Castaneda Castillo v. Gonzales

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. GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
_____________________

Before
Boudin, Chief Judge,
Torruella, Selya, Lynch, Lipez, and Howard,
Circuit Judges.
____________________

William P. Joyce with whom Joyce & Associates, P.C. was on
brief for petitioners.
Beth Werlin, The American Immigration Law Foundation, on
supplemental brief for The American Immigration Law Foundation,
Greater Boston Legal Services, and Harvard Immigration and Refugee
Clinic, Amici Curiae.
Jeanette Kain, Harvey Kaplan, Maureen O'Sullivan, Jeremiah
Friedman and Ilana Greenstein on brief for National Immigration
Project, Amicus Curiae.
Blair T. O'Connor, Senior Litigation Counsel, Department of
Justice, Civil Division, Office of Immigration Litigation, with
whom Peter D. Keisler, Assistant Attorney General, Civil Division,
and Donald E. Keener, Deputy Director, Department of Justice, Civil
Division, Office of Immigration Litigation, were on supplemental
brief for respondent.
 Robbin K. Blaya, Department of Justice, Civil Division, Office
of Immigration Litigation, Peter Keisler, Assistant Attorney
General, Civil Division, and Greg D. Mack, Senior Litigation
Counsel, on brief for respondent.

OPINION EN BANC
May 23, 2007
 BOUDIN, Chief Judge. David Eduardo Castañeda-Castillo

("Castañeda") entered the United States together with his family in

August 1991 on a tourist visa, overstayed and in January 1993

applied for asylum. In July 1999, the responsible agency--then the

Immigration and Naturalization Service ("INS")--began a removal

proceeding, 8 U.S.C. § 1227(a)(1)(B) (2000). Thereafter, Castañeda

testified at successive hearings seeking to establish his need for

asylum and to refute a claim that he was barred from asylum by

reason of having assisted or otherwise participated in persecution.

Id. § 1158.

Castañeda, the only witness at the hearings, testified in

substance that he had been commissioned as a lieutenant in the

Peruvian military in 1983. In January 1985 he was transferred to

an antiterrorist unit in an area designated an emergency zone in

which the Shining Path was active. The Shining Path is a

revolutionary Marxist organization, well known for its energy and

brutality, that has been at war with the Peruvian government for

many years.

In August 1985, the military conducted an operation to

search for Shining Path members in the village of Llocllapampa in

the Accomarca region. Two patrols, one of them headed by

Sublieutenant Telmo Hurtado and the other by Lieutenant Riveri

Rondon, were to enter the village and conduct the search. Two

other patrols, one of which was led by Castañeda, were assigned to

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block escape routes from the village. Castañeda's patrol located

itself about three to five miles from the village on either side of

a path.

The first two patrols entered the village and there

followed a brutal massacre of dozens of innocent villagers,

including many women and children. Castañeda said that he was in

radio contact with his base commander but not with the patrols

entering the town, and that he did not know when the attack had

occurred or that it had turned into a massacre of civilians.

According to Castañeda, he did not learn of the massacre until

about three weeks after the operation when he heard that Hurtado

had confessed to executing civilians.

The Peruvian Senate Human Rights Commission conducted an

investigation and concluded that Hurtado's patrol had been

primarily responsible for the massacre. However, the report stated

that Hurtado was "only a piece of a large picture and it is

necessary to study whether he acted on virtue of expressed verbal

orders or if he acted as such because that is how he has formed."

As to Castañeda, the report concluded that his squad "was not

involved in any confrontations with fugitive civilians."

Castañeda was charged before a military tribunal with

homicide and abuse of authority, but the charges were dismissed.

Hurtado, Riveri Rondon, and other officers were also charged, and

Hurtado was convicted of abuse of authority, given a sentence which

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was later commuted in a general amnesty, and eventually restored to

duty and promoted to captain.

After the court martial, Castañeda returned to duty and

was promoted. However, he had been publicly associated with the

massacre and (he testified) began to receive death threats from the

Shining Path. According to Castañeda, the Shining Path had

attempted to murder him on two occasions and to kidnap one of his

daughters, and a neighbor and military colleague who had received

similar threats was murdered by the Shining Path. These events,

Castañeda said, prompted him to flee to the United States with his

family.

Under the Immigration and Naturalization Act, an alien is

not eligible for asylum or 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); see

also id. § 1231(b)(3)(B)(i). In October 2004, following the series

of hearings, the immigration judge ("IJ") found that this bar

applied to Castañeda.

After a discussion of Castañeda's testimony, the IJ

concluded that Castañeda was not credible; the IJ also said that

even if Castañeda's testimony were believed, Castañeda had

nevertheless assisted in persecution because the "objective effect"

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of his participation in the operation as a blocking force was to

confine the villagers and thus aid in their massacre. In September

2005, the Board of Immigration Appeals ("BIA" or "Board") affirmed

the IJ's ruling in a brief decision, agreeing that Castañeda had

not been a credible witness and seemingly endorsing the "objective

effect" ground as well.

Castañeda petitioned to this court for judicial review.

A divided panel reversed the BIA and determined that the BIA's

adverse credibility determination was not supported by substantial

evidence, Castañeda-Castillo v. Gonzales, 464 F.3d 112 (1st Cir.

