Castaneda-Castillo v. Holder

United States Court of Appeals
For the First Circuit

No. 09-1847

DAVID EDUARDO CASTAÑEDA-CASTILLO;
CARMEN JULIA DE LA CRUZ-CASTAÑEDA;
PIERA DINA CASTAÑEDA,

Petitioners,

v.

ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF A FINAL ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Ripple,* and Lipez,
Circuit Judges.

William P. Joyce, with whom Joyce & Associates P.C., was on
brief for petitioners.
Matt A. Crapo, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, with whom Tony West,
Assistant Attorney General, Civil Division, and Michelle Gorden
Latour, Assistant Director, were on brief for respondent.

March 24, 2011

*
Of the Seventh Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. This is the latest round in a

lengthy series of proceedings adjudicating petitioner David Eduardo

Castañeda-Castillo's petition for asylum and withholding of

removal.1 Castañeda's asylum claims have previously been before

this court, having already been the subject of a 2006 panel

opinion, Castañeda-Castillo v. Gonzáles, 464 F.3d 112 (1st Cir.

2006) ("Castañeda I"), as well as an en banc decision a year later,

Castañeda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007)

("Castañeda II").2 In Castañeda II, we vacated the decisions of

the Immigration Judge ("IJ") and Board of Immigration Appeals

("BIA") applying the "persecutor bar" to Castañeda's asylum claims,

and held that the persecutor bar could not be applied to block

asylum claims absent a finding that the individual involved had

actual knowledge that he or she was engaged in the persecution of

others. Castañeda II, 488 F.3d at 22. We remanded the case for

further proceedings. The instant appeal is from the decision of

1
Castañeda's wife, Carmen Julia de la Cruz, and daughters, Piera
Dina and Pía Maribel, are derivative applicants on Castañeda's
original asylum application and, with the exception of Pía Maribel,
who has since married a U.S. citizen, are part of this appeal.
Because this case arises out of the lead petitioner's history in
the Peruvian military, unless otherwise specified, "Castañeda"
refers to David.
2
Castañeda raises claims pertaining to both asylum and
withholding of removal. Because the standard governing withholding
of removal is stricter than that governing asylum, see Matter of
Mogharrabi, 19 I. & N. Dec. 439, 440-41 (BIA 1987), the decisions
below summarily dismissed Castañeda's withholding of removal claims
upon dismissal of his asylum claims. Therefore, our discussion
also focuses on the asylum claim.

-2-
the BIA reviewing the IJ's decision on remand. For reasons

explained below, we conclude that the IJ and BIA adjudication of

Castañeda's asylum petition was marred by legal error.

Consequently, we again vacate the denial of Castañeda's asylum

petition and remand for further proceedings.

I.

The root of the controversy is Castañeda's role in a 1985

massacre of sixty-nine civilians in Accomarca, Perú during Perú's

struggle with the Shining Path movement, a violent Maoist insurgent

group that "is among the world's most ruthless guerrilla

organizations." Castañeda I, 464 F.3d at 114 n.3. What follows is

an abbreviated summary of the facts and procedural posture of the

instant appeal. Readers seeking further details are advised to

refer to our earlier 2006 panel decision, id. at 113-22.

In 1985, Castañeda was a military officer stationed in

Perú's Ayacucho region, the birthplace of the Shining Path.

Castañeda's duties included training and leading patrols. In

August of that year, Castañeda's patrol was ordered to assist in an

operation in the remote village of Llocllapampa in the Accomarca

region, which was believed to be a Shining Path stronghold. The

goal of the operation was to search for Shining Path guerrillas,

between forty and sixty of whom were believed to be in the village.

The operation involved four patrols: two would enter the village to

conduct the search, while the other two would block escape routes.

-3-
Castañeda's patrol was one of the latter, and was assigned to guard

a location on a path several miles from the village, through which

fleeing militants would likely pass. Castañeda was therefore not

present when the two patrols that entered the village, led by

Lieutenant Riveri Rondón and Sub-Lieutenant Telmo Hurtado,

proceeded to massacre dozens of civilians.3 Castañeda testified

that although he was in communication with the base commander via

radio, he was not in communication with any of the other patrols,

and did not know their radio frequencies so could not contact them

in any event. Castañeda and his patrol remained in position until

ordered to return home by the base commander; at no point during

the operation did he or his men see anyone coming down the path,

and no shots were fired by Castañeda or his patrol.

