United States Court of Appeals
For the First Circuit
No. 05-2384
DAVID EDUARDO CASTAÑEDA-CASTILLO;
CARMEN JULIA DE LA CRUZ-CASTAÑEDA;
PIERA DINA CASTAÑEDA; PÍA MARIBEL CASTAÑEDA,
Petitioners
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.
William P. Joyce, with whom Joyce & Associates, P.C. was on
brief, for petitioners.
Robbin K. Blaya, Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, with whom Peter
Keisler, Assistant Attorney General, and Greg D. Mack, Senior
Litigation Counsel, were on brief, for respondent.
September 29, 2006
*
Of the Ninth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. Petitioners David Eduardo
Castañeda-Castillo ("Castañeda"), his wife, and two daughters1 ask
us to review a decision of the Board of Immigration Appeals ("BIA")
denying their applications for asylum and withholding of removal.
The BIA based its decision on a finding that the petitioners were
barred from being granted asylum or withholding of removal because
Castañeda had assisted or otherwise participated in the persecution
of others on the basis of their political opinion. See 8 U.S.C.
§§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i). After careful review, we
grant the petition for review and reverse the decision of the BIA.
I. Facts and Procedural Background2
1
Castañeda's wife and daughters were included in his asylum
application.
2
The dissent claims that our discussion of the facts is
"materially incomplete" and proceeds to submit its own version of
the facts. Although it is certainly entitled to do so, we have
some basic disagreements with this rendition both by reason of its
content and its emphasis. With due respect, we believe that
certain parts of its recitation are either irrelevant or taken out
of context and clearly the subject of explanation. Perhaps a more
egregious problem is presented by the inclusion of certain
additional details, particularly those contained in page 9, line
11, through page 10, line 4, of the dissent, which recount the
actions of persons for whom Castañeda was not responsible and who
were without his command or authority, and additionally, for which
Castañeda was absolved of responsibility. The inclusion of this
information in the dissent's recount is thus not only unnecessary
and irrelevant to a discussion of the issues before us, but also is
unduly inflammatory and distracts from the proper focus of the
legal issues raised by this appeal. The offending facts, although
part of the decisions below, and undoubtedly an improper factor in
the erroneous outcome reached, add nothing material to the appeal
before us. Throughout this opinion we will, in footnotes and
elsewhere, explain where we have disagreement with the dissent's
recitation of these and other matters.
-2-
Castañeda is a native and citizen of Perú and was an
officer in the Peruvian army. He and his family entered the United
States with tourist visas at Miami, Florida, on August 19, 1991.
They overstayed, and Castañeda applied for asylum in January 1993,
claiming that he and his family had been persecuted by the
terrorist group Sendero Luminoso ("Shining Path") while they were
in Perú.3 Castañeda was interviewed at the Immigration and
Naturalization Service's ("INS")4 asylum office on May 19, 1999.
The asylum officer referred the application to an Immigration Judge
after finding that Castañeda had not met his burden of proof for
establishing eligibility for asylum. On July 7, 1999, the INS
issued Notices to Appear ("NTA") to Castañeda and his family,
3
The Shining Path is a Maoist guerrilla group that "is among the
world's most ruthless guerrilla organizations" and "[e]ngages in
particularly brutal forms of terrorism, including the
indiscriminate use of bombs." The Institute for Counter-Terrorism,
available at http://www.ict.org.il/inter_ter/orgdet.cfm?orgid=40
(last visited on August 2, 2006). The State Department has
designated the Shining Path as a foreign terrorist organization.
See United States Dept. of State, Country Reports on Terrorism,
2 0 0 4 ( A p r i l 2 0 0 5 ) , a v a i l a b l e a t
http://www.state.gov/s/ct/rls/45394.htm (describing the Shining
Path as "one of the most ruthless terrorist groups in the Western
Hemisphere" and noting that "[a]pproximately 30,000 persons have
died since Shining Path took up arms in 1980"). The Shining Path
has perpetrated mass executions and committed "numerous massacres
of entire families including young children and the elderly."
Anthony James Joes, Resisting Rebellion: The History and Politics
of Counterinsurgency, 117 (2004).
4
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
-3-
charging them with removability under Section 237(a)(1)(B) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),
for remaining in the United States for a time longer than
permitted.
Beginning February 16, 2000, Castañeda and his family
appeared at twelve different hearings before two different
Immigration Judges.5 Castañeda was the only person to testify at
the hearings.6 We glean the following facts from his testimony and
the evidence presented at the hearings.
Castañeda joined the Peruvian military in 1979. In 1983,
upon graduation from military academy, he was commissioned as a
second lieutenant and assigned to a motorized infantry battalion.
5
The first Immigration Judge left the bench after Castañeda had
already presented his entire testimony but before making a
decision. The second Immigration Judge decided to hear Castañeda's
testimony again "in order to make [my] own determination of not
only the lead respondent's credibility, but the facts before [me]."
6
Castañeda testified in Spanish. His testimony was translated
into English by an interpreter. During the government's cross-
examination of Castañeda, the interpreter participated in the
hearing via telephone and was not actually in the courtroom. This
caused problems during the testimony, as the interpreter often had
to ask Castañeda to repeat his answers or the government to repeat
its questions so that she could interpret them and often had to
clarify or correct the original interpretations. We think it is
important to note this fact because, in our view, some of the
supposed inconsistencies or evasiveness mentioned by the dissent
were more likely than not simple problems in translation. For
example, when asked whether he could contact other patrols by radio
during a military operation on August 5, 1985, Castañeda originally
replied "No. I did not on my radio." The Immigration Judge then
stated "That's not what I asked" and asked the question again, to
which Castañeda replied "No. I could not."
-4-
His original duties included teaching military training, such as
the use of weaponry, handling of prisoners, community service, and
guarding equipment. After twelve months, Castañeda was transferred
to another unit in Tumbes, a region in northern Perú near the
border with Ecuador. Castañeda testified that, during this time,
the military was fighting the Shining Path. Most of this fighting,
however, occurred in the Ayacucho region in the Andes,
approximately 400 miles to the south of Tumbes. While at Tumbes,
Castañeda was a platoon commander and his duties included training
and instructing the men in his section.
In January 1985, Castañeda was transferred to Battalion
34, an anti-terrorist battalion. Battalion 34 was located in the
Ayacucho region, which is the birthplace of the Shining Path, and
was referred to as the "emergency zone" due to the Shining Path's
presence in the region.7 The battalion was divided into different
bases. Each base was led by a captain or lieutenant. According to
Castañeda, each base had around forty men. Castañeda's
responsibilities increased in Battalion 34, as his duties included
both training and leading troops out on patrols. Upon his arrival
at Battalion 34, Castañeda was assigned to a base in Sacchaeamba,
a rural mountainous area. Castañeda was the head of a twenty-man
7
According to the State Department's 1985 Country Reports on
Human Rights Practices in Perú, the emergency zone was an area in
which there was a declaration of a state of emergency and the armed
forces were given full civil and military authority.
-5-
patrol, and went out on his first patrol one day after arriving at
Sacchaeamba.
Castañeda testified that a major whose code name was Wolf
instructed him on what areas to patrol. Wolf, who was not at
Castañeda's base, would communicate the patrol area to the
commander of the base by radio. The base commander would then
relay that information to Castañeda. Castañeda testified that, at
times, the patrol route was very specific, while at other times the
patrol route was general and it was left up to Castañeda to decide
the route. Castañeda also testified that his patrol sometimes
operated independently of other patrols, while at other times his
patrol's movements were coordinated with the movements of other
patrols.
Castañeda testified that when he was on an independent
patrol his base commander would inform him of other patrols'
positions via radio in order to avoid overlapping. He also
testified that he sometimes made direct radio contact with other
patrols, and that it was important to know the location of other
patrols in the area in order to coordinate movement.8 When there
8
The dissent states that Castañeda said it was "'very important
to coordinate the movement.' Castañeda said his patrol would 'keep
contact with the base by radio,' and at least sometimes would make
direct radio contact with other patrols in the area." One possible
implication of the dissent's phrasing is that Castañeda was stating
that radio contact with other patrols was important to coordinate
the movement. However, we wish to be clear that Castañeda was not
testifying that radio contact with other patrols was important to
coordinate movement. Rather, his statement that it was "important
-6-
were several patrols conducting a mission, Castañeda testified that
each patrol leader responded to his base commander, who in turn
responded to the battalion commander, who coordinated the mission
with other base commanders.
According to Castañeda, before going out on any patrol,
he was briefed on the mission of the patrol by the base commander.
He was given an order that explained the situation on the ground,
the possible location of the enemy, what the patrol would be doing
on the mission, what route to take, and what equipment to carry.
If, while on patrol, one of his men was injured, Castañeda was
instructed to radio the base so that the man could be evacuated.
He also had flares in the event that radio communication was down.
Castañeda testified that at times he had difficulty making radio
contact due to interference caused by the dense terrain.
There were two types of patrols, combat and
reconnaissance. Combat patrols engaged the enemy, while
reconnaissance patrols gathered information. Most of the patrols
were conducted at night in order to avoid detection by the Shining
Path. Castañeda testified that if, while on a reconnaissance
to coordinate the movement" was in response to the question "Was it
important to know the location of other[s] in your area?" From the
full context of the statement, it is clear that Castañeda was
simply stating that it was important to know the location of other
patrols to coordinate movement, not to have actual radio contact
with them. Castañeda had already testified that he kept in radio
contact with his base and that his base commander would let him
know where other patrols were, although he also sometimes had
direct radio contact with the other patrols.
-7-
patrol, he received intelligence that the Shining Path was in the
area, he would immediately radio the base commander for
instructions on what action to take. He could not engage the enemy
without approval from his commander unless the patrol was being
attacked or was in some sort of danger. Castañeda testified that,
during his time at Sacchaeamba, he went on approximately twenty-
five patrols, most of them reconnaissance. He never had any direct
contact with the Shining Path.
Sometime in June or July of 1985, Castañeda, while still
in Battalion 34, was transferred to a base in Vilcashuan, where he
remained the head of a patrol. He testified that the procedures
and missions were the same as they had been at the base in
Sacchaeamba.
Castañeda further testified that he was involved in a
significant operation (the "Operation") in August 1985, about a
month after he arrived at the base in Vilcashuan. The Operation
involved four patrols. Two patrols, code-named Links 6 and Links
7, were to enter a village named Llocllapampa in the Accomarca
zone9 to search for Shining Path members. Links 7 was led by Sub-
Lieutenant Telmo Hurtado ("Hurtado"), and Links 6 was led by
Lieutenant Riveri Rondón ("Rondón"). Two other patrols were
9
This zone was located within the Ayacucho region, i.e., the
emergency zone.
-8-
assigned to block escape routes from the village.10 Castañeda led
one of these blocking patrols, code-named Tiger. Castañeda could
not remember the name of the leader of the other blocking patrol,
code-named Wolf. According to Castañeda, he received his orders a
few hours before his patrol left from his base commander, who
received them from the command of the division located in the city
of Humanaga. Castañeda testified that he was briefed on the
mission of the other patrols before he left. He was told that
there were between forty and sixty Shining Path guerrillas in the
village. Castañeda's patrol took vehicles part of the way and went
on foot the rest of the way. Castañeda and his men were armed with
machine guns and a rocket launcher. They wore Peruvian military
uniforms and also had masks on, both to avoid recognition by the
Shining Path and to keep their faces warm. One of Castañeda's men
had a radio to contact their base commander. Castañeda testified
that he was near his radio operator during the Operation.
Castañeda's patrol was the first to arrive at its
destination. Once at the assigned location, which was three to
five miles away from the village, Castañeda separated his men into
three groups. They hid themselves about thirty meters from
different sides of the path. Castañeda testified that he was the
one who would have made the decision whether to open fire if anyone
10
Apparently, Llocllapampa is located between two mountains, and
there were very few paths into or out of the village.
-9-
came down the path. He testified that he was in radio contact with
his base commander, who relayed any information Castañeda provided
back to the division headquarters. Castañeda testified that he was
not informed when the other patrols were ready to attack and he did
not know when the attack began. Castañeda testified that he was
only able to communicate with his base; he did not have the
frequencies for any of the other patrols and therefore could not
hear any of their communications.11 Castañeda also stated that none
of the other patrols had his frequency, although each of the two
attacking patrols had the other's frequency.
Apparently, the Wolf blocking patrol got lost and never
reached its assigned destination. Castañeda testified that the two
other patrols, Links 6 and 7, entered the village and massacred
civilians.12 A subsequent report by a Peruvian Senate Human Rights
11
The dissent states that, when asked if he was informed what
frequencies the two attack patrols were using, Castañeda replied
"That's correct." However, the dissent leaves out the rest of
Castañeda's reply. The full quote is "That's correct, but both
patrols entered from the same place and where those patrols are
directed, four patrols are directed from the same head of unit, but
these orders came from the division. I was directly directed by
the head of commander of base." From this full quote, it is clear
that Castañeda misunderstood the question, and was explaining that
the four patrols were directed by a division head, and that his
orders during the Operation came directly from the head commander
of his case. A few questions later, Castañeda explicitly clarified
that he could not contact the other patrols because he did not have
their frequency.
12
The dissent notes that, when asked what happened in the village,
Castañeda originally stated that "[o]ne of the patrols . . .
committed excesses." The implication behind the inclusion of this
fact is that Castañeda was being evasive. This is not the case.
-10-
Commission ("Human Rights Commission") found that up to sixty-nine
civilians were killed, including many women and children.
According to Castañeda, he did not find out about the massacre
until nearly three weeks after the Operation, when he heard that
Hurtado had admitted to executing civilians. He stated that he
heard this news on conventional radio. He testified that he did
not learn exactly how many civilians were killed because different
reports contained different estimates.13 According to Castañeda,
he and his men stayed in their positions until his base commander
told him the Operation was over and ordered him to return to base.
Castañeda testified that he and his men never saw anyone come down
From the transcript, it appears that, after Castañeda testified
about "excesses," the Immigration Judge interjected to ask the
interpreter what she had said. The government then asked Castañeda
if he could be more specific, and Castañeda immediately replied
that the patrol had executed civilians. We do not think that this
sequence of events indicates any evasiveness on Castañeda's part.
13
The dissent argues that Castañeda's testimony shows that he was
evasive regarding his knowledge of the number of civilians killed
in Llocllapampa. This is incorrect. The Human Rights Commission
noted that there were three different reports regarding the number
of civilians killed: twenty-five, forty, and sixty-nine. It also
noted that the exact number could not be determined. To this day
the exact number of civilians killed is unknown. Castañeda was
therefore entirely correct in stating that he never learned the
exact number of people killed.
-11-
the path and never fired any shots.14 Once back at base, he was
debriefed.15
News of the massacre was eventually reported by various
media outlets and a formal investigation followed. Castañeda
testified before a Peruvian Senate Human Rights Commission on
September 26, 1985. He was represented by a military lawyer at the
hearing. The Human Rights Commission concluded that what occurred
during the Operation amounted to genocide. It noted that the
probable number of people killed in the massacre was sixty-nine,
but that it was hard to determine the exact number because many of
the bodies had been destroyed by explosions from grenades. It also
noted that Castañeda's patrol, Tiger, was "not involved in any
confrontations with fugitive civilians."16 The Human Rights
14
This testimony is supported by other aspects of the record,
which we discuss infra.
15
The dissent makes much of the fact that Castañeda was debriefed,
arguing that the debriefing means it is unlikely that he did not
find out about the massacre until three weeks later, as he claimed.
We have two responses. First, Castañeda stated that the
"debriefing" simply meant that he gave a report to his base
commander. He gave no indication that he met with the other
patrols or discussed what the other patrols did, and there is no
evidence in the record to controvert that testimony. Second, it
would make sense that those who slaughtered the civilians would not
tell other soldiers who were not involved. One would expect that
those who participate in the murder of innocent civilians would not
openly discuss what they have done with others who did not engage
in such atrocities.