2006), and that the persecutor bar did not apply to Castañeda. It

remanded solely for a determination as to the merits of his asylum

and withholding of removal application--a separate and sequential

issue that is not before us. On petition by the government, this

court agreed to rehear the case en banc, vacating the panel

decision.

The Legal Issue. The statute that bars persecutors has

a smooth surface beneath which lie a series of rocks. Among the

problems are the nature of the acts and motivations that comprise

persecution, the role of scienter, whether and when inaction may

suffice, and the kind of connection with persecution by others that

constitutes "assistance." The more one ponders the variety of

possible situations, the less confident one becomes of a useful,

all-embracing answer.

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 Yet the inquiry in this case can be narrowed. The

government asserts and Castañeda does not deny that the deliberate

massacre of civilians because of their perceived connection with or

support for the Shining Path amounted to persecution. Nor does

Castañeda dispute that, if he had been aware in advance of a plan

to murder civilians, his role in leading a patrol to block escape

routes could be treated as culpable assistance. We think that the

same could be true if he learned of a massacre in progress and

continued to assist by blocking escape routes.

What remains in dispute is the legal question whether the

persecutor bar would apply to Castañeda if he had no prior or

contemporaneous knowledge of the murder of civilians. Castañeda,

saying that he lacked such knowledge, argues that the answer is no.

By contrast, the government has taken the position, most fully

elaborated in a letter from government counsel sent in response to

a query from the panel, that such culpable knowledge is not

required by the statute.

For this view the government offers several arguments.

One--the lack of an explicit scienter requirement in the statute--

is not persuasive: the term "persecution" strongly implies both

scienter and illicit motivation. Dictionary definitions, as well

as the Board's own precedent, bear this out.1 So does common

1
The dictionary defines "persecute" as "to pursue with
harassing or oppressive treatment, esp. because of religion, race,
or beliefs; harass persistently." Random House Dictionary of the

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sense: the bus driver who unwittingly ferries a killer to the site

of a massacre can hardly be labeled a "persecutor," even if the

objective effect of his actions was to aid the killer's secret

plan.

The government cites Fedorenko v. United States, 449 U.S.

490 (1981), Xie v. INS, 434 F.3d 136, 142-43 (2d Cir. 2006), and In

re Rodriguez-Majano, 19 I. & N. Dec. 811, 814-15 (BIA 1988), for

the view that scienter is not required and that the "objective

effect" of an alien's actions is all that matters. But these

decisions merely say that one can "assist" in persecution even if

his assistance is involuntary; the involuntariness claims seem to

have fallen somewhere between a showing of true duress and an

"obeying orders" defense. Cf. Hernandez v. Reno, 258 F.3d 806,

814-15 (8th Cir. 2001).

The government also cites various court and BIA

precedents that suggest that the "totality of the relevant conduct"

may be taken into account in determining whether one has assisted

in the persecution of others. But these cases tend to reaffirm the

need for some degree of moral culpability; and again, most focus on

English Language (2d ed. unabr. 1987). The Board defines
persecution as "harm or suffering" inflicted "to overcome a
characteristic of the victim." In re Kasinga, 21 I. & N. Dec. 357,
365 (BIA 1996).

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the question whether certain conduct constitutes "assistance," not

on the issue of scienter.2

Two circuit cases might be read to depreciate the need

for scienter, see United States v. Schmidt, 923 F.2d 1253, 1258 &

n.8 (7th Cir.), cert. denied, 502 U.S. 921 (1991) (involving an SS

officer who guarded a concentration camp and escorted inmates to

and from forced labor sites); Kulle v. INS, 825 F.2d 1188, 1193

(7th Cir. 1987), cert. denied, 484 U.S. 1042 (1988) (same). But in

both, knowledge of persecution was not in doubt and could be

inferred from presence at the place of persecution. And most case

law assumes or affirms the need for some degree of subjective

fault. See note 2, above.

The government's better arguments turn on the need for

some flexibility in applying the statute to gray areas and the

latitude implicitly confided to the Attorney General in

administering the scheme. Chevron U.S.A., Inc. v. Natural Res.

Def. Council, 467 U.S. 837, 843-44 (1984). Consider, for example,

cases of willful blindness or strong suspicions, or an abettor who

knows generally of a pattern of persecution while being ignorant of

specific incidents. There may well be gray-area cases where less

than full and detailed knowledge may suffice.

2
E.g., Miranda Alvarado v. Gonzales, 449 F.3d 915, 927-29 (9th
Cir.), cert. denied, 127 S. Ct. 505 (2006); Xie, 434 F.3d at 142-
43; Vukmirovic v. Ashcroft, 362 F.3d 1247, 1252 (9th Cir. 2004);
Hernandez v. Reno, 258 F.3d at 814-15; In re A--H--, 23 I. & N.
Dec. 774, 784 (BIA 2005).

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 But in the present case, it appears as if Castañeda

either had guilty knowledge or (as he claims) knew nothing about

the massacre until after it had occurred. If this is a case

somewhere in between--say, of strong suspicions or willful

blindness on Castañeda's part--the government has not spelled out

such a possibility. No such scenario is described in the IJ or

Board decisions, and the government does not point to any evidence

for such an "in between" assessment.