Castañeda testified that he did not learn of the

bloodletting until three weeks later, when he heard on the radio

that Hurtado had confessed to executing civilians. A few weeks

later, in September of 1985, Castañeda was called to testify before

a Peruvian Senate Human Rights Commission investigating the matter.

The Commission noted that Castañeda's patrol was "not involved in

any confrontations with fugitive civilians." Charges were

subsequently filed in the Peruvian military courts against the

leaders of all four patrol units, including Castañeda. He was

3
It is unclear exactly how many civilians were killed; estimates
range from twenty-five to sixty-nine. Id. at 117 n.12 (citing the
report of a Peruvian Senate Human Rights Commission).

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acquitted of all charges by the Appeals Division of the Supreme

Council of Military Justice. Hurtado, who was the only person

convicted by the tribunal, was thereafter released under a general

amnesty passed by former President Alberto Fujimori.

As a result of the publicity surrounding the events at

Accomarca, Castañeda's name became linked to the massacre. El

Nacional, a Peruvian newspaper apparently sympathetic to the

Shining Path, published Castañeda's name in connection with the

killings as early as October of 1985. Castañeda and his family

subsequently began to receive death threats from the Shining Path.4

On June 26, 1986, Castañeda was attacked near his home, while

dressed in civilian clothes. The attackers left behind leaflets

stating "spilled blood will never be forgotten." Later, in March

of 1987, a group of gunmen attempted to stop the cab in which

Castañeda was riding, but Castañeda and the driver were able to

escape. Undeterred, the next month the Shining Path attacked a

restaurant where Castañeda and several other military officers were

4
Castañeda states that he received death threats on approximately
twenty occasions. According to Castañeda, the threats contained
messages such as "[t]he miserable dog who killed our soldiers of
the New Popular Republic and his family be executed. [Sic] Long
live the PCP-SL. Long live President Gonzalo," "[a]ll the dogs of
the army who fought against us will die. Long live President
Gonzalo!," and "Leopard, you dog, your head will be hung on a pole
for having killed our People's Army's soldiers. Long live the
armed battle!" "President Gonzalo" is the nom-de-guerre of Manuel
Rubén Abimael Guzmán Reynoso, the head of the Shining Path during
the time period relevant to this case. He has since been
imprisoned by the Peruvian authorities. "Leopard" was Castañeda's
military code name.

-5-
having lunch. A bomb exploded minutes after he left, killing two

military officers and "five or six" civilians.

The Shining Path did not limit its attacks to Castañeda

alone. It also targeted his family. The Shining Path detonated

explosives near his parents' home, leaving behind death threats

that referred to his military code name, and contained veiled

references to the killings at Accomarca. In 1989 an attempt was

made to kidnap his daughter Pía from her school. The attack was

foiled by the vigilance of the school's director, who subsequently

requested that Pía be removed from the school because her presence

endangered the other students.

Finally, in October of 1990, Castañeda's neighbor and

colleague was murdered at home, in front of his family. Like

Castañeda, he was a member of the military who had been involved in

the counter-insurgency, and had also been receiving death threats

from the Shining Path over a number of years. After this incident,

the Castañedas moved frequently, staying with relatives, but never

together and never for more than a few days at a time. Castañeda

received an honorable discharge from the Peruvian military on

June 4, 1991, and the family fled for the United States shortly

thereafter.

The Castañedas arrived in Miami on August 29, 1991 on B-2

visitor, non-immigrant visas. Castañeda applied for asylum on

January 19, 1993, naming his wife and daughters as derivative

-6-
applicants. After being charged with removability under the

Immigration and Nationality Act ("INA") § 101(a)(15), he conceded

removability on May 1, 2000. An initial adverse decision by the IJ

on October 4, 2004 was subsequently affirmed by the BIA on

September 9, 2005. The BIA "affirmed the [IJ's] adverse

credibility finding and stated that, even if Castañeda were

credible, he had assisted or otherwise participated in the

persecution of others." Castañeda I, 464 F.3d at 121. The

Department of Homeland Security ("DHS") subsequently took Castañeda

into custody, where he remained for approximately the next five

years, until August 17, 2010, when he was ordered released upon

posting $15,000 bail.