16
As previously noted, we are concerned that the dissent's
description of the murders of the villagers is inflammatory, and we
therefore want to emphasize that it is undisputed that Castañeda
was not involved in the killing of any civilians. He was also
-12-
Commission found that Links 7, under Hurtado's command, was the
group that carried out the massacre.17
The massacre was also documented by the State
Department's 1985 Country Report on Human Rights Practices for
Perú. The 1985 State Department Report states that "[a]n Army sub-
later absolved of responsibility by a military court, a fact which
we discuss in more detail below.
The dissent is equally inflammatory in speculating, in footnote 3,
that "if Hurtado was acting on orders, rather than in the heat of
the moment, it is much more likely that Castañeda would have known
about the massacre before it happened". Such speculation loses
sight of the facts of the case: there is no evidence that Hurtado
was acting on orders to commit the massacre, and there is no
evidence that Castañeda would have known of these hypothetical
orders had they ever been given.
17
The dissent notes that the Human Rights Commission stated that
Hurtado "is only a piece of the larger picture and it is necessary
to study whether he acted on virtue of expressed verbal orders."
One possible implication of this isolated fact is that Castañeda
was perhaps part of the "larger picture." However, taking the
statement within the context of the report, it is clear that the
Commission was concerned that persons with a higher military rank
had ordered Hurtado to kill the civilians. In particular,
elsewhere in the report the Commission refers to possible "verbal
orders" given to Hurtado by a general named Wilfredo Mori Orzo.
Nothing in the report indicates Castañeda had any orders beyond
those to watch the path for any Shining Path guerrillas or that
Castañeda was somehow part of the "larger picture."
A more egregious misconstruction of the facts of the case is the
dissent's statement that "[i]t is disputed whether [Castañeda] knew
about the massacre before or while it took place." Again, there is
no evidence that the massacre was planned or that Castañeda had
knowledge of these plans if they ever existed. The IJ did dispute
whether Castañeda learned, via radio contact, of the massacre as it
took place. However, this dispute is irrelevant. Castañeda did
not have authority over Hurtado and he was located 3 to 5 miles
outside of Llocllapampa. Had Castañeda learned of the massacre as
it transpired, he would not have been able to either assist or stop
it.
-13-
lieutenant and three other officers were responsible for the
Accomarca massacre of some 25 to 69 peasants. A separate
investigation by the Senate Human Rights Commission supported these
conclusions." Castañeda admitted that he was one of the officers
referred to in the 1985 State Department Report. The 1985 State
Department Report indicated that the men involved in the massacre
were charged in the military and civilian systems, and that the
Peruvian Supreme Court would decide final jurisdiction.18
The Human Rights Commission recommended that those
involved be tried in civilian -- as opposed to military -- court.
However, the Peruvian Supreme Court decided that the military
courts had jurisdiction. Castañeda, along with Hurtado, Rondón,
and the officer who led the missing Wolf patrol, was charged in a
military court martial in March or April 1986. Castañeda was
charged with first degree murder, homicide, and abuse of authority.
In connection with the court martial, Castañeda appeared in a
military court four or five times. He was represented by a
civilian lawyer that he paid for. A judge presided over the
proceedings. At the court martial, Castañeda testified in his own
18
In stating that "three officers [including Castañeda] were
responsible" for the massacres, the report was drawing from initial
reports by the Peruvian military and the Human Rights Commission.
It should not be taken as a definitive finding that Castañeda was
responsible for the massacre, especially since it was released in
February 1986 and thus does not take into account Castañeda's
subsequent acquittal by the Peruvian military court system
following a formal proceeding. We discuss the acquittal below.
-14-
defense, answering questions from the judge and the prosecutor. He
stated that he did not know if he had the right to examine other
witnesses and did not remember if he was told that he had that
right, but that no witnesses testified at any of the hearings.
When asked by the government what evidence the prosecution
presented against him, Castañeda stated that "[t]hey didn't show me
evidence regarding the patrol that I had." Castañeda's evidence
included the presentation of an operation chart that specified the
position of each patrol.
Castañeda stated that he was found innocent of all
charges. In support of this, he produced a document from the
Supreme Council of Military Justice showing that the Appeals
Division affirmed the dismissal of the charges against him.19
Castañeda provided no other evidence related to his court martial.
However, the State Department's 1999 Country Report on Human Rights
Practices for Perú indicates that Castañeda was in fact acquitted.
Hurtado was the only officer convicted by the military
tribunal. Castañeda testified that Hurtado was convicted of
"participating in the assassination of those village people." The
government's attorney then asked "[s]o [Hurtado] was convicted of
murder?," to which Castañeda replied, "[y]es." Castañeda also
testified that Hurtado was incarcerated in a military prison, but
19
From the record, it appears that the Peruvian military justice
system has three levels: a trial level, an appeals level, and the
Supreme Council of Military Justice as the highest level.
-15-
that he did not know the length of Hurtado's sentence. When asked
whether Hurtado was ever discharged from the military, Castañeda
testified that he thought so, because that was the result required
by Perú's military code, but he could not be sure.20
The government then introduced evidence -- in the form of
the State Department's 1995 Country Report on Human Rights
Practices for Perú -- that Hurtado had reappeared on active duty
and had been promoted to captain. When asked if he had heard about
this, Castañeda stated "I did not know," and later testified that
it would surprise him to know that Hurtado had been promoted after
he was convicted and sentenced.21 At this point, the government
introduced the 1999 State Department Report, which indicated that
Hurtado had been convicted only for abuse of authority; had been
promoted to captain at some point between the massacre and 1993,
when he was finally sentenced; and had been released from prison
under a general amnesty passed in 1995 by then President Alberto
Fujimori and the Peruvian Congress. When asked if Hurtado had been
convicted only for abuse of authority, Castañeda replied: "Clearly,
I don't know. What I manifested what I know is that the court
found him guilty of that murder and I'm not an expert on the law,
20
The record indicates that Hurtado's case was still pending when
Castañeda left Perú in 1991. A final disposition of Hurtado's case
did not occur until 1993.
21
Castañeda did testify that, after he came to the United States,
he had heard rumors that Hurtado had been promoted to captain, but
he did not know if they were true.
-16-
but maybe the murder is instead of the disobedience, sorry, the
abuse of authority."
Castañeda testified that he was aware of atrocities
committed by the Shining Path against police officers, soldiers,
and civilians. He admitted that he was aware that, prior to August
1985, the Peruvian military had at times engaged in extrajudicial
killings, torture, and arbitrary detentions. When asked to
explain, he stated that he had heard of officers who had detained
terrorists or possible terrorists in an unjust manner, and had also
heard of detained prisoners being executed. Castañeda testified
that he had not heard about any civilians being detained or killed.
According to Castañeda, some of these actions by the Peruvian
military occurred in the emergency zone, but it "was not the norm."
At one point, the government presented Castañeda with a portion
from the 1985 State Department Report, which stated that "[t]otal
deaths related to antiterrorist operations of the security forces
are estimated by human rights groups as being in the thousands for
1980-85." Castañeda testified that the number sounded incorrect.
Castañeda also testified that the Peruvian military had
a good reputation for investigating and prosecuting military
members for human rights violations. In an attempt to rebut this
testimony, the government introduced evidence that in 2004 the
current Peruvian Prime Minister had called for the annulment of
previous rulings by the military justice system "that breach human
-17-
rights, so that there can be in the future no further excuses or
pretexts to avoid persecution." Castañeda denied having any
knowledge of these developments, and stated that he did not know
whether any annulment of prior rulings would affect his case.
After the court martial hearings concluded, Castañeda
returned to duty. He experienced no professional problems as a
result of the charges brought against him. In January 1991, he was
promoted to the rank of captain. However, due to the publicity
surrounding the massacre and the court martial, Castañeda's name
and face had appeared in certain newspapers detailing the
allegations against him. As a result, he and his family began to
receive death threats and to experience other problems from the
Shining Path. In April or May of 1986, Shining Path members set
off explosives in front of the home of Castañeda's parents.
Castañeda knew the Shining Path set off the explosives because they
left pamphlets with the Shining Path's seal. In June of 1986,
Shining Path members allegedly shot at Castañeda and set off an
explosive device while he was waiting for public transportation
near his home. On other occasions, the Shining Path left
propaganda containing written threats at the homes of both
Castañeda and his parents. Castañeda stated in an affidavit that
he had been threatened on over twenty occasions. In 1989, Shining
Path members allegedly attempted to kidnap one of Castañeda's
daughters from school. Finally, in 1990, one of Castañeda's
-18-
neighbors, who was also in the military and had been receiving
threats from the Shining Path for several years, was murdered in
his home and in front of his family by the Shining Path.
Following his neighbor's murder, Castañeda decided to
take his family and leave Perú. He obtained tourist visas for
himself and his family, retired from the military, and came to the
United States.
On October 4, 2004, the Immigration Judge found that
Castañeda was barred from applying for asylum and withholding of
removal because he had assisted or otherwise participated in the
persecution of others on account of their political opinion. In
support of this determination, the Immigration Judge first found
that Castañeda was not credible. The Immigration Judge also found
that, even if Castañeda were credible, he had assisted or otherwise
participated in the persecution of others on account of their
political opinion.
Castañeda appealed to the BIA, which affirmed the
Immigration Judge on September 9, 2005. Writing its own opinion,
the BIA affirmed the adverse credibility finding and stated that,
even if Castañeda were credible, he had assisted or otherwise
participated in the persecution of others. Castañeda has timely
appealed to this court. He argues that the BIA's adverse
credibility determination is not supported by substantial
-19-
evidence,22 that the BIA erred in disregarding the decision by the
Supreme Council of Military Justice purporting to affirm the
dismissal of charges against him, and that the BIA erred in finding
that he had assisted or otherwise participated in the persecution
of others on account of their political opinion.
II.
A. Standard of Review and Legal Standard
Under the INA, an alien is ineligible for asylum or
withholding of removal if he or she "ordered, incited, assisted, or
otherwise participated in the persecution of an individual because
of the individual's race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). Under the applicable
regulations, if evidence is produced showing that the alien engaged
in such persecution, the alien must prove by a preponderance of the
evidence that he or she did not engage in such persecution. 8
C.F.R. §§ 1208.13(c)(2)(ii), 1208.16(d)(2).23
22
Castañeda's petition was filed after the passage of the Real ID
Act of 2005, Pub. L. 109-13, 119 Stat. 302. The Real ID Act
"alters, among other things, the standards governing credibility
determinations and the need for corroboration of testimony in
asylum cases." Dhima v. Gonzáles, 416 F.3d 92, 95 n.3 (1st Cir.
2005). However, because Castañeda's asylum application was filed
well before the effective date of these provisions of the Act, the
provisions are inapplicable here.
23
The regulations dealing with asylum applications filed on or
after April 1, 1997 do not explicitly contain this burden shifting
provision. See 8 C.F.R. § 1208.13(c)(1). However, because
Castañeda's application was filed in 1993, there is no issue
-20-
"Where the BIA does not adopt an IJ's opinion but instead
makes an independent, superceding decision, we review the decision
of the BIA, and not that of the IJ." Xu v. Gonzáles, 424 F.3d 45,
48 (1st Cir. 2005). "We review factual findings and credibility
determinations . . . under the deferential substantial evidence
standard." Dhima v. Gonzáles, 416 F.3d 92, 95 (1st Cir. 2005).
Under this standard, we may not reverse the BIA's factual findings
"'unless any reasonable adjudicator would be compelled to conclude
to the contrary.'" Kheireddine v. Gonzáles, 427 F.3d 80, 88 (1st
Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)). However,
"credibility findings resting on analysis of testimony rather than
on demeanor may deserve less than usual deference." Cordero-Trejo
v. INS, 40 F.3d 482, 487 (1st Cir. 1994) (citation and internal
quotation marks omitted). Finally, we review legal questions de
novo. Ziu v. Gonzáles, 412 F.3d 202, 204 (1st Cir. 2005).
B. Credibility Determination
1. The BIA's Findings
The BIA gave five different reasons for its affirmation
of the Immigration Judge's adverse credibility determination: (1)
that the military tribunals appeared to be fraudulent and Castañeda
failed to submit documentary evidence of the proceedings beyond the
document that showed his acquittal; (2) that Castañeda gave
regarding what the burden should have been before the Immigration
Judge.
-21-
inconsistent testimony regarding whether or not he was in radio
contact with the other patrols during the Operation; (3) that
Castañeda's demeanor during questioning on radio communications
indicated a lack of veracity; (4) that Castañeda was evasive
regarding the extent of human rights violations by the Peruvian
military; and (5) that Castañeda was not forthcoming about what
happened to Hurtado. Having carefully reviewed these reasons,
along with the record, we believe that the adverse credibility
determination was not supported by substantial evidence. We
address each reason in turn.
The BIA first faulted Castañeda for not providing
documentary evidence of what happened at his military court martial
other than the document -- which the BIA found was not properly
authenticated -- from the Clerk's Office of the Supreme Council of
Military Justice showing that the Appeals Division had affirmed the
dismissal of the charges against him. The BIA also stated that
there was "evidence that the military tribunal was a way in which
to grant impunity to the alleged persecutors who took part" in the
Operation.
We begin by noting that the document from the Clerk's
Office of the Supreme Council of Military Justice is not the only
evidence supporting a finding that Castañeda was acquitted. The
1999 State Department Report specifically states that, except for
Hurtado, "all the other defendants" were acquitted of any
-22-
involvement in the massacre. Given Castañeda's testimony and this
documentary evidence, coupled with the lack of any evidence to the
contrary, we conclude that it is uncontroverted that he was in fact
acquitted.24
The Immigration Judge concluded -- and the BIA agreed --
that the military tribunals were a fraud on the basis of two
documents: (1) the 1995 State Department Report, which stated that
the military tribunal system often accorded impunity to the
perpetrators of human rights abuses; and (2) an article from Latin
American Weekly Report, dated August 31, 2004 (the "Article").
We begin our discussion of the military tribunals by
noting that the Supreme Council of Military Justice, along with its
lower tribunals, is a duly constituted judicial body in Perú. This
24
The BIA also stated that "the respondent's evidence of his
dismissal is not necessarily the legal equivalent of a criminal
finding that he was innocent." This statement is belied by the
record, as the 1999 State Department Report specifically notes that
all the defendants (including Castañeda) except Hurtado were
"acquitted." To the extent the BIA was requiring an actual finding
of "innocent," in our view such a requirement would be unreasonable
as it goes beyond what even our own justice system offers. Under
our own justice system, defendants who are "acquitted" are found
"not guilty," they are not found "innocent."
The dissent argues that the BIA did not require an actual
finding of innocence, but simply required Castañeda to show his
innocence through court documents or otherwise. We disagree. The
BIA specifically discounted Castañeda's evidence because it was not
"the legal equivalent of a criminal finding that he was innocent."
(emphasis supplied). Our point is that, under our own justice
system, it would have been impossible for Castañeda to provide such
a finding, and it was therefore unreasonable to discount the
evidence of his acquittal simply because it is not a criminal
finding of innocence.
-23-
military system, which was granted jurisdiction over Castañeda's
case by the Peruvian Supreme Court, acquitted Castañeda.25 In
general, American courts will give deference to decisions of
foreign tribunals. See, e.g., Finanz AG Zurich v. Banco Económico,
192 F.3d 240, 246 (2d Cir. 1999) (discussing deference to
determinations made by foreign courts due to principles of
international comity); Casey v. Dep't of State, 980 F.2d 1472, 1477
(D.C. Cir. 1992) (discussing deference to a determination of a
foreign court in an extradition proceeding); Chiaramonte v. INS,
626 F.2d 1093, 1098 (2d Cir. 1980) (discussing the principle of
international comity in relation to criminal convictions obtained
in a foreign country); Restatement 2d, Conflict of Laws § 98. In
the instant case, the Immigration Judge and BIA chose not to give
any weight whatsoever to Castañeda's acquittal. That determination
was not supported by substantial evidence.