Nor is it an excuse for dispensing with scienter that

knowledge may be hard for the government to prove: in cases like

ours, once the government introduced evidence of the applicant's

association with persecution, it then became Castañeda's burden to

disprove that he was engaged in persecution. 8 C.F.R. §

1208.13(c)(2)(ii); see Abdille v. Ashcroft, 242 F.3d 477, 491 (3d

Cir. 2001). Here, this would require Castañeda to disprove

knowledge.3

We hold that presumptively the persecutor bar should be

read not to apply to Castañeda if his version of his state of mind

is accepted. On remand the agency can, if it wants, try to develop

a construction more favorable to the government. But this would

3
The government's evidence showed that atrocities had
occurred, that they were likely on account of political opinion,
and that Castañeda--wittingly or not--had been involved to the
extent described. This is enough to shift the burden to him.
Miranda Alvarado, 449 F.3d at 930; Salazar v. Ashcroft, 359 F.3d
45, 50 (1st Cir. 2004).

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have to be done expressly and persuasively, and not by vague

reference to the "totality of . . . conduct" that conflates the

question whether one's conduct constitutes "assistance" with the

question whether one possessed such scienter as may be required

under the circumstances.

The IJ, Board, and government's filings can all be read

to assume that scienter is not required and that any conduct with

an "objective effect" of facilitating persecution by others would

suffice to trigger the bar. The Board stated that "it may be true"

that Castañeda "lacked knowledge regarding the events which took

place following the August 8 massacre, including whether and how

many people were killed." Although the IJ came closer to

suggesting that Castañeda had guilty knowledge, the Board did not

adopt this ground and the IJ himself assumed that such knowledge

was unnecessary.

If the IJ and Board rested their decision upon a

misunderstanding of the legal elements of persecution, the ordinary

remedy is a remand to allow the matter to be considered anew under

the proper legal standards. INS v. Orlando Ventura, 537 U.S. 12,

16-17 (2002) (per curiam). The main question is how far this

misunderstanding infected the fact-finder's conclusion, and the

burden of showing lack of prejudice is normally on the party

wishing to excuse an error.

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 This would be a different case if the evidence clearly

established that Castañeda had guilty knowledge, or that his denial

of knowledge was unworthy of belief, so that remanding "would be an

idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S.

759, 766 n.6 (1969); see also Li v. INS, 453 F.3d 129, 137 (2d Cir.

2006). Here, however, there is no direct evidence of Castañeda's

knowledge; and the IJ's and the Board's adverse credibility

findings are independently vulnerable.

Credibility. Because the burden rested on Castañeda to

show that he was not a persecutor, the IJ and the Board needed to

do no more than make a well-reasoned and specific determination

based in the record that Castañeda was not credible in denying

timely knowledge of the massacre. The rule in Moore v. Chesapeake

& Ohio Ry. Co., 340 U.S. 573, 576 (1951)--that a fact cannot be

established by disbelieving a witness's denial of that fact--does

not assist one who (like Castañeda) bears the burden of proof as to

the existence of the fact (here, lack of knowledge) and fails to

carry it.

Although the fact-finder on the scene has the advantage

as to demeanor evidence, Cordero-Trejo v. INS, 40 F.3d 482, 487

(1st Cir. 1994), judges are expected--unlike juries--to give

reasons for their conclusions even on credibility. The reasons

must be "cogent" and "specific," Gailius v. INS, 147 F.3d 34, 46-47

(1st Cir. 1998), and must be "reasonably grounded in the record,

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viewed as a whole," Cordero-Trejo, 40 F.3d at 487. It is not our

task to "invent explanations that may justify" the agency's

conclusion. Dia v. Ashcroft, 353 F.3d 228, 260 (3d Cir. 2003) (en

banc).

The government may be arguing that the quality of the

explanation provided is irrelevant because, under a 1996 amendment,

"administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary," 8 U.S.C. § 1252(b)(4)(B).4 The quoted language reflects

a gloss by the Supreme Court as to when a court may disagree with

the fact-finder's weighing of evidence. See United States v.

Elias-Zacarias, 502 U.S. 478, 483 (1992). Neither we nor other

courts treat this language as eliminating the conventional

requirement that an administrative agency's explanation be

rational.5

4
A companion provision, more narrowly focused, provides: "No
court shall reverse a determination made by a trier of fact with
respect to the availability of corroborating evidence . . . unless
the court finds . . . that a reasonable trier of fact is compelled
to conclude that such corroborating evidence is unavailable." 8
U.S.C. § 1252(b)(4).
5
See, e.g., Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir. 2006)
(requiring that adverse credibility determinations be accompanied
by "specific, cogent, and supportable explanation"); Capric v.
Ashcroft, 355 F.3d 1075, 1086-87 (7th Cir. 2004) (same); Secaida-
Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003) (same); Gao v.
Ashcroft, 299 F.3d 266, 275-76 (3d Cir. 2002) (same); Gui v. INS,
280 F.3d 1217, 1225 (9th Cir. 2002) (same).