Castañeda appealed to this court. An initial panel

decision found that the BIA's adverse credibility determination, as

well as its finding that Castañeda had engaged in persecution of

others, was not supported by substantial evidence. Castañeda I,

464 F.3d at 121-22. The DHS petitioned for rehearing. The court,

this time sitting en banc, held that the persecutor bar, which

excludes former persecutors from eligibility for asylum, requires

that the asylum seeker have prior or contemporaneous knowledge that

the effect of his or her actions is to assist in persecution. See

Castañeda II, 488 F.3d at 21-22; INA § 208(b)(2)(A)(i), codified at

8 U.S.C. § 1158 (persecutor bar for asylum); INA § 241(b)(3)(B)(i),

codified at 8 U.S.C. § 1231 (persecutor bar for withholding of

-7-
removal). Accordingly, we vacated the BIA's decision and remanded

to allow the BIA to determine whether Castañeda was credible in

claiming that he did not learn of the Accomarca massacre until long

after he had returned from his patrol. In addition, we rejected

the IJ and BIA's adverse credibility determinations as to

Castañeda's denial of prior or contemporaneous knowledge of the

massacre as "wholly speculative and without record support," and

remanded for further consideration. Castañeda II, 488 F.3d at 24.

On remand, the IJ again denied Castañeda's renewed

application for asylum and withholding of removal, holding (1) that

he had not met his burden of proving that he was not a persecutor,

(2) that he had not demonstrated that he was persecuted on account

of his membership in a particular social group or for a political

opinion, and (3) that he did not have an objectively reasonable

fear of future persecution. On appeal, the BIA reversed the IJ as

to point (1), noting that "there is too slim a reed of evidence

upon which to conclude that the respondent had prior or

contemporaneous knowledge of the Accomarca massacre," and thus

concluded that the persecutor bar did not apply. However, the BIA

upheld the IJ's decision that Castañeda was materially ineligible

for asylum on grounds (2) and (3). The BIA found that even if

Castañeda was a member of a particular social group, the Shining

Path did not target him for that reason but rather for revenge for

his alleged involvement in Accomarca. Therefore, the burden was on

-8-
Castañeda to prove both that he had a subjectively genuine fear of

future persecution, and that such fear was objectively reasonable.

The BIA held that Castañeda failed to carry this burden, and so

denied his asylum petition. This appeal followed.

II.

There is an additional wrinkle that sets Castañeda's case

apart from the typical asylum case, and which we must address

before reaching the merits. On September 3, 2008, the government

of Perú issued an order seeking Castañeda's extradition to face

charges stemming from the incidents at Accomarca. A year and a

half later, on March 9, 2010, the United States Attorney for the

District of Massachusetts acted on the extradition request by

issuing a complaint seeking the provisional arrest of Castañeda.

In light of the ongoing extradition proceedings, the United States

has contended that there should be no merits adjudication of

Castañeda's asylum claims until the extradition proceedings are

resolved.5 The United States therefore declined, both in its

appellate brief and at oral argument, to address the merits of any

of the issues raised by Castañeda, insisting only that the case

should be held in abeyance pending resolution of the extradition

proceedings.

5
The United States initially sought remand so that the BIA could
"further consider Petitioners' asylum and withholding of removal
claims in light of Sompotan v. Mukasey, 533 F.3d 63 (1st Cir.
2008), or to dispose of the case on whatever other grounds the
Board may deem fit."

-9-
 The government raises two main arguments to support its

position. The first is its claim that the BIA itself has a policy

of holding asylum cases in abeyance once extradition proceedings

are initiated. The government cites Matter of Pérez-Jiménez, 10 I.

& N. Dec. 309 (BIA 1963), as evidence for this claim. In Pérez-

Jiménez, the BIA considered a motion by the Immigration and

Naturalization Service ("INS") to withdraw the outstanding

deportation order against Pérez-Jiménez, the former president of

Venezuela, in light of Venezuela's extradition request, as well as

a competing motion by Pérez-Jiménez to reopen the deportation

proceedings despite the pending extradition. The BIA sided with

the INS, noting that "in view of the extradition proceedings,

further deportation proceedings would serve no useful purpose and

may unnecessarily and improperly complicate the extradition

proceedings." Id. at 311-12.