As for the Article, it reported on a conflict between
Perú's civilian and military justice systems following the Peruvian
Supreme Court's ruling that the military system's jurisdiction
25
There is some indication that the Immigration Judge, and perhaps
the BIA, faulted Castañeda for not providing evidence of an
acquittal from the civilian court system of Perú. We wish to note
that, to the extent that the decision rested on these grounds, it
was erroneous. The highest body of the civilian court system, the
Supreme Court of Perú, determined that the military system had
jurisdiction over Castañeda's case. There is therefore no doubt
that the case was properly before the military courts, and there is
simply no reason to fault Castañeda for not providing evidence of
acquittal in the civilian system.
-24-
extended only to offenses committed in the furtherance of military
duties (and not to human rights violations). It also contained a
quote from the Peruvian Prime Minister calling for "the annulment
of [military] rulings that breach human rights, so that there can
be in the future no further excuses or pretexts to avoid
prosecution." We note that there is absolutely no indication that
the Prime Minister considered the ruling in Castañeda's case to
have breached human rights. Further, the Article appears to only
talk about events that occurred in the 1990s under the regime of
former President Fujimori. The Article does not make any allusion
to events that occurred in the 1980s. Finally, although the
Peruvian Prime Minister at the time of the Article called for the
annulment of certain rulings, there is no evidence whatsoever that
any rulings were annulled, much less Castañeda's acquittal. In
sum, there is no indication that the Article is in any way
applicable to Castañeda's particular case, nor that the Peruvian
Prime Minister's statements were anything more than pure rhetoric.
We do not think that the Article was enough to overcome the
deference ordinarily due a decision by a duly constituted foreign
tribunal. In fact, it is nothing short of anomalous that undue
weight is given to a magazine "article", yet no weight is given to
a finding of a duly constituted tribunal.
Regarding the 1995 State Department Report, we note that
it does mention that Hurtado had reappeared on active duty after
-25-
serving some jail time. However, other parts of the record
indicate that in 1995, then-President Fujimori and Perú's Congress
passed a law extending amnesty to military members convicted of
human rights abuses between 1980 and 1995. Thus, it appears that
Hurtado was released from jail because he had been granted amnesty,
not because the original trial and conviction were somehow
fraudulent. We certainly do not see how a grant of amnesty to
Hurtado several years after Castañeda left Perú should affect
Castañeda's original acquittal, nor do we think that it should
overcome the deference we usually give to the judgment of a foreign
tribunal. We therefore conclude that the BIA's finding that
Castañeda's trial was a fraud is not supported by any evidence,
much less substantial evidence.
Second, the BIA found that Castañeda "gave inconsistent
testimony regarding whether and when he was in radio contact with
the other patrols involved" in the Operation. According to the
BIA, Castañeda indicated that it was important to have radio
contact, but later specifically testified that he was not in
contact with other patrols on the day of the massacre. The BIA
also rejected Castañeda's argument that the Immigration Judge had
gone beyond the area of its expertise and "ventured into the realm
of Peruvian military tactics," because Castañeda's own testimony
made it "clear that radio contact was important for purposes of
coordination as well as efficiency and protection."
-26-
There are several problems with the BIA's reasoning.
First, while Castañeda testified early on that it was important to
have radio contact, his testimony indicates that he was referring
to radio contact with his base, not other patrols. Castañeda
testified that he only sometimes had contact with other patrols.
Further, Castañeda specifically testified about the coordination of
patrols for a mission:
Each head of a patrol will respond to the
immediate boss, the head of base. The head of
base at the attack, they will inform the
command of the battalion who can communicate
and coordinate directly with the head of
patrol and give another specific order or can
get contact among heads of patrols.
In other words, Castañeda testified at the outset -- before he was
asked about whether he had any radio contact with other patrols the
day of the Operation -- (1) that it was important to have radio
contact with his base commander, (2) that in coordinating attacks,
the base commander would contact a battalion commander who
coordinated the various patrols, and (3) that he only sometimes had
direct contact with other patrols. We therefore see no
inconsistency in Castañeda's testimony that, while he had radio
contact with his base commander during the Operation, he did not
have radio contact with the other patrols on the day in question.
It also appears from the record that the Immigration
Judge, and perhaps the BIA, simply found this testimony illogical.
Such a finding deserves less deference than other types of
-27-
credibility findings because it is based on an analysis of the
testimony. Cordero-Trejo, 40 F.3d at 487. To the extent that the
BIA's finding rested on this ground, we would agree with
Castañeda's point that the BIA ventured outside the area of its
expertise and into the realm of Peruvian military tactics. As
such, we think the BIA's finding on this point is not supported by
substantial evidence.
Third, the BIA accorded weight to the Immigration Judge's
finding that during testimony about radio communication, Castañeda
was "blinking his eyes in an unusually rapid rate." While demeanor
evidence is peculiarly within the purview of the trier of fact, we
are not persuaded -- given the problems we have found with the
other aspects of the credibility findings -- that rapid blinking
alone is enough to find Castañeda not credible.26
26
The dissent seizes on the both the Immigration Judge's and BIA's
use of the word "demeanor," noting in several places that Castañeda
was found not credible based on "observations" of his demeanor.
The implication of the dissent's emphasis on demeanor evidence is
that the Immigration Judge and BIA based the adverse credibility
finding on numerous problems with Castañeda's demeanor. For
example, the dissent notes that the Immigration Judge stated that
he had "carefully observed [Castañeda's] demeanor . . . and found
him vague, evasive, and non-responsive." However, as the dissent
also notes, a hearing officer who makes an adverse credibility
determination must support the determination with specific findings
in order to be accorded deference. Aguilar-Solís v. INS, 168 F.3d
565, 570 (1st Cir. 1999). The only specific finding that the
Immigration Judge made regarding Castañeda's demeanor -- as opposed
to the content of his testimony -- was that during testimony about
radio communication, Castañeda was "blinking his eyes in an
unusually rapid rate." We readily agree that demeanor evidence is
peculiarly within the purview of the trier of fact. However,
absent other evidence of a lack of credibility, we cannot affirm an
-28-
Fourth, the BIA affirmed the Immigration Judge's finding
that Castañeda was evasive regarding the extent of human rights
violations committed by the Peruvian military. From our review of
the record, this finding mischaracterizes Castañeda's testimony.
He was not evasive when confronted with statistics from State
Department Reports. Castañeda readily admitted that he was aware
of instances in which the Peruvian army had engaged in
extrajudicial killings, disappearances, torture, and arbitrary
detentions. He simply disagreed with the numbers. Castañeda
consistently testified that abuses by the Peruvian army were not
the norm and that only a minority of the military engaged in such
practices. When confronted with the 1985 State Department Report
indicating that "[t]otal deaths related to antiterrorist operations
of the security forces are estimated by human rights groups as
being in the thousands between 1980-1985," Castañeda took issue
with those numbers. We note that, to the extent the government
offered the report as evidence that thousands of people had been
killed due to abuses by the Peruvian military, Castañeda appears to
have been at least correct. In a portion of the report the
government failed to read at the hearing, the State Department
noted that, out of these thousands of total deaths, "[p]recise
information is lacking on the number of civilian victims and their
adverse credibility finding based solely on a person's "blinking"
during a portion of their testimony. Such ambiguous indicia are
simply too thin to support such a conclusion.
-29-
identities (terrorist or non-terrorist) as well as the identity of
their assailants (terrorists, security forces, or peasant self-
defense forces)." In other words, the "thousands" of deaths that
resulted from antiterrorist operations included deaths of
terrorists, as well as civilians killed by terrorists and other
peasant forces. Therefore, it is quite likely that there were not
thousands of deaths related to abuses by the Peruvian military, and
in that sense, Castañeda was correct.27
Having considered the entire record, we do not think that
substantial evidence supports the BIA's determination that
Castañeda was evasive on the issue of human rights abuses by the
military. He testified consistently throughout the hearings before
the Immigration Judge, and although he disagreed at times with the
government's assertions, this can hardly be considered evasive
testimony. We therefore find that the BIA's finding on this issue
is not supported by substantial evidence.
27
Further, the 1985 Report notes elsewhere that "[b]eginning in
1983, some members of the security forces responded to [the Shining
Path] with violence of their own, engaging in extrajudicial
killings, disappearances, torture, and arbitrary detentions. Most
of these violations occurred in 1983 and 1984 in the Ayacucho
Emergency Zone . . . . During 1985, reports of such abuses by
security forces dropped sharply . . . ." In 1983 and 1984,
Castañeda was serving in Tumbes, around 400 miles away from the
emergency zone. It is therefore likely that he heard only
occasional reports of abuses occurring in the emergency zone.
Further, as indicated by the State Department, by the time he was
transferred into the emergency zone in 1985, the number of abuses
decreased sharply. This further bol a. Whether sters his
testimony that he only rarely heard of abuses by the military.
-30-
The fifth reason for the BIA's adverse credibility
finding was that Castañeda allegedly was "not forthcoming about the
judgment entered against" Hurtado. This, again, is a
mischaracterization of Castañeda's testimony. There are several
aspects of Castañeda's testimony on the subject of Hurtado, and we
deal with each in turn.
a. Whether Hurtado was imprisoned
During cross-examination, the government's attorney asked
Castañeda what happened to Hurtado. Castañeda replied, "[a]fter
[Hurtado] admitted [to his involvement in the massacre] and the
court found him guilty, he was placed in a military prison." This
statement is borne out by the record; all of the documents indicate
that Hurtado was found guilty and placed in prison for a period of
time.
b. Hurtado's conviction
Later on in questioning, the following exchange occurred:
Q. Sir, my question is, what was [Hurtado]
found guilty of?
A. He was found guilty of participating in
the assassination of those village people.
Q. So he was convicted of murder?
A. Yes. That's what I know.
Q. Was he sentenced to prison?
A. Yes. He was recluded in a military
prison.
Q. Do you know what his sentence was?
-31-
A. I do not know the amount of years.
The latter part of Castañeda's answer is supported by the record,
as the 1999 State Department Report indicates that Hurtado was not
finally sentenced until 1993, two years after Castañeda left Perú.
It is perfectly plausible that Castañeda did not know the length of
Hurtado's sentence, since Hurtado had not been sentenced when
Castañeda and his family left Perú.
Regarding the first part of Castañeda's response, the
government later asked Castañeda if Hurtado was convicted only of
abuse of authority. Castañeda stated that "[c]learly, I don't
know. What I manifested what I know is that [t]he court found him
guilty of that murder and I'm not an expert on law, but maybe the
murder is instead of the disobedience, sorry, the abuse of
authority." On appeal, the government argues that Castañeda
testified inconsistently about what crimes Hurtado was convicted
of. This is incorrect, for two reasons. First, Castañeda
testified that Hurtado was convicted of killing the villagers. He
referred to the killings as "that murder" and an "assassination."
It is obvious that, in Castañeda's untrained legal mind, Hurtado
murdered civilians, and this is what he was convicted of. Second,
Hurtado was in fact charged with murder, and, at the time of
Castañeda's acquittal, the case against Hurtado was still
proceeding. The document confirming Castañeda's acquittal
specifically states that the case would continue against Hurtado
-32-
"for crimes against life, body, and health, first degree murder."
Hurtado, however, was not sentenced until 1993, and was sentenced
only for abuse of authority. This again occurred after Castañeda
had left Perú. We see no reason to find that Castañeda was not
credible as to his knowledge and participation in the Operation
simply because he thought Hurtado was convicted of murder and not
abuse of authority, when (1) Hurtado was originally charged with
murder, (2) still faced a murder charge at the time of Castañeda's
acquittal, and (3) was not sentenced until two years after
Castañeda had left the country.
c. Whether Hurtado was discharged or promoted
When asked if Hurtado was discharged from the army,
Castañeda testified that he thought so, since that was the usual
military practice for an officer in such a situation, but did not
know for sure. This apparently was not good enough for the
government attorney, who commented that Castañeda seemed to not
know many details about what happened to Hurtado given the
significance the court martial had on his life. Castañeda replied
You're right. That is a very important -- in
my life. What I know is that that officer
acted outside the rules that are breach of the
army. He was found guilty . . . . I did not
try to find out what privileges he might have
had and what had happened to his life.
In other words, Castañeda testified that he knew Hurtado went to
prison, thought he was discharged from the army, and did not try to
find out what happened to Hurtado afterwards. Instead, like many
-33-
people would, he tried to resume his normal life. We see nothing
to indicate that Castañeda was not forthcoming about Hurtado's
fate.28
During cross examination, the government also introduced
a 1995 State Department Report indicating that there were reports
that Hurtado had reappeared on active duty and been promoted to
captain. When asked about this, Castañeda testified "I did not
know that." When asked if it would surprise him to know that
Hurtado was promoted after his conviction and sentence, Castañeda
answered that it would. The record supports Castañeda's testimony.
First, the 1999 State Department Report indicates that "the
Military Code states that any conviction that entails a sentence of
2 or more years' imprisonment must result in the officer's
immediate discharge." Thus, Castañeda was correct in his testimony
that the usual practice was for an officer in Hurtado's situation
to be discharged. The 1999 Report also indicates that Hurtado was
not released from prison until 1995 under the general amnesty, four
years after Castañeda had left Perú. It therefore is entirely
consistent with Castañeda's testimony that he had no idea Hurtado
had not been discharged and had in fact been released from prison
28
We also note that Castañeda's knowledge, or lack thereof,
regarding Hurtado is a red herring. Castañeda was denied asylum
because of what he allegedly did, not because of what Hurtado did.
As we previously noted, Castañeda's case is based on his
disassociation from Hurtado's actions, actions over which Castañeda
had no control or knowledge.
-34-
and promoted, because when Castañeda left Perú, Hurtado's case was
still ongoing and he was in prison. Again, we find no basis for
the adverse credibility finding.
We also wish to emphasize several key pieces of evidence
that supported Castañeda's story. First, as we noted above, the
1999 State Department report indicates that Castañeda was acquitted
of any involvement in the massacre. Second, the report from the
Human Rights Commission specifically found that Castañeda's patrol
was "not involved in any confrontations with fugitive civilians."
This is an extremely important piece of evidence because it goes to
the heart of the issue: the extent of Castañeda's participation in
the massacre of the villagers. Further, while the Commission
report mentioned Castañeda's name twice, it did so only in
reference to the fact that he led one of the non-infringing
patrols. The report clearly holds Hurtado to blame for the
massacre. It mentions Hurtado's testimony in depth and also refers
to him as "the perpetrator" -- as opposed to "one of the
perpetrators" -- of the massacre. The 1995 and 1999 State
Department Reports single out Hurtado and his patrol as the ones
responsible for the massacre. For example, the 1999 State
Department Report states that "Hurtado commanded the army unit
responsible for the 1985 Accomarca massacre." Neither Castañeda
nor any of the other patrol leaders' names are ever mentioned. In
our view the record, when viewed as a whole, indicates that Hurtado
-35-
and his patrol were responsible for the massacre, and that
Castañeda's patrol, which was three to five miles distant, took no
part in it. After a trial by the military court, Hurtado -- the
man responsible -- was convicted29 and the charges against Castañeda
were dismissed. The fact that Hurtado was later released due to a
general declaration of amnesty by the President and Congress should
not affect the legitimacy of the original trial and conviction, and
it especially should not be held against Castañeda.
In sum, the evidence indicates that Castañeda credibly
testified that (1) he never had any contact with any villagers
during the Operation, (2) he was acquitted of any involvement in
the massacre by a duly constituted body of the Peruvian military,
which was given jurisdiction over his case by the Peruvian Supreme
Court, and (3) Hurtado, the leader of the Links 7 patrol, was the
one found responsible for the massacre by a military court. This
evidence, combined with the problems we have discussed related to
the reasons relied upon by the BIA in making its adverse
credibility finding, sound the death knell for that finding.
Substantial evidence does not support a finding that Castañeda was
not credible regarding his involvement in the massacre, and we
therefore reverse the BIA's credibility determination.
29
The fact that there was a conviction in the case should further
boost Castañeda's credibility.
-36-
2. The "Ordinary Remand Rule"
The dissent, invoking the "ordinary remand rule" argues
that we must remand the case to the BIA for further proceedings.
We reject the dissent's reasoning for several reasons which we
briefly explain.