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 In this case, Hurtado could have been a rogue officer

acting without any direction, or knowledge of a planned atrocity

could have been (for obvious reasons) deliberately withheld from

Castañeda and others not directly involved in carrying out the

killings. Such possibilities do not prevent a fact-finder from

disbelieving Castañeda's denial of knowledge, but they underscore

the need for a rational explanation, rooted in the record, to

support a finding that Castañeda should be disbelieved.

On the present facts, a well-reasoned explanation by the

IJ and Board would likely require, first, specific findings with

record support that Castañeda lied, or evaded answering or was

significantly inconsistent in his responses to subsidiary

questions; and second, an inference that because he lied on these

subsidiary matters, his denial of advance or contemporaneous

knowledge of a massacre was also false. There are other ways to

discredit a witness, but the two-step sequence just described--

falsus in uno, falsus in omnibus--is the most plausible method in

this case.6

6
Under a provision enacted by the Real ID Act in 2005, Pub. L.
No. 109-13, div. B, tit. I, § 101(a)(3)(iii) (2005), codified at 8
U.S.C. § 1158(b)(1)(B)(iii), the fact-finder is entitled to draw
the falsus in omnibus inference based upon inaccuracies,
inconsistencies, or falsehoods "without regard to whether . . .
[they go] to the heart of the applicant's claim," 8 U.S.C. §
1158(b)(1)(B)(iii). This provision is not applicable here because
it applies only to asylum and withholding applications made post-
enactment, Real ID Act § 101(h)(2), but it would not cure the
problems with the IJ and Board reasoning in this case even if it
did apply.

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 The BIA and IJ together offered five specific reasons--

demeanor aside--for finding that Castañeda was not credible. We

consider each of the five in turn and find each flawed to varying

degrees--several badly so as to reasoning, record support, or both.

We summarize our conclusions as to each immediately below but leave

the details of each, together with necessary transcript quotations,

for an addendum to this decision.

Two of these reasons (the first and the fourth), although

weak, involve debatable interpretations of evidence, and we might

defer as to these subsidiary findings if they stood alone. But as

to the other three, the IJ's and Board's explanations do not make

sense and appear at odds with the record, and these flaws badly

undermine our confidence in the IJ's and Board's ultimate

conclusion that Castañeda was not credible in denying knowledge.

The BIA's and the IJ's first reason for finding Castañeda

not credible is that he failed to produce the transcript from his

military tribunal proceeding and, according to the IJ, Castañeda

was "extremely evasive and non-responsive" when questioned as to

why. The IJ offered no specific examples of evasion; and careful

inspection of the transcript suggests that Castañeda, who has no

legal training, was simply ignorant as to the existence of a record

and confused as to what was being asked of him.

Second, the BIA and IJ found that Castañeda gave

inconsistent testimony concerning whether he was in radio contact

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with Hurtado's and Riveri Rondon's patrols during the massacre.

The IJ's explanation, which the BIA summarized, is based

importantly on the IJ's mischaracterization of the record and the

attribution to Castañeda of statements that Castañeda did not make.

The demeanor evidence, related only to this issue, was that

Castañeda blinked more rapidly than usual.

Third, the IJ and BIA found that Castañeda was evasive

about the extent of human rights abuses committed by the Peruvian

military. In fact, the transcript shows that Castañeda was

consistent in answering that, while he knew that some human rights

violations had occurred, they were not the norm. This was not the

answer the prosecutor sought, but it was not evasive, vague or

inconsistent.

Fourth, the BIA and IJ found that Castañeda was evasive

about the judgment issued against Hurtado, the commutation of

Hurtado's sentence, and Hurtado's reappointment and promotion.

Whether Castañeda's testimony was inconsistent or incomplete in

some details is a judgment call; his basic position was consistent.

Castañeda's lack of mastery as to detail was hardly surprising

since Castañeda left Peru two years before Hurtado was sentenced,

and four years before Hurtado was reinstated and promoted.

The IJ's fifth and final ground--not adopted by the

Board--was that Castañeda was "incredible" in saying that he

learned of the massacre only three weeks after it occurred, given

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that he was debriefed after he returned to base. The IJ's finding

has no basis in the record: the massacre might well have been

concealed from anyone not directly involved for as long as

possible.

A State Department Human Rights Report, referred to by

the agency, said that Hurtado and "three other officers" bore

responsibility for the massacre. Castañeda was surely one of the

three others. But the State Department report cited only the

Senate Report and a preliminary military investigation not

otherwise identified. Since the Senate Report (quoted above) made

no finding as to Castañeda and the final military inquiry dismissed

the charges against him, the State Department reference provides no

basis for inculpating Castañeda and was not relied upon by either

the IJ or the BIA as a basis for discrediting him.

We do not say that the evidentiary record "compels" the

IJ and the Board to credit Castañeda's denial of prior or

contemporaneous knowledge. Rather, in explaining their conclusion,

the IJ and Board misstate Castañeda's testimony, apply labels (like

inconsistent and evasive) that are at odds with what the transcript

shows, and draw inferences that appear wholly speculative and

without record support. A remand for further consideration is the

proper remedy.