However, the government's claim that Pérez-Jiménez

reflects a firm "policy" on the part of the BIA is undermined by

the fact that the BIA explicitly declined to apply Pérez-Jiménez to

the present case. In keeping with its efforts to prevent an

adjudication on the merits of Castañeda's asylum claims, the United

States filed a motion with the BIA on June 10, 2010 to re-open the

proceedings against Castañeda and to hold them in abeyance until

the resolution of the extradition proceedings, citing Pérez-

Jiménez. This would have meant that there would be no final agency

-10-
determination for us to review, and so we would no longer have had

jurisdiction over the case. The BIA denied the request. The BIA

explicitly noted that Pérez-Jiménez was not applicable to the

circumstances at hand because, in this case, "the removal

proceedings are administratively final," and "[t]here are no

pending matters before the Board nor are the parties seeking the

reopening of proceedings to pursue matters within our

jurisdiction." This suggests that the government reads too much

into Pérez-Jiménez.

The second contention the government raises is that "any

decision addressing the merits" of the asylum claim would "unduly

complicate or interfere with the sensitive foreign policy

considerations inherent to the ongoing extradition proceedings."

However, the government failed, both in its appellate brief and

when pressed at oral argument, to provide anything beyond vague

hand-waving about the nature of these unspecified foreign policy

consequences.6 In any case, the argument that adjudicating the

asylum claim would somehow "complicate" the extradition proceedings

would have more legs if a decision on the former had legally

preclusive effect on the latter. But, as the United States

6
As the government concedes, the Secretary of State, who, under
18 U.S.C. § 3186, is ultimately responsible for deciding whether to
honor an extradition request, had made no representations either
before this court or the BIA that a decision on the merits of
Castañeda's asylum claim would in any way constitute an
embarrassment to the foreign policy of the United States.

-11-
concedes, asylum and extradition proceedings are "separate and

distinct," in the sense that "the resolution of even a common issue

in one proceeding is not binding in the other." Indeed, the

government not only concedes this point, it positively stresses it,

noting that in light of the current United States-Perú extradition

treaty's silence on the issue, the Secretary of State may, in her

discretion, order the extradition of an individual to Perú even if

that individual is granted asylum.

The government points out that when asylum and

extradition "proceedings are contemporaneous, they are related

inasmuch as they both involve a determination as to whether a

foreign national will be required to return to his country of

nationality." This argument ignores the fact that asylum and

withholding of removal proceedings are governed by different

sources of statutory authority than extradition proceedings. The

law governing asylum and withholding of removal was initially

established by Congress in sections 208 and 241(b)(3),

respectively, of the Immigration and Nationality Act (INA) of 1952,

subsequently amended by the Refugee Act of 1980. See Act of

March 17, 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), codified

at 8 U.S.C. §§ 1158 and 1231(b)(3). "In enacting the Refugee Act,

Congress sought to bring United States refugee law into conformity

with the 1967 United Nations Protocol Relating to the Status of

Refugees . . . to which the United States acceded in 1968."

-12-
Barapind v. Reno, 225 F.3d 1100, 1106 (9th Cir. 2000) (citing

United Nations Protocol Relating to the Status of Refugees art. 33,

Jan. 31, 1967, 19 U.S.T. 6223, T.I.A.S. 6577); Matter of Acosta, 19

I. & N. Dec. 211, 219 (BIA 1985) (same). Extradition, in contrast,

is governed by 18 U.S.C. § 3184, which in turn rests on "treat[ies]

or convention[s] for extradition between the United States and any

foreign government." Id. In this case, the relevant treaty is the

bilateral extradition treaty between the United States and Perú.

See Extradition Treaty, U.S.-Perú, July 26, 2001, S. Treaty Doc.

107-6. In short, although asylum and extradition proceedings are

related insofar as they both bear on whether Castañeda will

ultimately be forced to return to Perú, they are rooted in distinct

sources of law, governed by procedures specified in distinct

statutory regimes, and responsive to different sets of policy

concerns.

It bears emphasis that Castañeda's asylum claims have

been pending for eighteen years. Moreover, Castañeda's wife and

daughter are derivative beneficiaries of the claim, with the

consequence that whatever ultimately happens to Castañeda, their

interests would be seriously prejudiced by further postponing a

merits adjudication until the resolution of potentially quite

lengthy extradition proceedings.7 To this we add the real

7
Significantly, Magistrate Judge Dein indicated in her order
releasing Castañeda on bail that, "[g]iven the history of the case
to date, the inaccuracies in the [extradition] charges and the