In INS v. Ventura, 537 U.S. 12 (2002), a Supreme Court
case invoked by the dissent, the Court reversed a judgment of the
Ninth Circuit. The Ninth Circuit had reversed the BIA based on a
"changed circumstances" argument that the government had made to an
Immigration Judge, but which the BIA had never addressed. On
appeal, the Supreme Court stated that, under the ordinary remand
rule, "[a] court of appeals is not generally empowered to conduct
a de novo inquiry into the matter being reviewed and to reach its
own conclusions based on such an inquiry. Rather, the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation." Id. at 16 (internal
citations and quotation marks omitted). The Court then reversed,
stating that the Ninth Circuit had erred by deciding the "changed
circumstances" issue "without giving the BIA the opportunity to
address the matter in the first instance." Id. at 17.
The Supreme Court has also recently applied the ordinary
remand rule in Gonzáles v. Thomas, __ U.S. __, 126 S. Ct. 1613
(2006). In Thomas, the Immigration Judge denied a petitioner's
asylum claim without considering her alleged fear of persecution
-37-
based on membership in a particular social group. The BIA then
summarily affirmed. The Ninth Circuit reversed, finding that
Thomas was in fact persecuted as a member of a social group even
though the BIA had not yet addressed the issue. On appeal, the
Supreme Court reversed and remanded to the BIA for consideration of
the issue, stating that "[t]he agency has not yet considered
whether [petitioner's father-in-law's] family presents the kind of
kinship ties that constitute a particular social group." Id., 126
S. Ct. at 1615.
While we do not quarrel with the general legal
proposition regarding the ordinary remand rule advanced by the
dissent and found in Thomas and Ventura, we believe that the facts
of this case take it outside of the purview of that rule. In both
Thomas and Ventura, the court of appeals considered an issue that
the BIA never addressed in the first instance. Here, by contrast,
the Immigration Judge and BIA both thoroughly considered the
credibility issue based on a fully developed record. In reversing
the credibility determination, we are not conducting a de novo
review of the record, but rather are reviewing the reasons set
forth by the BIA in light of the record. Under the ordinary remand
rule, while we could remand the case for further factfinding, we
are not required to do so since the BIA has already thoroughly
-38-
"evaluat[ed] the evidence" and brought "its expertise to bear upon
the matter." Ventura, 537 U.S. at 16.30
We note that this approach is in accord with other
circuits that have interpreted Ventura and Thomas. For example,
the Seventh Circuit has stated that "we do not agree that Ventura
stands for the broad proposition that a court of appeals must
remand a case for additional investigation or explanation once an
error is identified." Ghebremedhin v. Ashcroft, 392 F.3d 241, 243
(7th Cir. 2004). Several other circuits have adopted a similar
line of reasoning. See, e.g., Almaghzar v. Gonzáles, 450 F.3d
415, 423 n.11 (9th Cir. 2006) ("Neither Ventura nor Thomas requires
us to remand an issue to the agency when the agency has already
considered the issue."); Zhao v. Gonzáles, 404 F.3d 295, 311 (5th
Cir. 2005) (stating that the court was not required to remand under
the ordinary remand rule because the BIA had already decided the
issue).
The dissent also argues that our decision to reverse
violates the law of our own circuit. However, the cases cited by
the dissent are clearly distinguishable. For example, the dissent
relies on Gailius v. INS, 147 F.3d 34 (1st Cir. 1998) and Cordero-
30
The dissent's analysis would require us to remand whenever we
found an error in the BIA's factual decisions, even if the BIA had
clearly decided the issue based on a fully developed record. This
would transform the "ordinary remand" rule into an "automatic
remand" rule, something we do not believe is required by either the
Supreme Court or our own precedents.
-39-
Trejo v. INS, 40 F.3d 482 (1st Cir. 1994). In Gailius, the
Immigration Judge did not address whether alleged threats had
occurred as the petitioner described because it found that a
reasonable person in the petitioner's situation would not fear
persecution on account of such threats. We disagreed with this
latter finding and stated that "[i]f the threats are real . . .
Gailius may well have had a well-founded fear." Gailius, 147 F.3d
at 44. We remanded so that the BIA -- which ignored the evidence
of the threats based on reasons not having to do with credibility
-- could explain why it found the threats not credible. One of our
main reasons for remand was that "the IJ did not make a
determination of the credibility and authenticity of Gailius'
evidence of threats." Id. at 47. We have a different case here,
because the IJ and BIA made specific credibility findings; those
findings simply are not supported by substantial evidence. In
Cordero-Trejo, the BIA first found the petitioner not credible,
then made an alternative holding that the petitioner was ineligible
for asylum based on three reasons. Cordero-Trejo, 40 F.3d at 485.
We found two of these reasons invalid under the INA, and the third
depended on the adverse credibility finding, which we found was not
supported by substantial evidence. Id. at 485, 488. We also found
that the BIA failed to consider certain general country condition
evidence offered by the petitioner. Id. at 485. In reversing the
adverse credibility finding, we noted that "it is difficult to
-40-
ascertain from what sort of evidence the IJ drew his credibility
conclusions." Id. at 491. Given this fact, along with the fact
that the Immigration Judge and BIA had failed to address any of the
petitioner's documentary evidence, we remanded. Castañeda's case
is obviously distinguishable because it is clear what evidence the
Immigration Judge and BIA relied on in drawing the adverse
credibility determination, and the BIA did not simply ignore all of
Castañeda's documentary evidence.31
C. Whether Castañeda Was a Persecutor
As we noted above, the Immigration Judge also found that,
even assuming Castañeda had testified credibly -- i.e., even
assuming that he and his patrol were several miles away from the
village during the Operation, did not encounter a single villager,
and did not know what was happening in the village or have any
control over what was taking place there -- he still "assisted or
otherwise participated" in the persecution of others.
Specifically, the Immigration Judge concluded that
31
The dissent also cites Seavy v. Barnhart, 276 F.3d 1 (1st Cir.
2001). However, that case actually supports our decision to
reverse. In Seavy, which involved an agency's denial of social
security benefits, we remanded to the agency for further
consideration. However, we noted that "if the evidence and law
compelled one conclusion or the other, then [we] could order an
award of benefits or affirm a denial of benefits." Id. at 11.
Here, under substantial evidence review, we may reverse the
decision of the BIA only if we are compelled by the evidence. In
deciding that the BIA's determination is not supported by
substantial evidence, we are in reality stating that the evidence
compels a contrary conclusion. Thus, under the language of Seavy,
we may simply reverse the agency's decision.
-41-
the objective effect of [Castañeda's]
participation in the Accomarca operation would
have been to aid even in some small measure in
the confinement of villagers to the combat
area and therefore aid even in some small
measure with the execution and murder and rape
of those unarmed men, women, and children.
The BIA, citing to the above portion of the Immigration Judge's
opinion as well as In re Rodríguez-Majano, 19 I. & N. Dec. 811 (BIA
1988), affirmed this finding, stating that
we find no error in the Immigration Judge's
conclusion that [Castañeda] failed to meet his
burden of proving that he did not assist or
otherwise participate in the persecution of
villagers in Accomarca based on their
political opinion; even if [Castañeda]
testified credibly that he did not harm or
execute anyone on August 8, 1985, there is
substantial evidence to support the
Immigration Judge's conclusion that
[Castañeda] did aid in the persecution of
others by helping to confine them, inasmuch as
his patrol was charged with blocking an
escape route for the villagers and people
located in the emergency zone.32
32
The dissent argues that this portion of the BIA's opinion was
not an alternate holding and that we should remand to the BIA so
that it can address in the first instance whether Castañeda's
actions amounted to assistance or participation in persecution. In
essence, the dissent believes that the BIA did not assume the
credibility of all of Castañeda's testimony and that the quoted
portion of the BIA's opinion does not adequately explain the BIA's
reasoning. It bases this argument in part on the BIA's statement
that "even if [Castañeda] testified credibly that he did not harm
or execute anyone on August 8, 1985," (emphasis supplied), he
assisted or otherwise participated in persecution.
We disagree with the dissent's characterization of the ruling
below. The context of the BIA's statement, especially its citation
to, and affirmation of, a portion of the Immigration Judge's
decision where the Immigration Judge explicitly makes an alternate
holding, as well as its citation to In re Rodríguez-Majano, one of
-42-
An alien is ineligible for asylum or withholding of
removal if he or she "ordered, incited, assisted, or otherwise
participated in the persecution of an individual because of the
individual's race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C. §§ 1158
(b)(2)(A)(i), 1231(b)(3)(B)(i). In the instant case, it is
undisputed that Castañeda did not order or incite the persecution
of anyone. It is also undisputed that the villagers massacred
during the Operation were killed because of their political
opinion, i.e., their support of or suspected involvement with the
Shining Path. Therefore, the only issue is whether Castañeda
"assisted or otherwise participated in" the persecution of the
villagers.
Castañeda's main argument is that he could not have
"assisted or otherwise participated in" persecution because the
the BIA's seminal opinions on the issue of whether an alien
assisted or participated in persecution, leaves us with no doubt
the BIA was making an alternate holding. This alternate holding
was that, even if Castañeda were credible, his actions constituted
assistance or participation in persecution. Further, although
brief, the BIA's reasoning is crystal clear: it believed that the
act of blocking a path during the Operation had the objective
effect of assisting in the massacre by helping to confine the
villagers. Given these considerations, we are convinced that this
alternate holding is ripe for review. See Xu v. Gonzáles, 424 F.3d
45, 49 (1st Cir. 2005) (noting that "[w]hen considering . . . the
clarity of an administrative decision . . ., we are not blind to
the context in which the decision is made or oblivious of the
record on which it is based"). The fact that the BIA has already
decided the issue also takes this case outside of the dissent's
arguments about the ordinary remand rule, which we have already
addressed above.
-43-
massacre took place without his control and awareness, and because
he had no connection to the massacre beyond being a member of the
military at the time it occurred.33 The government, following the
reasoning of the BIA, argues that Castañeda's actions in blocking
an escape path furthered the massacre and therefore demands a
finding that he assisted or otherwise participated in persecution.
After careful review of the record and various cases interpreting
the phrase "assisted or otherwise participated in" the persecution
of others, we are compelled to reverse the BIA's decision in this
respect.
We begin our discussion by looking to the Supreme Court's
decision in Fedorenko v. United States, 449 U.S. 490 (1981).34 In
Fedorenko, the Court interpreted a provision of the Displaced
33
Castañeda also briefly argues that his actions were directed
toward the defense of the government, and therefore any harm that
resulted from such behavior would not amount to persecution. See
In re Rodríguez-Majano, 19 I. & N. Dec. 811, 815 (BIA 1988)
(stating that "harm which may result incidentally from behavior
directed at . . . the defense of [a] government against an
opponent" does not amount to persecution.). However, the massacre
of the villagers during the Operation went well beyond that which
was incidental to the defense of the Peruvian government. See,
e.g., Miranda Alvarado v. Gonzáles, No. 03-70165, 2006 WL 1512077,
at *14 (9th Cir. June 2, 2006) (stating that "torturing individuals
selected for their affiliation with an opposition group is not
inherent in armed conflict, any more than is 'ethnic cleansing'").
Therefore, if Castañeda assisted or otherwise participated in the
massacre, he should be barred as a persecutor.
34
This is the course taken by most of the circuit courts that have
considered issues similar to the one before us today. See, e.g.,
Miranda Alvarado, 2006 WL 1512077, at *8-9; Xie v. INS, 434 F.3d
136, 140-42 (2d Cir. 2006); Hernández v. Reno, 258 F.3d 806, 812-13
(8th Cir. 2001).
-44-
Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 ("DPA"),
which excluded from the definition of "displaced persons"
individuals who had "assisted the enemy in persecution of
civil[ians]' or had 'voluntarily assisted the enemy forces . . . in
their operations . . ." Fedorenko, 449 U.S. at 495 (internal
quotation marks omitted) (alteration in original).
Fedorenko was admitted to the United States as a
displaced person following World War II after stating in his
application that he had been a farmer in Poland from 1937 until
March 1942, then had been deported to Germany and forced to work in
a factory until the end of the war. In reality, Fedorenko was a
Russian soldier who had been captured by the German army and forced
to serve as a guard at the Nazi concentration camp in Treblinka,
Poland, where several hundred thousand Jewish civilians were
murdered. When the falsehoods on his application were discovered,
the government filed an action to have Fedorenko's citizenship
revoked. At the resulting trial, Fedorenko admitted to his service
at Treblinka and admitted that he knew that thousands of Jewish
civilians were being murdered there, but claimed that his service
as a guard was involuntary and that he did not have any personal
involvement in the atrocities committed. Fedorenko also admitted
that he had "shot in the general direction of escaping inmates"
during a prison uprising, id. at 500, "that the Russian armed
guards significantly outnumbered the German soldiers at the camp,
-45-
that he was paid a stipend and received a good service stripe from
the Germans, and that he was allowed to leave the camp regularly
but never tried to escape." Id.
The Court found that Fedorenko had assisted in the
persecution of civilians. In doing so, the Court rejected
Fedorenko's argument that he did not assist in any persecution
because his actions were involuntary. It noted that the DPA
incorporated the definition of "displaced person" contained in the
Constitution of the International Refugee Organization of the
United Nations ("IRO Constitution"). Id. at 496 n.3. While
section 2(a) of the IRO Constitution provided that persons who
"assisted the enemy in persecuting civil populations" were excluded
from the definition of "displaced persons," section 2(b) of the IRO
Constitution excluded only those persons who "voluntarily assisted
the enemy forces . . . in their operations." Id. at 496 n.4. The
Court found that "[u]nder traditional principles of statutory
construction, the deliberate omission of the word 'voluntary' from
§ 2(a) compels the conclusion that the statute made all those who
assisted in the persecution of civilians ineligible for visas."
Id. at 512 (emphasis in original).
After rejecting Fedorenko's involuntariness defense, the
Court found that his actions constituted assistance in persecution.
In an oft-cited footnote, the Court described a continuum of
-46-
conduct along which an individual's actions should be considered in
determining whether he or she assisted in persecution:
Thus, an individual who did no more than cut
the hair of female inmates before they were
executed cannot be found to have assisted in
the persecution of civilians. On the other
hand, there can be no question that a guard
who was issued a uniform and armed with a
rifle and a pistol, who was paid a stipend and
was regularly allowed to leave the
concentration camp to visit a nearby village,
and who admitted to shooting at escaping
inmates on orders from the commandant of the
camp, fits within the statutory language about
persons who assisted in the persecution of
civilians. Other cases may present more
difficult line-drawing problems but we need
decide only this case.
Id. at 512 n.34.
In cases involving "more difficult line-drawing
problems," courts have relied on Fedorenko's "continuum of conduct"
footnote and BIA precedent to determine whether an alien "assisted
or otherwise participated in" persecution. Following Fedorenko,
the BIA has held that
The participation or assistance of an alien in
persecution need not be of his own volition to
bar him from relief. However, mere membership
in an organization, even one which engages in
persecution, is not sufficient to bar one from
relief, but only if one's action or inaction
furthers that persecution in some way. It is
the objective effect of an alien's actions
which is controlling.
Rodríguez-Majano, 19 I. & N. Dec. at 814-15; see also Miranda
Alvarado v. Gonzáles, No. 03-70165, 2006 WL 1512077, at *10 (9th
Cir. June 2, 2006); Higuit v. Gonzáles, 433 F.3d 417, 421 (4th Cir.
-47-
2006) (distinguishing between "'genuine assistance in persecution
and inconsequential association with persecutors'") (quoting Singh
v. Gonzáles, 417 F.3d 736, 739 (7th Cir. 2005)).
In determining the objective effects of an alien's
actions, a court must examine the totality of the alien's relevant
conduct. See Miranda Alvarado, 2006 WL 1512077, at *9; Xie v.
INS, 434 F.3d 136, 142-43 (2d Cir. 2006) (stating that the court
"focused on the nature of [the alien's] conduct as a whole"); In Re
A-H-, 23 I. & N. Dec. 774, 785 (A.G. 2005) (citing with approval
Hernández v. Reno, 258 F.3d 806, 814 (8th Cir. 2001) (stating that
"[t]he Board should have analyzed all the pertinent evidence
related to [the alien's] conduct")). Further, some degree of
individual culpability is necessary in order for an alien to be
held responsible for assisting or participating in persecution.
