diarmuid O’Scannlain, writing for the Ninth Circuit, said the BIA ruling was supported by substantial evidence. The discrepancies between Silva’s asylum application and his testimony, the judge said, were significant, not “trivialities,” nor was Silva’s claim that he simply forgot to tell his lawyer about the incidents believable.

The judge also cited Silva’s admission that he lied to the Salvadoran court about being ill, and said the evidence did not support his claim that he did so “to escape a sham trial.” There was expert testimony that it is possible to obtain a fair trial, O’Scannlain said, and in fact, Silva’s mother-in-law, who was also implicated in his corruption case, was able to win acquittal on some of the charges against her.

“Moreover, Silva’s appeal to possible corruption in the Salvadoran justice system does nothing to explain why Silva testified to the IJ that he was too sick to attend the hearings until inconsistencies in his own testimony forced him to admit he was lying,” the judge wrote.

O’Scannlain was joined by Senior Judge J. Clifford Wallace and U.S. District Judge Marilyn Huff, visiting from the Southern District of California.

The case is Silva-Pereira v. Lynch, 14-70276.