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.
Before
Torruella, Ripple,* and Lipez,
Circuit Judges.
OPINION AND ORDER
Entered: April 12, 2012
Before this court is a motion for final judgment filed by
Petitioners David Eduardo Castañeda-Castillo ("Castañeda"), his
wife, and his daughter. We grant this motion over the government's
objection. With this judgment, this court brings to an end a case
that has been pending for over eighteen years.
* Of the Seventh Circuit, sitting by designation.
The full history of this case can be found in the three
prior opinions of this court and one opinion of the United States
District Court for the District of Massachusetts. See
Castañeda-Castillo v. Gonzáles, 464 F.3d 112 (1st Cir. 2006)
("Castañeda I"); Castañeda-Castillo v. Gonzáles, 488 F.3d 17 (1st
Cir. 2007) (en banc) ("Castañeda II"); United States v. Castañeda-
Castillo, 739 F. Supp. 2d 49 (D. Mass. 2010); Castañeda-Castillo
v. Holder, 638 F.3d 354 (1st Cir. 2011) ("Castañeda IV"). We
recount the highlights here. Castañeda is a former Peruvian
military officer who was accused of being part of a massacre in the
village of Accomarca (the "Accomarca massacre") in 1985, during
Peru's conflict with the Shining Path guerrilla movement.
Castañeda IV, 638 F.3d at 357. The Peruvian Senate Human Rights
Commission investigated the incident and found that, although
Castañeda commanded a unit in a larger force that was responsible
for the massacre, his unit was not involved. Id. Castañeda was
later tried before a Peruvian military court martial. Id. The
court martial acquitted Castañeda, and this decision was affirmed
by the Supreme Council of Military Justice, the court with the
highest jurisdiction over military justice matters in Peru. See
Castañeda III, 739 F. Supp. 2d at 52. Nevertheless, Castañeda's
name became associated with the massacre, and he and his family
began receiving death threats from Shining Path. Castañeda IV, 638
F.3d at 357-58.
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Over the next several years, Shining Path -- a violent
Maoist insurgent group that "is among the world's most ruthless
guerrilla organizations," Castañeda I, 464 F.3d at 114 n.3 --
repeatedly attacked Castañeda and his family, in the process
killing a number of innocent bystanders. Castañeda IV, 638 F.3d at
58. Castañeda and his family eventually fled to the United States
in 1991. Id. In 1993, Castañeda filed for asylum, naming his wife
and daughter as derivative applicants. Id. An Immigration Judge
("IJ") denied the application in 2004, and the Board of Immigration
Appeals ("BIA") affirmed in 2005. Over the next five years, while
his appeals were pending, Castañeda sat in jail in custody of the
Department of Homeland Security ("DHS"); he was finally released on
bail in August 2010. Id.
In our first decision, we reversed the BIA's finding that
Castañeda had engaged in persecution, holding that it was not
supported by substantial evidence. Castañeda I, 464 F.3d at 121-
26. DHS then requested rehearing en banc, which we granted. In
Castañeda II, the en banc court held that the so-called "persecutor
bar" requires that an asylum seeker have prior or contemporaneous
knowledge that the effect of his actions is to assist in
persecution. See 488 F.3d at 21-22. In light of this holding, we
remanded the case to the BIA to consider whether Castañeda was
credible in his testimony that he did not know of the Accomarca
massacre until after it had occurred. Id. at 24-25.
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Upon remand, the IJ again denied the application, holding
that: (1) Castañeda had not met his burden of proving that he was
not a persecutor; (2) 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) he did not have an
objectively reasonable fear of future persecution. Castañeda IV,
638 F.3d at 359. In May 2009, the BIA reversed the IJ as to point
(1), concluding that the persecutor bar did not apply, but upheld
the IJ's decision that Castañeda was materially ineligible for
asylum on grounds (2) and (3). Id. at 359. The thrust of the
BIA's argument was that Shining Path attacked Castañeda not because
he was a member of a specific group -- military officers who were
linked to the Accomarca massacre -- but rather out of "revenge" for
the massacre. Id. at 362-63.
Castañeda again petitioned this court for review in June
2009. We granted a stay of removal in July 2009 pending resolution
of the petition. For reasons that were never made clear, the
government did not file the complete administrative record in the
case until November 2009. In March 2010 -- roughly seventeen years
after Castañeda's initial application had been filed, and after
Castañeda had spent over four years in jail -- the government asked
us to remand the case to the BIA yet again. The government sought
remand because it had recently decided to commence extradition
proceedings against Castañeda in response to a request by the
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Peruvian government in 2008. Id. at 359.1 The government also
requested a remand to the BIA for further consideration in light of
Sompotan v. Mukasey, 533 F.3d 63 (1st Cir. 2008), despite the fact
that Sompotan simply re-stated well-settled law and pre-dated the
BIA's most recent decision in this case. We denied the
government's request for a remand and proceeded to consider the
merits of Castañeda's asylum claim -- a topic the government did
not address in its briefing to this court. Castañeda IV, 638 F.3d
at 362.
In Castañeda IV, we remanded the case to the BIA with
instructions to consider whether military officers linked to the
massacre comprised a social group upon which an asylum claim could
be based. Id. at 363. In addition, in light of the "unusually
prolonged and convoluted history of this case," we took the
extraordinary step of retaining jurisdiction over the case while
the BIA addressed the issues on remand. Id.
Castañeda's long ordeal now appears, finally, to be
ending. On October 11, 2011, the BIA held that military officers
associated with the Accomarca massacre constituted a cognizable
social group and that Castañeda suffered past persecution for his
membership in that group. The BIA remanded to the IJ to consider
1
As the district court noted in its 2010 decision granting
Castañeda's release on bond, there was no explanation for the
almost two-year delay between Peru's extradition request and the
U.S. government's commencement of extradition proceedings. See
Castañeda III, 739 F. Supp. 2d at 58.
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whether the government could rebut the presumption that Castañeda
had a well-founded fear of persecution if he returned to Peru. On
February 6, 2012, the IJ granted asylum to Castañeda and his
family. The government has not appealed this decision, and it is
now administratively final.
However, the government presents us with one more
wrinkle: it claims that we lack the authority to issue a final
judgment. We reject this argument. When we remanded this case to
the BIA in Castañeda IV, we explicitly retained jurisdiction for
the express purpose of ensuring a speedy resolution to this case.
638 F.3d at 363-64. The appropriate course for this court,
therefore, is to issue a final judgment closing the case.
Given that all factual and legal issues relating to
Petitioners' eligibility for asylum have now been resolved in their
favor by the administrative agency, the petition for review over
which we retained jurisdiction in Castañeda IV is hereby dismissed
as moot, and the Clerk of Court is directed to issue final
judgment. In reaching this disposition, we take no position on the
deadline for filing, or potential merit of, an application for
attorneys' fees under the Equal Access to Justice Act.
It is so ordered.
cc: Ms. Bing, Mr. Crapo, Ms. Ferrier, Mr. Joyce, Mr. Latour and Ms.
Moresi.
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