See Miranda Alvarado, 2006 WL 1512077, at *10 (stating that
"determining whether a petitioner 'assisted in persecution'
requires a particularized evaluation of both personal involvement
and purposeful assistance in order to ascertain culpability");
Higuit, 433 F.3d at 421 (finding that "there can be no dispute over
Higuit's personal culpability in this case"); Hernández, 258 F.3d
at 814 (stating that a court should "determine whether the
individual should be held personally culpable for his conduct").
Moreover, several courts have explicitly required that a
petitioner's actions have direct (as opposed to tangential)
-48-
consequences for the victims or further the persecution in some
material way. See Miranda Alvarado, 2006 WL 1512077, at *10
(asking whether the petitioner's actions furthered the persecution
or were tangential to it, and finding that petitioner was barred
because, without his actions, the events leading to the persecution
could not have proceeded); Xie, 434 F.3d at 143 (stating that the
court would find assistance in persecution when the alien's conduct
"was active and had direct consequences for the victims," but would
not find assistance in persecution where the alien's conduct was
tangential and passive). Some courts have also considered the
repetitive nature of the alien's actions. See, e.g., Miranda
Alvarado, 2006 WL 1512077, at *11; Singh, 417 F.3d at 740 (in
discounting petitioner's "protestations of case-specific ignorance"
of persecutory acts, noting "the repetition of [petitioner's]
conduct over an extended period").35
35
We note that the courts have been in less agreement regarding
the subjective aspects of an alien's actions. In Fedorenko, the
Supreme Court held that, in the context of the DPA, the
voluntariness of an alien's actions was irrelevant. 449 U.S. at
512-13. Some courts have taken Fedorenko's holding and applied it
to the INA. See Xie, 434 F.3d at 141-42 (stating that "we find it
unlikely that the phrase 'assisted in persecution' implicitly
includes a voluntariness requirement" in the INA but not the DPA
and noting that, in prior cases, the court had "deemed irrelevant
[the alien's] personal motivation or intent"); Singh, 417 F.3d at
740 (stating that an alien's personal motivation for his or her
actions is irrelevant); Bah v. Ashcroft, 341 F.3d 348, 351 (5th
Cir. 2003) (same); Rodríguez-Majano, 19 I. & N. Dec. at 815 ("It is
the objective effect of an alien's actions which is controlling.").
Other courts appear to be more willing to look into the alien's
intent. See Miranda Alvarado, 2006 WL 1512077, at *10 (stating
that a court should evaluate an alien's "purposeful assistance");
-49-
Turning now to Castañeda's particular case, we conclude
that substantial evidence does not support the BIA's determination
that he "assisted or otherwise participated in" persecution.
Taking Castañeda's testimony as true, we are presented with the
following set of facts: (1) the uncontradicted evidence is that the
purpose of the Operation was directed at the Shining Path
guerrillas in the village, not civilians;36 (2) Castañeda and his
men were hidden in the jungle three to five miles from the village
and about thirty meters from the path they were guarding; (3)
during the time they were there, they did not see or hear anyone,
nor did they fire any shots; (4) they never entered the village and
never directly or indirectly participated in the killings of the
villagers, which was carried out by a rogue patrol led by Hurtado
in a previously unplanned manner; (5) Castañeda and his men lacked
any control or authority over this rogue patrol; and (6) they did
not know what occurred in the village during the Operation.
Given these facts, and considering the totality of
relevant conduct, we are compelled to conclude that Castañeda did
Hernández, 258 F.3d at 814 (faulting the BIA for not considering
the alien's testimony that his actions were involuntary and
motivated by fear for his own life). We need not decide that issue
today because, even without considering the motivation or intent
behind Castañeda's actions, we do not think his actions had any
objective effect on the persecution of the villagers.
36
We again emphasize that there is no evidence in the record to
support the dissent's intimation, see footnote 3, to the effect
that the massacre was pre-planned or that Castañeda had prior
knowledge that it would take place.
-50-
not assist or otherwise participate in the persecution of the
villagers. First, Castañeda's personal involvement in the murder
of the villagers was non-existent. Compare Miranda Alvarado, 441
F.3d at 762 (noting that petitioner, who served as an interpreter
for the Peruvian army while officer tortured suspected Shining Path
member, was personally involved in the persecution because he was
present and active during the interrogation); Singh, 417 F.3d at
740 (finding that the petitioner had assisted or otherwise
participated in persecution where the petitioner "took innocent
Sikhs into custody . . . and transported them to the police
station, where he knew they would be subjected to unjustified
physical abuse[,]" and "participated in raids on the homes of
innocent Sikh families"). Second, Castañeda's conduct -- which
amounted to hiding in the jungle for several hours three to five
miles away from the scene of the massacre -- can hardly be
characterized as "active and ha[ving] direct consequences for the
victims" of the persecution, Xie, 434 F.3d at 143, especially since
no one ever came down the path Castañeda's patrol was watching.
Instead, Castañeda's actions are better characterized as irrelevant
"to the acts of oppression and passive in nature." Id. In a
similar vein, Castañeda's actions simply had no "objective effect"
on the persecution because Castañeda and his men never saw anyone
-51-
or fired any shots.37 In other words, the massacre of the villagers
during the Operation would have occurred regardless of whether
Castañeda ever reached his assigned position,38 and Castañeda did
nothing to facilitate the massacre in any way because his patrol
37
The dissent, citing Naujalis v. INS, 240 F.3d 642 (7th Cir.
2001), argues that our reading of the "objective effect" line of
cases is erroneous. We do not agree with the holding in Naujalis.
Furthermore, the Seventh Circuit's opinion in Singh v. Gonzáles,
417 F.3d 736, (7th Cir. 2005), has recently clarified the holding
in Naujalis. In Singh, the alien was a citizen of India who worked
for the police department in India's Pujab. The court noted that,
in the context of Nazi guards and the DPA (which is what Naujalis
involved), "membership in the ranks of Nazi guards is sufficient to
constitute assistance in prohibited persecution." Singh, 417 F.3d
at 739. It then went on to state that the DPA line of cases was
not fully compatible with the INA in general and Singh's case in
particular because "[u]nlike Nazi concentration camps, whose
complete existence was premised upon the persecution of innocent
civilians, local Punjabi police departments served traditional,
legitimate law enforcement purposes and did not exclusively engage
in the persecution of innocent [people]." Id. Therefore, the
court stated, in Singh's case "a distinction must be made between
genuine assistance in persecution and inconsequential association
with persecutors." Id. The court then went on to conduct an
analysis similar to the one we have conducted. Id. at 739-741.
In sum, the dissent's reliance on Naujalis is misplaced
because Naujalis involved a special rule applicable "exclusively
. . . to Nazis from the period of 1933 to 1945." Id. at 739. Had
Naujalis been the member of an organization which did not
exclusively engage in persecution -- as is the case with Castañeda
and his membership in the Peruvian army -- the Seventh Circuit's
analysis would have been entirely different. Given the Seventh
Circuit's explanation of Naujalis in Singh, along with the other
cases that have construed the relevant provisions of the INA, as
opposed to the DPA, we are convinced that our approach is the
correct one.
38
As evidenced by the facts that the massacre occurred even though
one of the blocking controls never reached its position and that no
persons came down the path Castañeda's men were watching.
-52-
never encountered anyone.39 Cf. Miranda Alvarado, 2006 WL 1512077,
at *10 (finding that, without the petitioner's actions, the
persecution would not have gone forward). Add to these facts
Castañeda's lack of awareness of what was happening in the village,
and we simply do not see how his actions rise to the level of
culpability necessary to find that he assisted or otherwise
participated in the persecution of the villagers. We therefore
find that substantial evidence does not support the BIA's
determination in this regard.
D. The Dissent
This court has never condoned, nor will it ever condone,
the massacre of innocent civilians by the military in the course of
its war-related activities. See United States v. Zajanckauskas,
441 F.3d 32 (1st Cir. 2006). However, we also cannot tolerate a
finding that amounts to a conclusion that someone is guilty of such
conduct by remote association. The findings of the Immigration
Judge and the BIA amount to just that: a conclusion of guilt by
remote association. These findings fly against the evidence that
is relevant to a determination of whether Castañeda was credible
39
We find that what might have occurred had a fleeing villager
come down the path to be absolutely irrelevant and speculative,
since Castañeda was there to intercept fleeing members of the
Shining Path, not civilians. If anything, the cases make clear
that we are to concern ourselves only with what a petitioner
actually did, not what he might have done. See, e.g., Rodríguez-
Majano, 19 I. & N. Dec. at 814-15. Castañeda credibly testified --
and this testimony is supported by the Human Rights Commission --
that no one came down the path.
-53-
and to whether he was in any way responsible for the atrocities
committed by a different Peruvian army unit, operating
independently of his command, several miles away from his location,
with nothing but mountains and jungle in between.
Because the findings below -- which we have already
addressed as unsupported or unsupportable -- are clothed in the
presumably impervious mantle of credibility findings, and
considering the assertions in the dissent that follows, it is
appropriate that we conclude by re-emphasizing certain uncontested
evidence which goes both to the issue of Castañeda's credibility
and to the question of his responsibility for the heinous acts
committed beyond his control or participation.
First, it is undisputed that the patrol which committed
the massacre of the villagers was several miles away and acted
independently from Castañeda, whose assigned duty was to watch a
trail to intercept Shining Path guerrillas, not civilians. The
dissent's phrasing of the facts, that "army units fired and threw
grenades into the houses and killed many women and children," and
that Castañeda "headed one of four army units involved in the
military operation during which this massacre occurred" is
unfortunate because it gives the impression that the military
operation was one that included, as a pre-planned goal, the
premeditated killing of civilians. In fact, there is absolutely no
evidence to this effect. This unwarranted implication in the
-54-
quoted portion of the dissent is re-enforced by the phrasing that
follows: "His patrol was assigned to and did block a possible
escape route from the village, but there is no evidence that he was
in the village during the massacre or that he personally killed
anyone." This quote omits the rather important fact that Castañeda
was several miles away from the village, that there is no evidence
that he ever entered the village before, during or after the
massacre, or that anyone, civilian or otherwise, ever went down the
trail he was guarding.
Second, as we just noted, it is undisputed that nothing
happened on Castañeda's watch. It is undisputed that no one came
down the trail -- no Shining Path guerrillas, no civilians, no one.
Thus, neither Castañeda nor anyone under his command engaged in any
action against innocent civilians.
Third, there is not a scintilla of evidence that
Castañeda was aware, either before or during the massacre, that
these acts would be committed or were being committed by others
over which he had no control and were in fact not his subordinates.
The issue regarding radio communication during the Operation is
simply another red herring, for several reasons. First, there is
no affirmative evidence of any communication between Castañeda and
the other patrols during the Operation. Second, radio silence
during operations is not an unheard of military tactic. In any
event, the only evidence is the assertion by the only person there,
-55-
Castañeda, that there was no communication between the patrols.
The conclusions to the contrary, used by the Immigration Judge and
the BIA as a basis for their credibility conclusions, are mere
speculation unsupported by evidence, especially given Castañeda's
prior testimony about communication up the chain of command.
Third, the issue regarding radio communication is an irrelevant
distraction from the main issue: Castañeda's culpability for the
actions of Hurtado's rogue patrol, over which it is undisputed that
Castañeda lacked control or command.
Finally, Castañeda was acquitted by a Peruvian military
court for his involvement in the Operation. This is the same
military court that found the captain in charge of the rogue
patrol, Hurtado, guilty of perpetrating the massacre against the
civilians. Notwithstanding these undisputed facts, and that such
tribunals are the ones that normally deal with crimes allegedly
committed by the military in the course of military operations, the
Immigration Judge and the BIA latched on to irrelevant issues to
detract from the most central, irrefutable fact: that the only
adjudicative body to pass upon this unfortunate incident placed the
blame for these actions on someone other than Castañeda.40
40
Other non-adjudicative bodies, such as the Human Rights
Commission, also placed the blame elsewhere.
-56-
III.
Because we find that substantial evidence does not
support the BIA's determinations that Castañeda was not credible
and assisted or otherwise participated in persecution, we grant the
petition for review, reverse the decision of the BIA, and remand
the case so that an Immigration Judge may consider the merits of
Castañeda's asylum and withholding of removal applications.
Castañeda's asylum request merits serious, unbiased
consideration. As we pointed out earlier in this opinion, the
Shining Path have been catalogued by our government as a ruthless
terrorist organization. Castañeda's unchallenged testimony is that
Shining Path members threatened him on numerous occasions and
attempted to murder him in 1986. Furthermore, and in keeping with
its record of indiscriminate violence, see, e.g., Philip Bennett,
Pol Pot in Perú, New Republic, January 28, 1985, at 16, Shining
Path members tried to kidnap Castañeda's daughter in 1989. The
group also murdered Castañeda's neighbor and military colleague in
front of the man's family in 1990. Thereafter, Castañeda sought
refuge for himself and his family from these terrorist thugs by
leaving his native country.
The BIA's decision cannot be sustained on appeal.
Reversed and remanded for actions consistent with this
opinion.
"Dissenting opinion follows"
-57-
LYNCH, Circuit Judge, dissenting. I respectfully dissent
and do so with regret. But the majority opinion is contrary to
decisions of the Supreme Court and this court, and the errors are
of exceptional importance and potentially of national significance.
Cf. Fed. R. App. P. 35.
I.
I summarize my view of the case and the reasons I am
compelled to dissent before going on to a fuller explanation.
According to an investigation by a Commission of the
Senate of Perú, in August 1985, some sixty-nine innocent villagers
in Llocllapampa, Perú were massacred by units of the Peruvian army
in its war with Shining Path guerrillas. The village's civilian
inhabitants were herded into two homes; the army units fired and
threw grenades into the houses and killed many women and children
in the slaughter. The investigation concluded the operation
amounted to genocide.
Lieutenant Castañeda, petitioner here, headed one of four
army units involved in the military operation during which this
massacre occurred. It is disputed whether he knew about the
massacre before or while it took place. His patrol was assigned to
and did block a possible escape route from the village, but there
is no evidence that he was in the village during the massacre or
that he personally killed anyone. He acknowledged that he was
briefed on the operation beforehand and that all units during the
-58-
operation had radios capable of radio contact, but he claimed that
he had no radio contact with the units in the village that day and
did not find out about the massacre until weeks later.
Finding himself a potential target in the wake of his
role in the operation, Castañeda came with his family to the United
States on tourist visas in 1991, overstayed, and in 1993 applied
for asylum and withholding of removal. By statute, an alien is not
eligible for asylum and withholding of removal if the Attorney
General determines that "the alien ordered, incited, assisted, or
otherwise participated in the persecution of any person on account
of race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1158(b)(2)(A)(i)
(emphasis added); see also id. § 1231(b)(3)(B)(i).
It is undisputed that the government met its burden of
making a prima facie case that Castañeda had "assisted or otherwise
participated in the persecution" and that the burden of showing he
had not done so has shifted to Castañeda. 8 C.F.R. §§ 1208.13
(c)(2)(ii), 1208.16(d)(2). It is also undisputed that the
persecution was on account of one of the enumerated grounds in the
statute.
The Board of Immigration Appeals ("BIA"), the Immigration
Judge ("IJ"), and the initial asylum interviewing officer each
found Castañeda had not met his burden because he was not credible.
He was found not credible based both on observations of his
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demeanor and on the content of his testimony. The law requires
courts to give great deference to those lack of credibility
determinations, especially those based on direct observations of
the alien's demeanor. The majority fails to accord the appropriate
deference to the BIA and, rather than determining whether the
record could reasonably be read to support the BIA, determines
whether the record could reasonably be read to support Castañeda.41
This is the wrong perspective, and having taken the wrong
perspective, the majority reaches the wrong conclusion in holding
that substantial evidence does not support the BIA's finding that
Castañeda was not credible.