-13-
possibility that the charges underlying the extradition request

will ultimately be dismissed under Peruvian double jeopardy

principles, as Castañeda was found not guilty of these charges by

a duly constituted court of Perú, the decision of which was

confirmed by Perú's highest tribunal.8 For these reasons, we find

that the government's unhelpful invocation of "foreign policy

considerations" is not sufficient to defeat the specific and

compelling interests in favor of reaching the merits sooner rather

than later. Because the government has put all its eggs in this

rather dubious basket, and consequently has failed to in any way

address the merits of Castañeda's asylum claims, we are left "to

decide the matter with only [the appellant's] arguments to guide

us." Casco Indem. Co. v. R.I. Interlocal Risk Mgmt. Trust, 113

F.3d 2, 3 (1st Cir. 1997).

complexity of the evidence which the parties will likely seek to
introduce even in the most stream-lined extradition hearing,
Castañeda-Castillo does not face a 'normal passage of time inherent
in the litigation process,' but, rather, a far more extensive
process which rises to the level of special circumstances."
Memorandum and Order on Application for Bail at 23, In the Matter
of the Extradition of David E. Castañeda-Castillo, No. 10-mj-1013
(D. Mass. filed Aug. 17, 2010) (citing United States v. Kin-Hong,
83 F.3d 523, 525 (1st Cir. 1996)).
8
See Constitución Política del Perú 1993, art. 139, § 13; and
Code of Criminal Procedure art. 5 (Perú), cited in Application for
Bail at Exhibit 21, In the Matter of the Extradition of David E.
Castañeda-Castillo, No. 10-mj-1013 (D. Mass. filed Aug. 17, 2010)
(establishing res judicata as an "exception" to penal action).
Principles of international law also support this proposition; see
Restatement (Third) of Foreign Relations Law § 476 (1987) and cmt.
(b); International Covenant on Civil and Political Rights, art.14,
§ 7, Dec. 19, 1966, 999 U.N.T.S. 171.

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 III.

A.

"In evaluating a BIA denial of asylum, our review is

aimed at determining whether the decision is supported by

substantial evidence in the record." Halo v. Gonzales, 419 F.3d

15, 18 (1st Cir. 2005); see also INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). The BIA's findings of fact are "conclusive unless

any reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B); see also Pietersen v.

Ashcroft, 364 F.3d 38, 40 (1st Cir. 2004). However, although we

"give deference, where appropriate, to the agency's interpretation

of the underlying statute in accordance with administrative law

principles," Meguenine v. INS, 139 F.3d 25, 27 (1st Cir. 1998),

review of the BIA's legal conclusions is de novo. Manzoor v. U.S.

Dep't of Justice, 254 F.3d 342, 346 (1st Cir. 2001). Because the

BIA conducted an "independent evaluation of the record and rested

its decision on a self-generated rationale," the focus of judicial

review is on the BIA's decision. Zhou Zheng v. Holder, 570 F.3d

438, 440 (1st Cir. 2009).

Asylum eligibility can be established in one of two ways.

The alien may demonstrate either past persecution or a well-founded

fear of future persecution due to "race, religion, nationality,

membership in a particular social group, or political opinion." 8

U.S.C. § 1101(a)(42); Mediouni v. INS, 314 F.3d 24, 27 (1st Cir.

-15-
2002). To establish a well-founded fear of future persecution, the

alien must establish that his or her fear is both subjectively

genuine and objectively reasonable. Jiang v. Gonzales, 474 F.3d

25, 30 (1st Cir. 2007). On the other hand, if the alien

establishes that he or she suffered past persecution based on one

of the indicated grounds, then he or she is presumed to have a

well-founded fear of future persecution which the government may

rebut by a preponderance of the evidence. Fergiste v. INS, 138

F.3d 14, 18 (1st Cir. 1998); 8 C.F.R. § 208.13(b)(1)(i).

B.

As we have noted, in its most recent decision, the BIA

reversed the IJ's finding that Castañeda was ineligible for asylum

on account of the persecutor bar, but affirmed the IJ's finding

that Castañeda had not established the requisite nexus between his

past persecution and a statutorily protected ground, and that

Castañeda had not established a well-founded fear of future

persecution. In rejecting Castañeda's claim of past persecution,

the BIA noted that,

even assuming that Peruvian military officers
whose names became associated with the
Accomarca massacre constitutes a cognizable
particular social group . . . the respondent
has not adequately shown that his military
rank is the motivating factor behind the
Shining Path's actions in this matter.
Rather, it appears that revenge is the
motivation behind the Shining Path's actions,
with public military rank being a necessary
component, but not the motivating factor.
(Emphasis added.)

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Castañeda argues that the BIA erred in so ruling. We agree.