The suggestion may be made (see, e.g., He v. Ashcroft,

328 F.3d 593, 603-04 (9th Cir. 2003)) that remand gives the agency

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a second bite at the apple. The short answer is that, outside

criminal prosecutions governed by double jeopardy principles,

second bites are routine in litigation. If the agency decision is

flawed by mistaken legal premises, unsustainable subsidiary

findings, or doubtful reasoning, remanding to give the agency an

opportunity to cure the error is the ordinary course.7

By contrast, if the record compelled the IJ and the Board

to believe Castañeda, it would be appropriate--although not

necessarily required--for us to treat the issue of knowledge as

definitively resolved in Castañeda's favor. We might then limit

the remand solely to the issues that would remain (primarily,

whether Castañeda otherwise qualified for asylum). Naturally, the

barrier to such a determination is high--and it would be high even

without the restrictive language that Congress has adopted.

Castañeda urges that great weight should be given to the

Peruvian military court's dismissal of charges against him, and

says that the BIA erred in characterizing the proceeding as a

whitewash. Castañeda supplied no information about the

circumstances of the acquittal or how the grounds or evidence

related to the central issue here, namely, Castañeda's knowledge.

Moreover, the government submitted evidence calling into question

7
Orlando Ventura, 537 U.S. at 16-17; Cordero-Trejo, 40 F.3d at
492; Chen v. U.S. Dep't of Justice, 426 F.3d 104, 116-17 (2d Cir.
2005); Elzour v. Ashcroft, 378 F.3d 1143, 1154 (10th Cir. 2004);
Dia, 353 F.3d at 260.

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the impartiality of the tribunal, which the IJ and Board were

entitled to credit.

The only remaining affirmative evidence for Castañeda is

his own testimony. Although we think the IJ's and Board's parsing

of his testimony is seriously flawed, this does not mean that a

more cogent explanation would necessarily fail; nor is the Board or

IJ precluded on remand from reopening the record and taking further

evidence. 8 C.F.R. §§ 1003.2, 1003.23. In the end, the burden

remains upon Castañeda to persuade the fact-finder to believe his

denial of culpable knowledge.

One of the amici urges us to alter the deferential

standard of review conventionally applied in these cases, saying

that the immigration courts have a poor track record and should not

be trusted. The framework for review is largely dictated by

statute and binding Supreme Court precedent. E.g., 8 U.S.C. §

1252(b)(4); Orlando Ventura, 537 U.S. at 16. We will not raise the

bar, but will insist that the agency clear the bar and think it has

not yet done so here.

On remand, the IJ and Board are free to adopt the

position, or to assume arguendo, that knowledge is required in this

case and then to explain plausibly why it disbelieves Castañeda's

denial. They are also free to adopt (and then seek to defend on

appeal) a legal standard as to scienter different than the

presumptive one that we have framed, or to take additional evidence

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or to do both. If they do alter the standard, they may have to

provide a new evidentiary hearing so Castañeda can seek to meet it.

People are sometimes skeptical about whether an agency,

asked by a reviewing court to revisit a matter, will do so with an

open mind. We count on the agency to give this case a truly fresh

look, unclouded by any prior judgment of Castañeda's credibility.

Although we intend no criticism of the IJ, and the matter of

assignments is primarily for the agency, confidence in this

instance would be enhanced if a new IJ were to make the next

assessment.

The decision of the IJ and the Board excluding Castañeda

from asylum and/or withholding of removal under the persecutor bar

is vacated and the matter is remanded for further proceedings

consistent with this opinion.

It is so ordered.

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 ADDENDUM

In this case, the BIA and IJ together offered five

reasons for finding Castañeda not credible:

First, that he was evasive when asked to explain why he

failed to provide a transcript of his military court-martial;

Second, that he offered inconsistent and evasive

testimony concerning his radio contact with Hurtado and Riveri

Rondon's units during the Accomarca operation;

Third, that he was evasive concerning his knowledge of

the extent of human rights violations by the Peruvian military;

Fourth, that he was not forthcoming concerning the

judgment against Hurtado and Hurtado's subsequent reappointment to

the military; and

Fifth, that he was not credible concerning the manner in

which he claimed to have found out about the massacre.

In reviewing the transcript, there are some occasions in

which it appears that answers or inferences from answers may have

been affected by problems of translation and transcription. We

have noted these in the discussion that follows as part of our

attempt at an independent assessment. At the same time, it is fair

to note that Castañeda has not complained about these on appeal and

they are to some extent judgment calls concerning which the IJ--who

heard the testimony--has the superior vantage.

