Reported / Citable
Background
Jose Margarito Perez-Castillo sought special-rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act. Immigration authorities found that evidence of his ties to El Salvador’s Atonal Battalion raised the statutory persecutor bar, which makes specified immigration relief unavailable to someone who assisted or participated in persecution on a protected ground. An immigration judge also made an adverse credibility finding that Perez did not challenge.
The Supreme Court previously described the persecutor-bar language as ambiguous about coercion. The Board of Immigration Appeals first recognized a narrow duress defense, but the Attorney General later reversed course and concluded that no such exception exists. Perez asked the Ninth Circuit to recognize an implied defense and also raised international-refugee-law principles. The case required the court to decide the statute’s best reading after Loper Bright ended mandatory judicial deference to an agency merely because statutory language is ambiguous.
The Court’s Holding
The Ninth Circuit denied the petition and held that the persecutor bar contains no implied duress defense. Using independent judgment, the panel gave the Attorney General’s position only limited persuasive weight because the agency had changed interpretations without an adequate explanation. The court nevertheless reached the same result from statutory text and structure: ordinary usage of “assisted” and “otherwise participated” can include involuntary contribution to persecution, while Congress expressly used “voluntarily” and created specific exceptions in nearby immigration provisions but omitted them here.
International-law concerns did not authorize the court to add an exception inconsistent with the statute’s best reading. The panel emphasized, however, that eliminating a freestanding duress defense does not eliminate the government’s threshold burden or the immigration judge’s duty to make a particularized assessment of whether the applicant actually assisted or participated. On this record, the government raised the bar and Perez failed to rebut it, especially given the unchallenged credibility determination.
Key Takeaways
- In the Ninth Circuit, coercion or duress is not an implied affirmative defense to the immigration persecutor bar.
- After Loper Bright, courts independently interpret ambiguous immigration statutes instead of automatically deferring to the agency.
- An agency interpretation may still have persuasive weight, but unexplained reversals weaken that weight.
- The absence of a duress defense does not dispense with a fact-specific inquiry into the applicant’s own assistance or participation.
- Unchallenged adverse credibility findings can be decisive when an applicant bears the burden of rebutting an invoked statutory bar.
Why It Matters
The ruling substantially narrows the options for applicants who participated in persecution under coercion, including former soldiers or conscripts seeking humanitarian relief. Counsel must focus early on whether the client’s conduct legally amounts to assistance or participation, rather than relying on duress as a separate excuse.
The opinion also illustrates post-Loper Bright administrative-law practice. Litigants should analyze text, statutory neighbors, and agency consistency because ambiguity alone no longer resolves the case in the government’s favor.
The court deliberately left the boundaries of “assistance” and “participation” for another case. That makes factual development especially important: the applicant’s role, knowledge, acts, omissions, proximity to persecutory conduct, and the government’s initial evidence can determine whether the bar is triggered at all. A coercive setting may still bear on those antecedent questions even though it cannot operate as a standalone duress defense after participation has been established.