As Castañeda rightly points out, to say that the Shining

Path's assaults were motivated by "revenge" is tantamount to saying

that they were motivated by the fact that he was a military officer

that the group viewed as responsible for the Accomarca massacre.

After all, Castañeda's status as an officer associated with

Accomarca is precisely what explains the Shining Path's desire for

revenge. Furthermore, as the leader of one of the army patrols

associated with that incident, his status as an officer would make

him particularly likely to become a target of the Shining Path's

violence. We thus fail to discern a significant distinction

between the proposition that the Shining Path targeted Castañeda

because they wanted revenge for his alleged role in Accomarca, and

that the Shining Path targeted him because he was a member of the

group of former military officers that they believed to have been

involved in Accomarca. On the facts of this case, the Shining

Path's attempts to exact retribution were not only consistent with

persecution on the basis of group membership, but in fact

constituted such persecution. The BIA's conclusion to the contrary

does not withstand scrutiny. Consequently, we hold that the BIA

erred in dismissing Castañeda's asylum claims on this basis.

Resolving this error forces us to consider whether, as

the BIA assumed without deciding, "Peruvian military officers whose

names became associated with the Accomarca massacre" constitutes a

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cognizable particular social group. Because the BIA has not yet

decided this question, we adhere to the "ordinary 'remand' rule,"

Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (per curiam) (citation

omitted), and remand to the BIA for consideration in the first

instance.9 We note, however, that because "the scope of the

statutory term 'particular social group' presents a pure issue of

law," our review of any subsequent conclusion by the BIA on this

issue is de novo. Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir.

2004).

The unusually prolonged and convoluted history of this

case prompts us to take the further step of retaining jurisdiction

over Castañeda's appeal while the BIA addresses these issues on

remand. Accordingly, the BIA is requested not to hold Castañeda's

case in abeyance while Perú's extradition request is sorted out,

but to proceed directly to an adjudication of the indicated issues

on remand. Although use of the limited remand device is perhaps

not usual in this context, its use is also not unprecedented. See

Ucelo-Gómez v. Gonzales, 464 F.3d 163, 172 (2d Cir. 2006)

(directing the BIA to issue an opinion responsive to the limited

remand within forty-nine days, and retaining jurisdiction in the

9
But see Ucelo-Gómez v. Gonzales, 464 F.3d 163, 170 (2d Cir.
2006) (noting that "if a reviewing court can state with assured
confidence (absent agency guidance as to its protectability under
the INA) that a group would or would not under any reasonable
scenario qualify as a 'particular social group,' it need not
remand, and may rule on the issue in the first instance.").

-18-
interim); Asani v. INS, 154 F.3d 719 (7th Cir. 1998) (retaining

jurisdiction during a limited remand to the BIA to determine

whether, inter alia, changed circumstances in the petitioner's home

country supported a finding of a well-founded fear of future

persecution); Yang v. McElroy, 277 F.3d 158, 164 (2d Cir. 2002).

Following the lead of the Seventh Circuit in Asani, in the event

that Castañeda is denied relief on remand, "his petition for review

in this Court will be reactivated." Id. at 729.

Remand to the BIA is requisite in light of the

significant adjudicatory functions that remain to be discharged; in

addition, however, we find that the extraordinarily protracted

nature of these proceedings justifies retaining jurisdiction

pending resolution of those issues. As noted earlier, the subject

of this appeal has been the subject of two sets of IJ and BIA

decisions, as well as both a panel and an en banc opinion in the

First Circuit. As a result, the Castañeda family has been awaiting

resolution of their claims for the last eighteen years. The need

for a speedy resolution of the petitioner's asylum claims is

therefore exceptionally pressing on the facts of this case, and

underwrites our retaining jurisdiction over the case while it is on

remand to the BIA.

C.

As noted above, we are here reviewing the BIA's decision

and not that of the IJ. However, because the IJ reached the social

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group issue, we pause to underscore our concerns about the IJ's

reasoning in this regard. We focus, in particular, on the

significance of Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988),

to the facts of this case.

The term "social group" is not statutorily defined, but

has been described as "a group of persons sharing a common,

immutable characteristic that makes the group socially visible and

sufficiently particular." Larios v. Holder, 608 F.3d 105, 108 (1st

Cir. 2010) (internal quotation marks and citation omitted). In

other words, the group must be defined in such a way as to set its

members apart from the general populace and to ensure that they

have visibility as members of the group so defined. Ahmed v.