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1. Evasion Concerning Court-martial Transcript

The BIA and IJ's first reason for finding Castañeda not

credible is that Castañeda did not produce the transcript from his

military tribunal proceeding and, according to the IJ, he was

"extremely evasive and non-responsive" when the prosecutor

questioned him as to why he failed to do so. However, the IJ

offered no specific examples of evasion, and the transcript

suggests that Castañeda--who has no legal training--was confused as

to what was being asked of him and ignorant of the existence of

such a transcript, not evasive:

Q. Sir, are there any written documents or
reports that confirm your version of your actions
in the Accomarca incident?
A. Yes. I want to know regarding what documents
about what?
Q. I'm asking you if there is any report or
written accounting of the facts that support your
version of your location that day, the actions by
your patrol?
A. I have none of these documents. What I have
is the decision of the martial court without the
documents that I presented in that court remain
there.
Q. The prosecutor appeals the decision of the
court and the appeals court affirms what the
trial judge did, correct?
A. Yes. The judge's verdict that we were
innocent. We were exonerated . . .
Q. The government appealed that decision,
correct?
A. I did not know if the government appealed that
decision or not.
Q. But the decision was appealed and the appeal
court made a decision, correct?
A. I don't know very well what the procedures
about that. I don't know if the government makes
an appeal and it moves to a court of -- a supreme
military court or what I have was an interview

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with the human rights commission where I was
considered a member of that massacre and with the
previous investigation. Later on, I was taken to
martial court and as I said on four or five
occasions and after that, jury or judge, after
that I was found innocent.
PROSECUTOR TO JUDGE: This is non-responsive. I
asked about an appellate record.
JUDGE: Sir, answer the question. Do you know who
appealed the decision?
A. I did not know who appealed.
PROSECUTOR: But there was an appeal.
A. In the document it manifests an appeal. . . .
Q. Do you know what documents, what record the
appeal court looked at to decide what the facts
were so they can decide that the dismissal was
correct . . .?
A. What I know is that the commission of human
rights, I don't know if they represent the
government. I don't understand that very well.
I understand it was in the process of appealing,
appeal.
JUDGE: Sir, answer the question if you know the
answer. Do you know what records the appeal
court used, yes or no?
A. I do not know.
PROSECUTOR: The investigation that the army
conducted was in writing, correct, was reduced to
writing? Have you ever seen that document?
A. No.
Q. Did your defense attorney ever ask the
government to produce that in your defense?
A. I don't know if he presented something.
Q. Did you ever ask for a copy of this
investigation to assist in your defense at this
court-martial? . . .
A. No. I did not request documents.
Q. Why not?
A. Because I did not know what sort of documents
I need to ask or --
Q. No further questions . . .

-23-
2. Inconsistent Testimony Regarding Radio Communications

The BIA and IJ found that Castañeda gave inconsistent

testimony concerning whether he was in radio contact with Hurtado

and Riveri Rondon's patrols during the massacre. The IJ's

explanation, which the BIA summarized, is not supported by

substantial evidence in the record. The IJ reasoned as follows

(with key passages not supported by the evidence underlined):

[T]his court finds that [Castañeda] provided
inconsistent and evasive responses to his
activities regarding radio communication during
the massacre . . . .
During the first part of [his] cross-
examination, he testified unequivocally that it
was absolutely crucial for patrols during
military operations to communicate with each
other so that they did not have accidental
contact . . . . However, [Castañeda then said]
that he was not provided the radio frequencies
for the other patrols on that operation at
Accomarca. This is completely far fetched
. . . .
[Castañeda] testified very clearly in his
earlier testimony that coordinating an attack
with patrols from different bases would require
each patrol . . . responding to each other. Yet
. . . [h]e wants this Court to believe that he
was simply in his blocking position without
communication with anyone. Yet, later in his
cross-examination, he testifies that he extracted
from his position upon communication [with] his
commanders.
Early in his cross-examination, he
testified that the patrols communicated with each
other to avoid accidental contact. Yet, he would
have this Court believe that not only was he not
in radio control, but he was never given the
frequencies that [the attacking patrols] were
operating on . . . .
It is completely illogical that a blocking
force during a military operation . . . to block
an escape route, would not be informed by radio

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 of the attack on the target and of the status of
those being attacked, that is whether or not they
were fleeing . . . .
When the Government did question
[Castañeda] as to why he did not have the radio
frequencies . . . [his] answer was completely
non-responsive and evasive. He spoke of how the
attacking patrols could talk to each other, but
not the blocking patrols. He . . . never
answered the Government's question.

In addition, the IJ noted that Castañeda's "demeanor during this

part of his testimony" revealed him to be untrustworthy;

specifically, the IJ noted that Castañeda was "blinking his eyes in

an unusually rapid rate as compared with the rest of his

testimony."

Much of the IJ's reasoning mischaracterizes the record.

Castañeda never testified that "it was absolutely crucial" for

patrols to communicate with each other. He said that it was "very

important" to know the location of other patrols "to coordinate the

movement," and that he would "keep contact with the base by radio"

(emphasis added) to remain apprised of the location of other

patrols. The government lawyer asked, "Would you also make direct

contact via radio with other patrols in your area?" Castañeda

replied, "Sometimes"--not always.

There is no inconsistency between this colloquy and the

later exchange concerning the Accomarca operation, in which

Castañeda stated that he had no direct radio communication with the

attacking patrols. According to Castañeda, in the ordinary course,

patrols would remain in contact with, and receive orders from,

-25-
their base; they would not be in direct contact with other patrols.

This is consistent with his not having been provided radio

frequencies to communicate with the attacking patrols.

Contrary to the IJ's assertion, Castañeda never testified

"very clearly . . . that coordinating an attack with patrols from

different bases would require each patrol . . . responding to each

other." Rather, when asked how he coordinated an attack with other

patrols, he explained that communication between patrols was

indirect, traveling up and then back down the chain of command:

Each base has a patrol. The patrol will go and
conduct an operation. 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 the heads of patrol.