Having incorrectly applied the standard of review, the
majority further errs in refusing to remand to the BIA to
reconsider its determinations in light of the supposed failures in
its reasoning and errs in concluding for itself that Castañeda was
credible. Supreme Court precedent and the precedent of this
circuit require that the agency be given an opportunity to
41
Thus, for example, even if it might be true that translation
difficulties could explain some of the problems with Castañeda's
testimony -- a point not raised by Castañeda himself -- the issues
raised by the BIA and the IJ are such that it was entirely
reasonable to conclude otherwise. Moreover, those who actually
heard Castañeda's testimony are in a much better position than this
court to weigh the effects of any translation difficulties.
Similarly, the majority's assertions that Castañeda misunderstood
some questions or was interrupted by the judge might be possible
readings of the record, but the record certainly does not compel
such conclusions, and we are in a poor position to judge such
matters from the transcript alone.
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reconsider, particularly when the BIA did not find it necessary to
comment on all of the evidence relied upon by the IJ. The majority
errs in holding as a matter of law that Castañeda was credible and
that he had no knowledge of the massacre. The record does not
compel either conclusion.
This sequence of errors has led the majority into yet a
further error, one of great significance and going well beyond the
particulars of this case. The majority takes a one-line statement
by the BIA -- that Castañeda still had not met his burden even
assuming he was credible that he personally had not killed or
harmed anyone -- and draws two mistaken conclusions. First, it
turns this into a statement that the BIA made a holding assuming
Castañeda was credible in all of his testimony, including that he
had no knowledge of the massacre. The BIA did not say this, and if
there is any ambiguity, the case should be remanded for the BIA to
clarify. Second, the majority sees in the BIA's statement a ruling
of law on the relevance of Castañeda's knowledge about the massacre
to the statutory exclusion for those who assist or otherwise
participate in persecution. The BIA's statement means no such
thing. The issue of the legal significance of Castañeda's
knowledge was not raised or argued before the agency in the removal
proceedings, but was rather raised sua sponte by this court, which
asked for and received post-argument briefing on the issue.
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Despite the position of the Attorney General that this
issue of statutory interpretation is not before this court, was not
raised or exhausted before the agency, and is committed in the
first instance to the BIA, the majority nonetheless addresses the
issue itself, contrary to both the exhaustion and Chevron
doctrines. The majority's conclusion as a matter of law that
Castañeda has met his burden of proving he was not a persecutor
depends on the majority's implicitly deciding that knowledge is a
requirement under the statute (contrary to the position stated by
the Attorney General in his brief) and then on the majority's
applying this newly formulated legal rule to its version of the
facts of this case. The majority refuses to permit the agency to
examine on remand the questions both of statutory interpretation
and then of application of the legal standard to the facts. The
majority concludes that Castañeda has established that he did not
assist or otherwise participate in the persecution and remands to
the agency to consider only the question of whether he should be
granted asylum.
The majority is wrong on all of these points and has
overstepped the limited role assigned to the courts in reviewing
decisions of the BIA in immigration cases. The proper outcome of
this case is a simple affirmance of the BIA's decision on the
grounds that the decision is based on substantial evidence that
Castañeda has not met his burden and the record does not compel any
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other finding. There is no need to reach the other issues the
majority reaches. More than that, courts are forbidden from
denying the BIA the opportunity to interpret what the statute
means. Accordingly, I dissent. I also attach to this dissent the
decision of the BIA in this case, so it may be read directly.
II.
A. Standard of Review
We are required to give deferential review to the BIA's
findings. "[A] decision that an alien is not eligible for
admission to the United States is conclusive unless manifestly
contrary to law." 8 U.S.C. § 1252(b)(4)(C). As to the BIA's
subsidiary factual findings, including credibility determinations,
we apply the highly deferential substantial evidence standard.
Dhima v. Gonzáles, 416 F.3d 92, 95 (1st Cir. 2005). Under this
standard, "[t]he [BIA's] determination must stand 'unless any
reasonable adjudicator would be compelled to conclude to the
contrary,'" id. (quoting 8 U.S.C. § 1252(b)(4)(B)), meaning we can
overrule the BIA's findings only if the evidence "points unerringly
in the opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64
(1st Cir. 2004).
"We review the BIA's legal conclusions de novo, with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles." Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998); see
-63-
also Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005) (citing,
inter alia, Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-43 (1984)).
B. Facts of Record
As I believe the majority's discussion is materially
incomplete, I independently recount the facts as contained in the
administrative record.42 See 8 U.S.C. § 1252(b)(4)(A).
Castañeda joined the Peruvian military in 1978. In 1983,
he graduated from a military academy and was commissioned as a
lieutenant. In January 1985, Lieutenant Castañeda was transferred
to anti-terrorist Battalion 34, stationed in Ayacucho, a province
within the "emergency zone" and the historic birthplace of the
Shining Path. This battalion, composed of five companies spread
throughout the region, engaged in field operations. Castañeda was
first assigned to be head of a twenty-man patrol in Sacchaeamba,
which had two patrols.
After three months, Castañeda transferred to another
base, in Vilcashuan, again as head of one of two patrols.
42
The majority objects to my account of the facts as unduly
recounting "the actions of persons for whom Castañeda was not
responsible and who were without his command or authority." I am
merely recounting, however, the persecution that Castañeda is
supposed to have assisted or participated in. The evidence of such
persecution was properly before the IJ and BIA. The majority also
appears to complain that the extent of the persecution is
irrelevant and should be ignored. There is no rule that the BIA
cannot weigh the extent of persecution. Again, that is a decision
for the BIA.
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Castañeda was one of only a few officers at this base; besides
himself, there was a captain and a base head. Castañeda was
stationed there in August of 1985.
In August 1985, Castañeda was involved in a military
operation, the details of which are at the center of this case.
The operation involved four patrols. Two of the patrols, led by
Sub-Lieutenant Telmo Hurtado and Lieutenant Riveri Rondón, were to
enter the village of Llocllapampa, in the Accomarca region, to
search for Shining Path members. Two other patrols, including
Castañeda's, were assigned to block escape routes from the village.
The two main patrols entered the village and massacred as
many as sixty-nine civilians. The massacre was reported by the
media, and a formal investigation followed. A Peruvian Senate
Human Rights Commission found that Hurtado's patrol had herded the
village inhabitants into two houses, open fired on them, lobbed
grenades inside, and set fire to the houses. The Commission
concluded that the operation amounted to genocide and found that
"[j]udging by the age of the people and the way they responded[,]
it was clear that the people attacked and killed were defenseless."
The Commission noted that Castañeda's patrol was "not
involved in any confrontations with fugitive civilians." But it
also found that the massacre could not simply be attributed to a
single out-of-control officer; instead it wrote that Hurtado "is
only a piece of a larger picture and it is necessary to study
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whether he acted on virtue of expressed verbal orders."43 The
Commission left it to the Peruvian court system "to determine
. . . the people responsible . . . and apply punishments as
dictated by the law."
The massacre was documented in the U.S. State
Department's 1985 Country Report on Human Rights Practices in Perú.
The report stated that "an Army sub-lieutenant and three other
officers were responsible for the Accomarca massacre of some 25 to
69 peasants." Castañeda admitted during testimony before the IJ
that he was one of the officers referred to in the report. The
report also said the men involved had been charged in the military
and civilian court systems in Perú.
The Peruvian Supreme Court decided the military courts,
rather than the civilian courts, had jurisdiction, and Castañeda,
along with Hurtado and others, was charged in a military court
martial in 1986. Castañeda was charged with homicide and abuse of
authority.44 Castañeda appeared in a military court on at least
four occasions, represented by a civilian lawyer, and produced
documents in his defense. He also testified in his own defense,
43
The majority notes that any such orders must have come from
those with a higher rank than Hurtado, rather than from Castañeda.
The point, however, is that the BIA could consider that if Hurtado
was acting on orders, rather than in the heat of the moment, it is
much more likely that Castañeda would have known about the massacre
before it happened.
44
It is unclear whether he also was charged with first degree
murder.
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answering questions from a judge and prosecutor. Castañeda was
apparently acquitted of all charges at the court martial. He
returned to duty thereafter and was eventually promoted to captain
in 1991.
Castañeda's application for asylum and other relief was
based on his assertion that after the massacre, he was persecuted
by the Shining Path.45 Castañeda decided to leave Perú. He
obtained tourist visas for himself and his family, resigned from
the military, and came to the United States in 1991.
In January 1993, he and his family applied for asylum and
withholding of removal. The claims for relief were initially
denied by an agency hearing officer, who found, in a May 19, 1999
report explaining the denial, that Castañeda was ineligible for
asylum because his testimony was "only partially credible." The
report stated that Castañeda's testimony about his duties as a
military officer was "vague and evasive," and that Castañeda's
testimony regarding military practices was "inconsistent with
country condition information." Castañeda had "denied awareness of
any harm that occurred to captives," testified that suspected
terrorists were turned over to a military intelligence unit, and
"testified not to have any knowledge of any harm that may have
45
The IJ and BIA never reached the issue of whether Castañeda
could meet the standards for asylum or withholding of removal. See
8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A). Because the BIA did not
reach the issue, I do not address it either.
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occurred to such persons." The report found it unlikely that a
Peruvian military officer of Castañeda's era would have had "such
limited knowledge of the treatment of suspected terrorist[s]."
Castañeda's case was subsequently referred to an IJ for
adjudication. The hearing officer's report was in the record
before the IJ and BIA.
III.
The hearings before the IJ focused on whether Castañeda
was ineligible for asylum and withholding of removal because he
"ordered, incited, assisted, or otherwise participated in the
persecution" of others on account of "race, religion, nationality,
membership in a particular social group, or political opinion."
8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).
Under the applicable regulations, if evidence is produced
"indicat[ing]" that an alien engaged in such behavior, the alien
must prove by a preponderance of the evidence that he or she did
not do so. 8 C.F.R. §§ 1208.13(c)(2)(ii), 1208.16(d)(2). The IJ
found, and Castañeda does not dispute, that the government produced
evidence indicating that Castañeda "assisted, or otherwise
participated" in the Accomarca massacre. It is, as a result,
undisputed that the burden lay with Castañeda to show that he did
not do so.
-68-
A. Hearing Before the IJ
Castañeda put on two types of evidence during an extended
hearing before the IJ: his testimony about the events in question
and a document purporting to be a judgment from a military tribunal
acquitting him of certain charges.
Castañeda testified extensively about his military
experiences both before and during August 1985. He testified that
at both bases at which he was stationed in 1985, he headed one of
two patrols. While one patrol was out on operations, the other
stayed to protect the base. Castañeda indicated that his patrol
went out on both combat and reconnaissance missions. The commander
of the battalion was the person who determined the instructions the
patrols were given.
Sometimes the patrols were coordinated; sometimes they
were independent. Castañeda testified that when the patrols were
independent, the commander still let each patrol know where the
others were. It was, he said, "very important to coordinate the
movement." Castañeda said his patrol would "keep contact with the
base by radio," and at least sometimes would make direct radio
contact with other patrols in the area.
Castañeda testified that in August 1985, after several
weeks of reconnaissance patrolling, he was ordered to go on a
combat patrol in mobilized, coordinated activity with three other
patrols. His order came from the base captain, following orders of
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the division command. Castañeda indicated that he was briefed in
advance on the missions of the other three patrols involved in the
operation. He was informed that there were forty to sixty Shining
Path terrorists at a training center in the village. His patrol
was ordered to deploy itself to a place where it could block the
path providing an escape route from the village. His deployment
position was, according to Castañeda, located three to five miles
from the village. A second patrol was supposed to block the other
exit to the village, but it never arrived at its position. The two
remaining patrols were the active patrols whose mission was to go
into the village.
Castañeda's patrol had twenty men, a radio, and a rocket
launcher. He said it took approximately six hours to reach the
deployment position. Once there, he testified, he and his troops
hid themselves along the sides of the path. When he was in
position, he radioed that fact back to the head of the base. He
said he would have been in charge of deciding whether to open fire
if anyone came along.
Castañeda testified that he knew there would be an attack
on the village, but was not told when the two lead patrols were
ready to attack or when the attack began. He says he was told, via
radio contact from the base, only when the attack was over. During
the operation, he testified, no one came down the path and his
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patrol fired no shots. Other evidence in the record suggests the
attack went on for two to three hours.
Castañeda denied hearing any radio communications from
the attacking patrols during the mission. At first, when asked if
he had been "informed what frequencies the two attacking patrols
would be using," he replied, "That's correct."46 Shortly
thereafter, however, he said he did not have the frequencies of the
other patrols because he had not been given them. When asked
whether the two attacking patrols had his patrol's radio frequency
so that they could notify him of any escaping guerrillas, he said
they did not. He maintained that each patrol could contact the
base by radio, and the two attacking patrols could communicate with
each other, but the attacking patrols, by contrast, could not
communicate with the patrols blocking the escape routes. Castañeda
was asked to reconcile this testimony about the lack of radio
contact among all the patrols, particularly in a mission where
multiple patrols were trying to coordinate an attack, with his
earlier testimony that communication among patrols could be
important. He responded that the attack had been centrally planned
46
The majority claims that the remainder of Castañeda's response
makes "clear that Castañeda misunderstood the question." This is
far from clear. An equally plausible interpretation of the
language quoted by the majority is that Castañeda testified that
while he had the frequencies, he did not need to use them. Between
two reasonable interpretations, we must defer to the one adopted by
the IJ and BIA.
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that way and that he was simply ordered to exercise his independent
judgment in controlling exit points.
After the attack ended, Castañeda was ordered back to
base by his base commander. He acknowledged that there was a
debriefing. He testified that he did not find out about the
massacre until weeks later, when he heard a report on civilian
radio. He said he later found out that Hurtado had admitted to
executing civilians.
As to the subsequent court martial, Castañeda stated that
he was acquitted of all charges, and produced a document
purportedly showing that the Supreme Council of Military Justice
had affirmed the dismissal of the charges against him. The
document, dated April 4, 1989, stated in relevant part that
Castañeda was charged with homicide and abuse of authority and that
the charges were dismissed. It gave no reason for the dismissal.
Castañeda submitted no other documentation relating to
the court martial. He did not introduce into his immigration
proceedings a transcript of the military court proceedings or the
documents he had used in his defense. He also offered no evidence
as to what the elements of the charged crimes were, and therefore
did little to prove the significance of the purported acquittal in
determining whether he assisted or otherwise participated in
persecution. However, the U.S. State Department's 1999 Country
Report on Human Rights Practices for Perú does corroborate
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Castañeda's ultimate acquittal, stating that "all the other
defendants" besides Hurtado were "acquitted."
B. The IJ's Decision
The IJ heard testimony from Castañeda in four separate
sessions over the course of more than a month.47 On October 4,
2004, the IJ concluded that Castañeda was ineligible for asylum and
withholding of removal because he had not proven that he did not
"assist[] or otherwise participate[]" in politically motivated
killings. 8 U.S.C. § 1158(b)(2)(A)(i); id. § 1231(b)(3)(B)(i).
The IJ had three grounds for this conclusion. First, he rejected
Castañeda's argument that the one-page Peruvian document dismissing
the charges against him was sufficient to carry his burden.
Second, he held that Castañeda was not credible and had not carried
his burden for that reason. Third, the IJ held that even setting
aside his credibility determination, Castañeda's "motivation and
intent [were] irrelevant," given that the "objective effect of
[his] participation in the Accomarca operation would have been to
. . . aid even in some small measure with the execution and murder
and rape of those unarmed men, women, and children."
The IJ offered numerous grounds for the finding that
Castañeda's testimony was not credible. First, the IJ wrote that
47
Castañeda also testified several times in 2001 and 2002 before
another IJ. After the case was reassigned, the second IJ agreed to
re-hear Castañeda's testimony at the request of Castañeda's
counsel.