Holder, 611 F.3d 90, 94 (1st Cir. 2010). Neither being a military

officer nor being publicly associated (i.e., by the news media)

with the massacre requires determination by "subjective value

judgments," but rather can be readily determined by objective

evidence. Id. at 95. Moreover, as we have noted, membership in a

social group "may stem from an innate characteristic or a shared

experience." Ang v. Gonzales, 430 F.3d 50, 55 (1st Cir. 2005); see

also Matter of Acosta, 19 I. & N. Dec. at 233 (noting that "the

shared characteristic . . . might be a shared past experience such

as former military leadership").

Relying on Fuentes, the IJ rejected Castañeda's claim of

past persecution on the grounds that "Castañeda held an inherently

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dangerous position," and the dangers he faced "were 'perils arising

from the nature of [his] employment and domestic unrest, rather

than 'on account' of immutable characteristics or beliefs." The IJ

appears to have read Fuentes to represent a per se rule barring

claims of asylum founded on persecution suffered while an active

member of the military. But this is far too broad a reading of

Fuentes.

The underlying concern in Fuentes was that police

officers (and other similarly situated individuals) cannot be

eligible for asylum simply because they were exposed to assault in

the line of duty. That is, after all, part of their job. In

contrast, a former police officer who is persecuted even "where

hostilities have ceased," Fuentes, 19 I. & N. Dec. at 662, may be

eligible for asylum, because that type of continued, off-the-job

persecution directed at the officer personally is decidedly not

part of the job. See id. at 661 (noting that "[p]olicemen are by

their very nature public servants who embody the authority of the

state," and are "often attacked either because they are (or are

viewed as) extensions of the government's military forces or simply

because they are highly visible embodiments of the power of the

state," and that "[i]n such circumstances, the dangers the police

face are no more related to their personal characteristics or

political beliefs than are the dangers faced by military

combatants"); Matter of C-A, 23 I. & N. Dec. at 951 ("[W]e do not

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afford protection based on social group membership to persons

exposed to risks normally associated with employment in occupations

such as the police or the military. In part, this is because

persons accepting such employment are aware of the risks involved

and undertake the risks in return for compensation." (citation

omitted)). But if there is an exception for former police officers

on the grounds that that kind of persecution is not inherent to

their job, then it would be inexplicable to not also make an

exception for people who, like Castañeda, are persecuted beyond the

scope of their employment, even though they happen to be on active

duty when such persecution occurs. In other words, the sheer fact

of being on active duty is not dispositive under Fuentes, but

rather whether the alleged persecution was in response to the

petitioner's role as a "highly visible embodiment[] of the power of

the state" or was directed against his or her "personal

characteristics or political beliefs." Fuentes, 19 I. & N. Dec. at

661. Fuentes does not establish a per se bar to consideration of

attacks that occurred while the respondent happened to have been on

active duty, where the attacks were not directly related to that

fact.

Although we have noted in dicta that "dangers that arise

from employment in the military in areas of domestic unrest . . .

generally do not support asylum claims," Mediouni v. INS, 314 F.3d

at 27 (quotation marks omitted), this statement does not suggest

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that there is a per se rule against asylum claims by former

military officers. Not to put too fine a point on it, there is a

significant difference between dangers that are directed against

the role one occupies -- for instance, as a member of a counter-

insurgency squad -- and dangers that attach themselves to an

individual personally, even if originating out of actions

undertaken and associations forged while occupying such a role.

This understanding of Fuentes squares with the facts of

that case itself. The respondent in Fuentes premised his claim of

past persecution on attacks that occurred while he was fulfilling

his duty as a police officer and United States Embassy guard. See

Fuentes, 19 I. & N. Dec. at 659 (describing attacks "while checking

the highways" as part of a police patrol and "while he was standing

guard" at the U.S. embassy). This stands in sharp relief to the

persecution in Castañeda's case which, even though it occurred

while he was still an active member of the Peruvian military, was

largely motivated by the guerrillas' belief in his responsibility

for the Accomarca massacre. These attacks were not, as in Fuentes,

tied to whoever happened to be filling the role of police officer

or embassy guard or member of the military, but were directed at

Castañeda and his family personally. It is surely notable in this

regard that the attacks occurred when he was not undertaking

official duties, included his family, and included specific

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intimations of retribution for Accomarca.10 This does not appear

to be the kind of danger that a military officer should expect to

face simply in virtue of being a military officer, which was what

Fuentes cautioned against.