The government's counsel pressed, expressing skepticism

that patrols would be unable to communicate with each other.

Castañeda's response was not pellucid--due at least in part to what

appears to be poor translation or transcription--but the gist again

appears to be that patrols report to the heads of base:

There are different situations . . . . [T]he
organization of battalion against the guerrillas
is completely different [than in a conventional
war] and the company is segregated in base in an
expansion in an area. So the firing of
corroboration, they are through radio in
coordination with heads of base and also
transmitted to their patrol. One time, a patrol
was moved from a base by helicopter to the other
base to coordinate and attack a mission together,
but sometimes depending where the mission was,

-26-
 there was just the base . . . . Each base had a
[topographical chart] and they will indicate the
point for the patrol where they are at and for a
coordinated force.

Castañeda also never testified that "he was simply in his

blocking position without communication with anyone." Rather, he

consistently testified that he was in communication with his base,

but not with the attacking patrols. The colloquy was as follows:

Q. How were you told [that the attack had ended]?
A. They called me by radio and the captain told me
I could go back.
Q. Were you monitoring the radio?
A. I was listening to my radio operator.
Q. Were you able to pick up radio traffic between
the two teams that were in the attack?
A. No. I was not able to hear their communication
. . . .
Q. Did you hear the communication when the
platoons called their headquarters to . . . let
the headquarters know they were ready to [begin]
the attack?
A. No.
Q. You and the radio operator heard no other radio
traffic.
A. No. I did not hear any radio attack. . . .
Q. Who decided what frequency your radio would be
on for communicating with base?
A. There is a frequency established by base. . . .
Q. Were you were [sic] what frequency you needed
to communicate with these other patrols in the
case of an emergency, correct?
A. To communicate with my base.
Q. For example, if one of those patrols needed to
come towards your position, it would be helpful if
the two of you knew how to communicate, correct?
A. That's true.
Q. So you were informed what frequencies the two
attacking patrols would be using, correct?
A. That's correct, but both patrols entered from
the same place and where those patrols are
directed, four patrols are directed by the same
head of unit, but these orders came from the

-27-
 division. I had directly directed by the head of
commander of base.
Q. But who's got operational command of this
attack?
A. The head of the division . . . .
Q. Wasn't there a division frequency that they
could call you on?
A. I had only one frequency with my base.
JUDGE. Sir, it still hasn't been answered though.
Could you contact the other two patrols by radio,
yes or no?
A. No, I did not on my radio.
JUDGE. That's not what I asked. Could you contact
them by radio, yes or no?
A. No. I could not.
JUDGE. Why not?
A. Because I did not have their frequency.
JUDGE. Why not?
A. Because they didn't give them to me. I only
used to communicate with the head of my base that
was higher. . . .
Q. Did the attacking patrols know your frequency?
. . .
A. No.
Q. How do you know that they did not have your
frequency?
A. Because they never relayed anything. They only
responded to their head.

Finally, again, taking account of what appears to be poor

translation and transcription, Castañeda was not "completely non-

responsive and evasive" in answering the government's query as to

why he lacked the radio frequencies of the attacking patrols. The

government's counsel, in a long question, asked Castañeda to

reconcile the importance of coordination with the fact that he

lacked radio frequencies for the attacking patrols. The question

was followed by an objection and back-and-forth between Castañeda's

counsel and the IJ. Finally, Castañeda gave an answer that

emphasized advance planning as the keystone of coordination rather

-28-
than inter-unit communication, but the answer was clearly infected

by poor translation:

A. The planning is very important for
communication. At the time, there was a planning
that the commander from the other base the two
patrols were closely -- to the point where they
need to close those point and that they should not
move from there, just need to close those point.
There are two patrols in --
INTERPRETER. Your Honor, the Interpreter will need
to ask him about that.
JUDGE. Go ahead.
CASTANEDA. To patrol, to transport so they can act
as with direct orders from the division their
independence from the order that was given to the
heads of both bases so to cause as few possible
exit points and they planned it that.
Q. Sir, how do you exercise judgment independent
of the bases when you can't communicate with any
of the other units attacking the objective? Are
you sure none of those patrols could talk to each
other?
A. Yes. The attacking, the patrols could
communicate with each other. They were going to
talk to the -- the base. I have the same
frequency at my base, but correspond with the
sam[e] battalion.

As for the IJ's assertion that Castañeda blinked during

his testimony, even if this demeanor observation is given some

weight, the number of flaws in the IJ's reasoning and

characterization of the record is enough for us to find his

explanation wanting.

The government in its brief says that even if Castañeda's

testimony was consistent, it was illogical: because the Accomarca

operation was coordinated by the division rather than the

battalion, and because it was one of Castañeda's first combat

-29-
patrols, radio contact among patrols would seem especially

important. But this explanation was provided by neither the BIA or

the IJ (aside from the IJ's bare assertion, without any analysis,

that Castañeda's account was "far-fetched"). Nor does it find any

support in the record: given Castañeda's consistent testimony that

radio communication ordinarily took place up and down the chain of

command rather than among patrols, inter-patrol contact would seem

even less likely than usual in an operation where patrols were

drawn from separate battalions.