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he had "carefully observed [Castañeda's] demeanor . . . and found
him to be vague, evasive, and non-responsive during questioning by
the Government prosecutor relating to his participation in the
massacre at Accomarca and more importantly whether he was aware of
that massacre." The IJ also found that Castañeda was evasive and
non-responsive when asked why he did not have documentation from
his court martial. The IJ further found that Castañeda's testimony
that he did not have the radio frequencies for the other patrols
the day of the massacre was "wholly incredible," in part because he
had earlier testified that radio contact among patrols could be
important and in part because his demeanor indicated a lack of
veracity. As to this demeanor finding, the IJ wrote that he
"observed [Castañeda's] demeanor during this part of his testimony
and found him to be extremely incredible. . . . [Castañeda was]
blinking his eyes in an unusually rapid rate as compared with the
rest of his testimony." The IJ also found incredible Castañeda's
testimony that he did not find out about the massacre until weeks
later, and then only from the media, especially considering his
rank and his presence at briefings and debriefings. Finally, the
IJ found incredible both Castañeda's testimony about his awareness
of human rights violations in the emergency zone and his testimony
about his knowledge of Hurtado's fate.
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C. The BIA Decision
On appeal to the BIA, Castañeda first argued that the IJ
should have deferred to the Peruvian tribunal's dismissal of the
charges against him; he argued that the IJ's finding -- that
Castañeda failed to prove he had not assisted in persecution -- was
"in direct contravention" of the military court's judgment.
The BIA responded on several levels. First, it held that
the IJ was correct about potential flaws in Castañeda's documentary
evidence: there was some doubt about whether the acquittal document
was properly authenticated, and further, other documents suggested
that the military tribunal may have been a mechanism "to grant
impunity to the alleged persecutors."
Second, the BIA held as a matter of law that dismissal of
the charges in the military tribunal did not establish that
Castañeda was not a persecutor. The government had argued that
"fail[ure] to meet the burden of proof in a criminal forum never
. . . proves that the defendant was factually innocent
[and] . . . [t]he legal presumption of innocence at a criminal
proceeding cannot be substituted for independent facts which could
have established [Castañeda's] burden of proof." Moreover, the
government had noted that "[t]here are many possible scenarios at
a criminal trial that could conclude the proceedings in an
acquittal without a determination of innocence." Agreeing with
these arguments, the BIA concluded that Castañeda's "evidence of
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his dismissal is not necessarily the legal equivalent of a criminal
finding that he was innocent." It was Castañeda's burden to prove
he did not assist or otherwise participate in the massacre; the
military court document, which did not specify the reason for
dismissal of the charges or offer any details on the charges
themselves, did not establish that he had not assisted or otherwise
participated.
In concluding that Castañeda had failed to meet his
burden of proof, the BIA held that "even if the respondent
testified credibly that he did not harm or execute anyone on
August 8, 1985, there is substantial evidence to support the
Immigration Judge's conclusion that the respondent did aid in the
persecution of others by helping to confine them, inasmuch as his
patrol was charged with blocking an escape route for the villagers
. . . ."
The BIA also affirmed on the separate basis that the IJ
had not clearly erred in finding Castañeda less than credible. The
BIA specifically referenced the IJ's finding that Castañeda's
demeanor during a line of significant questioning indicated a lack
of veracity, and affirmed the finding that Castañeda was "evasive"
regarding his court martial. It also said that Castañeda's
argument on appeal that he did not have access to a transcript or
other documents from the court martial "does not seem plausible,"
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and that Castañeda did not "provide any explanation for not
providing [such documents]."
The BIA also affirmed the IJ's conclusion that crucial
portions of Castañeda's testimony were inconsistent and incredible
and reached the same conclusion on its own review. The BIA found
that the IJ had not erred in doubting the veracity of Castañeda's
testimony that he had not been in radio contact with the other
patrols the day of the killings (and thus had not been aware of the
unfolding massacre), particularly because Castañeda's own testimony
established that patrols sometimes made contact and that "radio
contact was important for purposes of coordination as well as
efficiency and protection of the patrols." Further, the BIA
affirmed the IJ's findings that Castañeda was not forthcoming about
the extent of human rights violations by the Peruvian military and
about the fate of Hurtado, the patrol commander charged with
primary responsibility for the massacre. It concluded: "In light
of obvious media attention and international documentation of the
massacre, as well as [Castañeda's] military position and subsequent
accusations about his role, it was reasonable to expect him to
provide answers regarding what occurred in Perú on and after
August 8, particularly since he failed to provide adequate
documentary evidence of his innocence."
-77-
IV.
A. The Adverse Credibility Determination
Substantial evidence supports the BIA's adverse
credibility determination, which in itself is sufficient to support
the BIA's conclusion that Castañeda did not meet his burden. The
IJ and BIA based their findings on Castañeda's demeanor and
evasiveness and on the tendency for his testimony to be
contradictory and non-responsive. The majority errs in dismissing
this evidence and imposing its own view of the record.
In order to carry his burden, "an alien must support his
claim . . . through credible testimony." Nikijuluw v. Gonzáles,
427 F.3d 115, 121 (1st Cir. 2005). "The testimony of the
applicant, if credible, may be sufficient to sustain the burden of
proof without corroboration." 8 C.F.R. § 1208.13(a) (emphasis
added). However,
[t]his does not mean that a reviewing court
must take every applicant's uncontradicted
testimony at face value, for testimony
sometimes is internally inconsistent or belied
by the prevailing circumstances. Furthermore,
a witness's demeanor is often a critical
factor in determining his veracity. And when
a hearing officer who saw and heard a witness
makes an adverse credibility determination and
supports it with specific findings, an
appellate court ordinarily should accord it
significant respect.
Aguilar-Solís v. INS, 168 F.3d 565, 570-71 (1st Cir. 1999)
(internal citation omitted). In other words, the strong deference
we owe to BIA findings of fact under the substantial evidence
-78-
standard applies even more so to adverse credibility determinations
based on witness demeanor. See Rodríguez Del Carmen v. Gonzáles,
441 F.3d 41, 43 (1st Cir. 2006) ("Matters of witness credibility
and demeanor are peculiarly for the factfinder," and credibility
determinations supported with specific findings are treated "'with
great respect.'" (quoting Laurent, 359 F.3d at 64)).
Here, the IJ said he had "carefully observed
[Castañeda's] demeanor" and had concluded that Castañeda was not
telling the truth about his role in the massacre. More
specifically, the IJ had observed Castañeda's demeanor during his
testimony about radio contact and found him "extremely incredible."
The IJ also found that Castañeda was "extremely vague,
evasive, and non-responsive" when cross-examined by the government
attorney about the massacre and the events following and about his
lack of documentary evidence of the court martial. The BIA found
no error in any of these findings, and its decision was reasonable,
as the following examples show.
During Castañeda's testimony, he appeared to contradict
himself, and failed to give direct answers, in response to a series
of questions about whether he had had the other patrols' radio
frequencies on the day of the massacre. Castañeda initially
indicated that he had had such frequencies, and then stated that he
had not. At some point, the IJ stepped in to get a straight answer
from an evasive witness:
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IJ: Sir, it still hasn't been answered though.
Could you contact the other two patrols by
radio, yes or no?
C: No. I did not on my radio.
IJ: That's not what I asked. Could you
contact them by radio, yes or no?
C: No. I could not.
Later in the cross-examination, Castañeda was asked what
had happened in the village the day of the massacre, and he
replied: "One of the patrols . . . committed excesses." He then
claimed that he did not know until his appearance before the IJ how
many villagers had been killed, and that such information was never
discussed during his court martial. Information about the number
of deaths, however, appears to have been widely circulated
following the massacre, and such information was discussed in the
report of the Peruvian Human Rights Commission, which led to the
court martial.48
Still later, Castañeda was confronted with a 1985 State
Department report stating that "an army sub-lieutenant and three
other officers" were responsible for the massacre. The government
48
The majority reads Castañeda's testimony here to have been that
he did not know the exact number because "the exact number could
not be determined." As the majority notes, however, this remains
true "[t]o this day," and hence such a reading is not consistent
with Castañeda's assertion that he did not learn the exact number
until the day of his hearing before the IJ. In any event,
regardless of whether the majority's reading is a plausible one, it
is equally plausible, and reasonable on the part of the IJ and BIA,
to read Castañeda's testimony as unduly attempting to minimize his
knowledge of the massacre.
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attorney asked him whether the report was "talking about you."
Again, the witness was evasive:
C: They are talking about the patrol head of
that commission.
IJ: Sir, are they talking about you, yes or
no?
C: Yes. They are talking about me.
There is also substantial record support for the finding
that Castañeda was evasive about his knowledge about Hurtado.49 In
response to repeated questions, Castañeda denied having any
positive knowledge about whether Hurtado had been discharged from
the military. Yet when confronted with a human rights report from
the U.S. State Department, he admitted to "find[ing] out through
public media when [he] was here in the United States" that Hurtado
had been promoted to captain.
These examples suffice to demonstrate a substantial basis
in the record for the conclusion that Castañeda was evasive and
non-responsive, and for the BIA's refusal to believe his story.
Castañeda and the majority take issue with several of the
subsidiary bases for the BIA's and IJ's adverse credibility
determinations. Castañeda argues, for instance, that the BIA
49
The majority's claim -- that the issue of Castañeda's knowledge
about Hurtado is a "red herring" -- is puzzling. As the majority
itself notes, "Castañeda's case is based on his disassociation from
Hurtado's actions." The BIA and IJ were entirely justified in
presuming that evasiveness as to Castañeda's later knowledge about
Hurtado's fate indicated a lack of credibility regarding his
earlier knowledge about Hurtado's actions.
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erroneously disbelieved his testimony about lack of radio contact
with other patrols, and that it erroneously found him evasive
regarding the extent of human rights violations committed by the
Peruvian military. The majority agrees and adopts similar
criticisms of the BIA.
As to the radio issue, the BIA found unlikely Castañeda's
testimony that on the day of the massacre, not only did he not have
radio contact with the other patrols, but he did not even know the
frequency they were using. The BIA relied in part on Castañeda's
earlier testimony that he sometimes had had direct radio contact
with other patrols; the BIA said this testimony was "inconsistent"
with Castañeda's assertions about the day of the massacre. In a
sense, it was not "inconsistent" for Castañeda to deny radio
contact on the day of the massacre, since, as the majority notes,
he had said that he only sometimes had radio contact with other
patrols. But this criticism misses the BIA's point that this
operation was a coordinated combat mission, out of the ordinary,
and it was much more likely in such a circumstance that the two
attacking patrols would have at least had the capability to contact
Castañeda's patrol by radio, both to provide Castañeda with
information on escaping guerrillas and to call in the assistance of
Castañeda's patrol if needed. If radio contact among patrols was
at least sometimes used, this would have seemed the time to make
contact possible.
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As to the issue of human rights violations, Castañeda
did, after some questioning, admit that he was aware of
extrajudicial killings by the Peruvian army, and that members of
the armed forces had been responsible for disappearances, torture,
and arbitrary detentions. But one could view the record as showing
evasiveness. The BIA could reasonably have considered that
Castañeda's new-found relative candor as to human rights abuses
contrasted sharply with Castañeda's initial asylum interview, when
he was asked the same question and found both not candid and not
credible. The BIA could have considered that Castañeda might have
wanted to downplay the significance of his knowledge of a pattern
of human rights abuses by the Peruvian military before the events
in question.
The BIA's additional bases for its adverse credibility
determination are also substantially supported. The BIA agreed
with the IJ that Castañeda's failure to provide more documentary
evidence from his court martial reflected negatively on his
credibility because such evidence should have been available to
him. See Estrada-Henao v. Gonzáles, 453 F.3d 38, 40 (1st Cir.
2006) (holding that lack of documentation is "not automatically
fatal" but that "where documentation would naturally be expected,
its lack can count against the applicant"). Castañeda was asked
during proceedings before the IJ whether there was any written
accounting of the facts that would support his account of the day
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of the massacre. He said he had submitted documents to the court
martial, but did not have them for the immigration proceeding.
Given the formal nature of the court martial and the fact that
Castañeda was able to procure the dismissal-of-charges document and
other documents from Perú, the BIA's conclusion that Castañeda's
credibility was weakened by his failure to produce additional
documentation is supported.
The BIA also upheld the IJ's conclusion that given
Castañeda's position as head of one patrol in the joint operation,
his "entire testimony regarding how he found out about [the
massacre] only from the media is wholly incredible." The IJ
reasonably concluded that it was unlikely that information that two
patrols had just killed over five dozen men, women, and children
would not find its way to the third patrol that participated in the
same operation, and particularly to the head of that patrol. The
practice of debriefings only made it even more likely that
Castañeda would have learned about the atrocities engaged in by the
other patrols before the media did.50
In short, the BIA's adverse credibility determination
survives substantial evidence review, and that requires affirmance.
The majority sees in the record insufficient evidence of
Castañeda's participation in the massacre, finding the evidence of
50
Of course, such information need not have been "openly
discuss[ed]" in order to have been shared.
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evasiveness and inconsistencies to be too ambiguous. The majority
forgets, however, that the burden was on Castañeda to prove he had
not assisted or otherwise participated, and that therefore the
question is not whether there was sufficient evidence that he
participated, but whether there was sufficient evidence that he did
not. Since there is substantial evidence to support the BIA's
finding that Castañeda's credibility was questionable, and since
Castañeda relied almost exclusively on his testimony for evidence,
the BIA's decision must be affirmed.
B. Significance of the Peruvian Court's Dismissal of Charges
Castañeda and the majority fault the BIA for failing to
accord the proper weight to the Peruvian court's dismissal of the
court martial charges against Castañeda. They are mistaken,
however, in arguing that the dismissal is itself sufficient to
carry his burden of proof, and indeed, the BIA was not mistaken in
according the bare dismissal very little weight.
Castañeda's main argument is that the BIA erred in
concluding that the Peruvian court martial was a whitewash and in
"disregard[ing]" that court's dismissal of the charges against him.
The BIA did not disregard the Peruvian judgment; it merely
evaluated that evidence and found it not to be particularly helpful
for Castañeda. The BIA also did not rest its conclusion as to the
dismissal's limited significance on a finding that the court
martial was a fraud. The BIA did say that the IJ had so concluded,
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and noted that "there [was] evidence" to support the conclusion.51
The BIA then gave two other reasons. First, there was no evidence
as to the grounds on which charges were dismissed, and a dismissal
of criminal charges may not be the result of an acquittal on the
merits. Second, dismissal of criminal charges on any grounds --
even acquittal on the merits -- is not the same as a finding of
innocence on those particular charges. Given the divergent burdens
of proof, the mere fact that a defendant has not been proven guilty
beyond a reasonable doubt does not mean he is more likely innocent
than not.
The BIA's reasoning is entirely sound. Furthermore,
Castañeda was charged in the court martial with homicide and abuse
of authority. The elements of those crimes are not the same as the
standards under immigration law to find an alien statutorily
ineligible for asylum. A finding that an alien was acquitted on
homicide and abuse-of-authority charges does not establish that he
did not assist or otherwise participate in persecution. The BIA
51
For example, Lieutenant Hurtado, who led one of the combat
patrols into the village, was acquitted of first-degree murder
charges and convicted only of abuse of authority. Even if the BIA
had rested its conclusion on the ground that the Peruvian
proceeding was a fraud, we would owe deference under Chevron to
such a conclusion about the significance of a foreign tribunal's
proceedings. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999) (applying Chevron deference and noting that "judicial
deference to the Executive Branch is especially appropriate in the
immigration context where officials 'exercise especially sensitive
political functions that implicate questions of foreign
relations.'" (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))).
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was justified in affording only limited significance to the
dismissal of charges against Castañeda.52
The majority improperly faults the BIA for the
"unreasonable" requirement of "an actual finding of 'innocent.'"
But this is not what the BIA required. The BIA required Castañeda
to provide a different showing -- that he did not assist or
otherwise participate in the persecution. This requirement is not
only reasonable; it is mandated. See 8 C.F.R. §§ 1208.13(c)
(2)(ii), 1208.16(d)(2).
C. The Majority's Failure to Remand
Even if the majority were correct in finding fault with
the BIA's credibility decision, the majority commits serious error
in (a) not remanding to the BIA for further consideration, (b)
determining itself that Castañeda is credible, and (c) finding that
his credible testimony means that, as a matter of law, he has met
his burden and the BIA may no longer consider the question of
whether Castañeda assisted or otherwise participated in
persecution. In addition, and for other reasons, the issue of
statutory interpretation implicit in the majority's holding should
also have been remanded, as discussed later.