The IJ's overly broad reading of Fuentes ignores the fact

that "there may be scenarios where a government official involved

in law enforcement should not be precluded from making an asylum or

withholding claim." Hernandez-Cabana v. Mukasey, 262 F. App'x 287,

289 (1st Cir. 2008). Other courts have come to similar

conclusions. See Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th Cir.

2003) (noting that the BIA "may have gone too far" to the extent

that it "was suggesting that there is a per se rule against finding

past persecution for dangers encountered during service as a police

officer"); see also Abaya v. INS, 2 F. App'x 850, 851-52 (9th Cir.

2000) (rejecting government contention that under Fuentes,

"violence between guerrillas and military officers 'is inherent to

the nature of a revolutionary struggle and cannot be the basis of

an asylum claim,'" in part because the attacks on the petitioner

did not all occur "during and in the course of his military

duties," but "involve[d] threats to and attacks on his family,

10
In the June 1986 shooting and bomb attack, for instance, the
Shining Path left behind leaflets stating "spilled blood will never
be forgotten." Other threats made reference to Castañeda's
military code name, "Leopard." Similarly, when the Shining Path
detonated explosives near the home of Castañeda's parents, they
left notes saying, "for each dead combatant, ten of yours will die
miserable [deaths]."

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entry of his name on a hit list, or continuing threats after his

military employment ceased," and in part because, contrary to the

per se rule articulated in Fuentes, "'[p]olitical revenge and

political persecution are not mutually exclusive'" (quoting Lim v.

INS, 224 F.3d 929, 934 (9th Cir. 2000)).

The BIA's own findings appear to compel the conclusion

that the persecution Castañeda and his family suffered was

motivated in large part by his association with the Accomarca

massacre. See Sompotan v. Mukasey, 533 F.3d 63, 69 (1st Cir. 2008)

(noting that, in the context of pre-REAL ID cases, "a petitioner is

not required to show that the impermissible motivation was the sole

motivation for the persecution"). Therefore, if "Peruvian military

officers whose names became associated with the Accomarca massacre"

is a cognizable social group for purposes of asylum and withholding

of removal, then it is immaterial whether the persecution he

suffered on that basis is additionally labeled "revenge." Finally,

in deciding this question, we caution that Fuentes should not be

read as expansively as the IJ seems to have suggested.

D.

This brings us to the BIA's treatment of Castañeda's

claim of a well-founded fear of future persecution, should he be

forced to return to Perú. The BIA concluded that Castañeda's fear

of future persecution, while subjectively genuine, was not

objectively reasonable in light of the years that have since

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elapsed and the Shining Path's weakened condition. In reaching its

conclusion, the BIA placed the burden on Castañeda to establish

that his fear of future persecution was well-founded. The burden

was shifted to Castañeda because of the BIA's ruling that he had

not shown past persecution on a protected ground. If it becomes

clear on remand that the persecution Castañeda undoubtedly suffered

was motivated at least in part by his membership in a cognizable

social group, then Castañeda will be entitled to a presumption of

a well-founded fear of future persecution. 8 C.F.R. § 1208.13

(b)(1). The burden will then be on the government to rebut this

presumption by a preponderance of the evidence. 8 C.F.R. § 1208.13

(b)(1)(i)(A).

IV.

We vacate the BIA's denial of Castañeda's asylum claim,

and remand to provide the BIA with an opportunity to consider

whether "Peruvian military officers whose names became associated

with Accomarca" is a cognizable social group, bearing in mind that

we do not read Fuentes to establish a per se rule against asylum

claims raised by those who were military officers at the time of

their persecution. Should that question be answered in the

affirmative, Castañeda would then be entitled to a presumption of

a well-founded fear of future persecution, and absent a sufficient

rebuttal by the government, should be deemed eligible for asylum.

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As noted earlier, this panel retains jurisdiction over Castañeda's

appeal pending resolution of the questions remanded to the BIA.

We stress that this case has been ping-ponging around for

over eighteen years, having been the subject of two sets of IJ and

BIA decisions, as well as both a previous panel and en banc

decision by the First Circuit. A point comes when enough is

enough. Regardless of the ultimate outcome of his extradition

proceedings, it is our expectation that our opinion today will aid

the IJ and BIA in the expeditious and final resolution of

Castañeda's asylum claims.

Vacated and Remanded.

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