52
Castañeda also argues that the BIA erred when it deemed him a
persecutor because his "behavior was directed toward the defense of
the government, and harm which results from such behavior does not
rise to the level of persecution." As the majority correctly
notes, this argument fails.
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When a reviewing court finds flaws in the reasoning of
the BIA as to the evidence of record, it is ordinarily required to
remand to the agency for further investigation or explanation. The
"ordinary" rule is that if a federal court reviewing an agency
action finds that
the record before the agency does not support
the agency action, or . . . [that] the agency
has not considered all relevant factors, or
. . . the reviewing court simply cannot
evaluate the challenged agency action on the
basis of the record before it, the proper
course, except in rare circumstances, is to
remand to the agency for additional
investigation or explanation.
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).
A court of appeals reviewing an agency decision "'is not
generally empowered to conduct a de novo inquiry into the matter
being reviewed and to reach its own conclusions based on such an
inquiry.'" INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam)
(quoting Lorion, 470 U.S. at 744); see also R.I. Higher Educ.
Assistance Auth. v. Secretary, U.S. Dept. of Educ., 929 F.2d 844,
857 (1st Cir. 1991) ("[A] reviewing court, having determined that
an administrative agency did not consider all the relevant factors,
should ordinarily remand the matter to the agency rather than
compensating for the agency's oversight by launching a
free-wheeling judicial inquiry into the merits."). "When an agency
. . . has provided insufficient explanation for its action, the
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reviewing court ordinarily should remand the case to the agency."
Seavey v. Barnhart, 276 F.3d 1, 12 (1st Cir. 2001).
We have particularly applied this rule in immigration
cases. In Cordero-Trejo v. INS, 40 F.3d 482 (1st Cir. 1994), we
held, as does the majority here, that the IJ's adverse credibility
determination was not supported by substantial evidence, because
the claimed inconsistencies were not supported by the record. Id.
at 491. We then followed the "usual practice and rule" of
"remand[ing] for further consideration by the Board," even where
"the IJ's conclusions are not drawn from any perspectives offered
by the unique vantage point of the factfinder, such as witness
demeanor, conflicting or confused testimony, etc., from which
credibility is typically assessed." Id. at 491-92. The majority
violates circuit law in failing to remand here.
Similarly, in Gailius v. INS, 147 F.3d 34 (1st Cir.
1998), this court found that the BIA's conclusion was not supported
by substantial evidence, in that the BIA had failed to address
portions of the petitioner's evidence that would corroborate his
testimony. Id. at 46-47. The majority here points, for example,
to "a portion of the [State Department] report the government
failed to read at the hearing." We held in Gailius that remand was
the appropriate remedy and that in general, remand is appropriate
"when a reviewing court cannot sustain the agency's decision
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because it has failed to offer legally sufficient reasons for its
decision." Id. at 47.
The Supreme Court has stated that the "ordinary remand
requirement" has "obvious importance in the immigration context."
Ventura, 537 U.S. at 16-17; see also Gonzáles v. Thomas, 126 S. Ct.
1613, 1615 (2006) (per curiam). This is because immigration
decisions often involve matters on which the BIA can bring its
particular expertise to bear. See Ventura, 537 U.S. at 17 (finding
that agency expertise on country conditions supported remand as a
remedy). Indeed, this court has held that the more an issue
relates to matters within an administrative agency's particular
expertise, the less willing a court should be to decide an issue
itself. See R.I. Higher Educ. Assistance Auth., 929 F.2d at 857
("[T]he more imbricated a matter, the more cautious a reviewing
court should be about attempting to resolve the issue itself,
rather than remanding to the agency.").
The ordinary rule applies with full force here, and even
if in rare circumstances a reviewing court could eschew remand,
this is not such a case. Even if the BIA's reasoning as to the
finding that Castañeda lacked credibility were flawed, the majority
is not correct in finding that the evidence compels exactly the
opposite conclusion: that Castañeda is credible. That is
especially so because Castañeda bears the burden to show his
credibility. The BIA did not find it necessary to comment on all
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of the reasons the IJ gave for finding Castañeda not credible --
for example, on the point that Castañeda was vague and evasive
concerning how he learned about the massacre. The BIA must be
given the opportunity to reconsider such evidence. An appellate
court should not, as the majority does, make a credibility finding,
especially in a case such as this one involving "witness demeanor"
and "conflicting or confused testimony." Cf. Cordero-Trejo, 40
F.3d at 491. The majority cites no case in which an appellate
court made its own credibility finding.
Moreover, there are other reasons to remand. Although
the majority faults the BIA for allegedly failing to accord
appropriate deference to the judgment of the Peruvian military
court, the majority apparently does not assert that this judgment
alone satisfies Castañeda's burden. The BIA must be allowed to
reconsider its decision in light of the majority's ruling on the
appropriate view of the foreign judgment.
V.
The majority further errs in holding that Castañeda met
his burden to show that he did not assist or otherwise participate
in persecution. The majority improperly reads into the BIA's
decision a holding it did not make, then improperly decides a novel
issue of statutory interpretation, and finally improperly applies
its newly formulated rule to the facts of this case.
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The majority reads the BIA's opinion to have stated a
holding assuming that Castañeda did not know about the massacre.
No such holding can be found. The BIA's opinion addressed the
dismissal of the court martial charges against Castañeda and the
correctness of the credibility determination made by the IJ. The
only sentence discussing an alternate holding states that in the
BIA's opinion,
even if the respondent testified credibly that
he did not harm or execute anyone on August 8,
1985, there is substantial evidence to support
the Immigration Judge's conclusion that the
respondent did aid in the persecution of
others by helping to confine them, inasmuch as
his patrol was charged with blocking an escape
route for the villagers and people located in
the emergency zone.
(emphasis added). The majority finds that this lone sentence,
together with its citation to a page in the IJ's opinion and to In
re Rodríguez-Majano, 19 I. & N. Dec. 811 (BIA 1988), suffices to
open the door to the majority's conclusions: (a) that as a matter
of law, a person without prior or contemporaneous knowledge of the
persecution cannot have assisted or otherwise participated in the
persecution within the meaning of the statutes at issue here by
blocking an escape route for those persecuted, and (b) that because
the record purportedly compels the conclusion that Castañeda had no
such knowledge in this case, Castañeda has met his burden to show
that he did not assist or otherwise participate in persecution.
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The majority is simply wrong in all of this. First, the
majority is wrong to find in the BIA's opinion any holding that
takes into account the state of Castañeda's knowledge. The BIA did
not say that it was assuming all of Castañeda's testimony was
credible, only that even if Castañeda had not harmed or killed
anyone on the day of the massacre, this did not establish that he
did not assist or otherwise participate in the massacre. The cited
portion of the IJ's opinion merely supports this proposition by
finding Castañeda's "motivation and intent" largely irrelevant: the
majority agrees that this is the established rule. Rodríguez-
Majano also supports this proposition by incidentally mentioning
that one can participate in persecution without directly harming
anyone by having an "objective effect." Id. at 815. Neither the
IJ nor Rodríguez-Majano considered whether knowledge has any
bearing on a finding that an alien assisted or otherwise
participated in persecution. The BIA did not consider this point
either.
If there is any ambiguity as to what the BIA held, or
questions about the basis for the BIA's holding, the majority is
required to remand to the BIA for further explanation. See Halo v.
Gonzáles, 419 F.3d 15, 16 (1st Cir. 2005) ("The BIA offered no
further explanation for its conclusions. Lacking such explanation,
and given that the final agency decision does not rest on a
lack-of-credibility determination, we are left with significant
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questions about the justifications for the denial. We therefore
vacate the BIA's order and remand."). The majority is not free to
decide the case on grounds not addressed by the BIA. See Gailius,
147 F.3d at 44 ("'[A] reviewing court . . . must judge the
propriety of [administrative] action solely by the grounds invoked
by the agency.'" (alteration in original) (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947))).
The majority attempts to obscure the fact that it is
deciding the issue, unaddressed by the BIA, of whether knowledge of
a massacre can be a requirement to a finding that an alien assisted
or otherwise participated in that massacre. The majority does so
by repeatedly asserting its prior improper conclusion that
Castañeda did not know about the massacre, and then assuming this
lack of knowledge as a background fact in its analysis of the
"objective effect" of Castañeda's actions.
It may be that the majority is saying that even if
Castañeda knew full well that the villagers would be massacred, he
still would not have assisted or otherwise participated in the
massacre. If that is what the majority means, its holding is both
irrational and flatly contrary to the "objective effect" line of
cases that the majority cites.53 The majority cites no case holding
53
The case most on point is Naujalis v. INS, 240 F.3d 642, 647
(7th Cir. 2001), in which the Seventh Circuit found that a soldier
who guarded a railway station had assisted in the persecution
engaged in by his battalion. The majority objects that Naujalis is
a case about Nazi guards and that Peruvian military guards, unlike
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that those with lesser tasks -- such as blocking escape routes --
should not be barred as persecutors.54 To be clear, the calculus
might be different if Castañeda did not know about the atrocities,
but that issue is one for the BIA to address in the first instance.
The logic of the majority's opinion thus depends upon its
reaching and resolving an issue of statutory interpretation, namely
whether knowledge is a factor that must be considered in
determining whether an alien "assisted or otherwise participated
in" persecution within the meaning of 8 U.S.C. § 1158(b)(2)(A)(i)
and 8 U.S.C. § 1231(b)(3)(B)(i). The majority errs in deciding
this issue without a ruling on it by the BIA.
The principles in this case are clear. "We review de
novo an agency's construction of a statute that it administers,
although subject to established principles of deference."
Griffiths v. INS, 243 F.3d 45, 49 (1st Cir. 2001). "Under those
principles of deference, if the intent of Congress is clear, it
must govern, but where the statute is silent or ambiguous on an
Nazi guards, can serve legitimate purposes. The statute makes no
such distinction, and in any event, such a distinction has no
bearing on the culpability of one who participates in an operation
involving persecution.
54
In only one of the many "objective effect" cases cited by the
majority did the court reverse a finding that the alien was a
persecutor. That case is Hernández v. Reno, 258 F.3d 806 (8th Cir.
2001), a case involving a man forcibly recruited to join a
guerrilla movement and turning on whether the man's actions were
sufficiently coerced. None of the "objective effect" cases cited
by the majority involved aliens who might not have acted knowingly.
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issue, the question for the court is whether the agency's
interpretation is based on a permissible construction of the
statute." Id. (citing, inter alia, Chevron, 467 U.S. at 842-43).
"Since agency officials acting in the immigration context 'exercise
especially sensitive political functions that implicate questions
of foreign relations,' deference to administrative expertise is
particularly appropriate." Id. (internal quotations omitted)
(quoting Abudu, 485 U.S. at 110).
The BIA must be given the first opportunity to rule on
questions of statutory interpretation. It is only through such a
ruling that the BIA can fulfill its role in "'the formulation of
policy and the making of rules to fill any gap left, implicitly or
explicitly, by Congress.'" Elien v. Ashcroft, 364 F.3d 392, 396
(1st Cir. 2004) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).
Such a ruling is also necessary for the BIA to bring to bear its
specialized "expertise in matters of foreign policy." Id.
The BIA has not had this opportunity here. The record
shows that this knowingness issue of statutory interpretation was
not raised or argued before it, and was only the subject of
supplemental briefing in this court, after this court sua sponte
raised the issue at oral argument. As a result, because Castañeda
did not clearly present this issue to the BIA, we in fact lack the
authority to even consider it. See Olujoke v. Gonzáles, 411 F.3d
16, 23 (1st Cir. 2005). Further, even if Castañeda had exhausted
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his administrative remedies, he would have waived the argument by
failing to make it in his initial brief to this court. See Cipes
v. Mikasa, Inc., 439 F.3d 52, 55 (1st Cir. 2006).
The majority cannot defend its decision to interpret the
statute itself as encompassing a knowledge requirement on the
ground that the role it assigns knowledge is required by the plain
meaning of the statute. That argument is foreclosed by Fedorenko
v. United States, 449 U.S. 490 (1981). Fedorenko involved a
similar provision, which precluded admission to the United States
under the Displaced Persons Act of aliens "who had assisted the
enemy in persecuting" civilians. Id. at 495. Fedorenko, who said
he was a prisoner of war who had been forced to serve as a guard in
a Nazi concentration camp, argued the exclusion did not apply to
him because his service had been involuntary. The Supreme Court
held that the statute did not include the term "voluntary" and the
Court was "not at liberty to imply a condition" into the statute.
Id. at 513. The Court commented that the administrative
interpretation of the exclusion was that it applied whether or not
the assistance was voluntary and whether or not the alien had
participated in the persecution himself. Id. at 499. The Court
also noted the need for strict compliance with all statutory
preconditions to naturalization given that "Congress alone has
. . . constitutional authority" in this area. Id. at 506.
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Finally, the Court held that the federal courts lacked equitable
power to vary the terms of the statute. Id. at 516-18.
The plain text of the statutes at issue here contains no
"knowledge" qualifier to a finding that an alien "assisted or
otherwise participated" in persecution. Indeed, the majority does
not claim that the statute unambiguously contains a knowledge
qualifier. Rather, the majority effectively holds that knowledge
is a factor which the BIA must consider. Not only is such a factor
nowhere to be found in the statutory text, but determining which
factors to consider in applying a statute is even more clearly the
province of the BIA. See Aguirre-Aguirre, 526 U.S. at 424
(faulting the Ninth Circuit for "fail[ing] to accord the required
level of deference" to the BIA by requiring that it "examin[e]
additional factors"). Such factors are to be developed by the BIA
"'through a process of case-by-case adjudication'", id. at 425
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987)), and
cannot be found in the statutory text.
Finally, the majority errs in making its own findings of
fact and then in determining that these facts dictate a holding
that Castañeda did not assist or otherwise participate in
persecution. It is the BIA's role to "determin[e] the facts and
decid[e] whether the facts as found fall within a statutory term."
Thomas, 126 S. Ct. at 1615. The majority claims that
we are presented with the following set of
facts: (1) the uncontradicted evidence is that
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the purpose of the Operation was directed at
the Shining Path guerillas in the village, not
civilians; (2) Castañeda and his men were
hidden in the jungle three to five miles from
the village and about thirty meters from the
path they were guarding; (3) during the time
they were there, they did not see or hear
anyone, nor did they fire any shots; (4) they
never entered the village and never directly
or indirectly participated in the killings of
the villagers, which was carried out by a
rogue patrol led by Hurtado in a previously
unplanned manner; (5) Castañeda and his men
lacked any control or authority over this
rogue patrol; and (6) they did not know what
occurred in the village during the Operation.
This is not true. Neither the IJ nor the BIA found or assumed that
Castañeda had established that there was no order allowing the
patrols to harm civilians who were known to have harbored the
Shining Path, that Hurtado's patrol was a rogue patrol acting
entirely on its own, or that Castañeda had no knowledge of the
massacre before or as it was happening. The record does not compel
any of these conclusions. Even if the record compelled these
conclusions, the BIA must be given the opportunity to apply the
majority's newly formulated rule to the facts.
VI.
For the reasons stated above, the majority opinion has
not only erred, but it is at odds with the statutory mandate, the
decisions of the Supreme Court, and our own prior case law. Asylum
is not a right; it is a privilege. See Fedorenko, 449 U.S. at 518
("'An alien who seeks political rights as a member of this Nation
can rightfully obtain them only upon the terms and conditions
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specified by Congress.'" (quoting United States v. Ginsberg, 243
U.S. 472, 474-75 (1917))). Congress has decided that privilege
does not extend to those who assist or otherwise participate in
persecution within the meaning of the statute, as reasonably
interpreted by the BIA. I respectfully dissent.
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ADDENDUM
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Castaneda Castillo v. Gonzales
Court: Court of Appeals for the First Circuit
Date filed: 2006-09-29
Citations: 488 F.3d 17
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