3. Castañeda's Knowledge of Human Rights Abuses Generally

The IJ and BIA found that Castañeda was evasive about the

extent of human rights abuses committed by the Peruvian military in

the emergency zone. The IJ stated, "At one point at the beginning

of the Government's cross-examination on this issue, [Castañeda]

testified that he is aware and was aware that human rights

violations were occurring . . . . However, moments later, [he]

changes his testimony, becomes significantly vague in his answers,

and in fact disagrees with the State Department['s description of]

hundreds upon hundreds of killings . . . ."

In fact, inspection of the transcript reveals that

Castañeda was consistent in his answer: he knew that some human

rights violations occurred, but they were not the norm. While this

answer did not dovetail with the knowledge that the prosecutor

-30-
wished to impute to Castañeda, neither was it evasive, vague, or

inconsistent. Several times in the questioning the IJ interjected,

asserting that Castañeda had not answered the question posed to

him; but the transcript shows that Castañeda did in fact answer the

question posed. The colloquy follows:

Q. Prior to August 1985, did you become aware of
the security forces meaning the Peruvian army
engaging in extrajudicial killings,
disappearances, torture . . . and arbitrary
detentions? Are you aware of that?
A. Yes.
. . .
Q. Most of these violations occurred in the
emergency zone. Is that correct?
A. Some of it. It was not the norm.
JUDGE. Sir, I don't understand that answer. The
question was, did most of these violations that
you are aware of like the extrajudicial killings
and torture by the Peruvian army occur in the
emergency zone?
A. Could you let me explain or do you want just
the plan [sic] answer?
PROSECUTOR. Can you answer that yes or no?
A. I did not know that. I know of very rare
cases . . . .
Q. Did you discuss these cases with your
commanders or did your commanders discuss them
with you?
A. About what?
Q. The Peruvian army engaging in extrajudicial
killings and torture of Shining Path guerrillas.
A. The information of the torture, we didn't
unless it was some military. They inform us all
this. That's what I knew was the minority of
some elements outside of the rule, a minority.
They have some of it, but not the entire Peruvian
military. Sometimes, by some bad elements that
belonged to this organization and they have been
retired military.
JUDGE. Sir, that does not answer the
question . . . .
PROSECUTOR. I'll move on, Judge . . . . [Citing
the State Department Human Rights Report:] Total

-31-
 deaths related to any terrorist operations of the
security forces are estimated by human rights
groups as being in the thousands from 1980 to
'85. Does that sound incorrect?
A. Correct.
Q. What were you aware of prior to August 1985?
A. I knew that some very few bad element.
Q. Sir, could I have specifics? What
specifically did you know about army personnel
committing human rights abuses prior to August
15, 1985? What were you aware of? What had you
heard?
A. That there were a number of officers that had
detained terrorists or possibly terrorists in an
unjust manner.
Q. What about killings, sir?
A. Officers that had detained prisoners and that
they were executed.
Q. What about civilians suspected of supporting
[the Shining Path]? . . .
A. . . . I did not know about detained civilians.
I did not know that they had detained civilians
accused of helping and then being killed.
Q. What about suspected [Shining Path] terrorists
being executed or tortured?
A. I'm talking about some official. I heard of
that acted on -- acting with no orders, taking
justice in front of the military group.
Q. Sir, you were aware that this kind of thing
happened on occasion prior to August 15, 1985.
A. Occasionally, not constantly.
Q. Were you aware of any incidents that happened
in your area of operation in anti terrorist
battalion 34? . . .
A. In others. I participated in this operation.
Q. I'm talking about prior to this operation.
A. No. I did not know.
Q. We're talking about just in the area of
battalion 34.
A. I did not know.

4. The Judgment Against Hurtado

The BIA and IJ found that Castañeda was evasive about the

judgment issued against Hurtado, the commutation of Hurtado's

-32-
sentence, and the reappointment of Hurtado to the military. The IJ

reasoned that Castañeda

in a very evasive way . . . stated that . . .
anyone who is convicted of such a crime like
Lieutenant Hurtado would be automatically
dismissed from the military. Yet, when
[Castañeda] was presented moments later by the
Government with evidence that Lieutenant Hurtado
was in fact never convicted of murder, but was
only convicted of abuse of authority, [Castañeda]
then immediately changed his testimony and
admitted that he had heard about that through the
media . . . .
However, when given the opportunity by the
Government prosecutor moments earlier to tell the
Court what he knew about Lieutenant Hurtado,
[Castañeda] did not do so. This goes directly to
his credibility.

In fact, Castañeda did not change his testimony. He

testified that he believed Hurtado had been convicted of murder.

When presented with a State Department Human Rights Report

indicating that Hurtado had in fact only been convicted of abuse of

authority, Castañeda responded: "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, but maybe the murder is

instead of the disobedience, sorry, abuse of authority."

The prosecutor also asked Castañeda whether Hurtado had

been discharged. Castañeda responded, "I do not know really if he

was discharged. What I know is that he was recluded in prison."

After some additional questioning, Castañeda added, "[E]very

officer expected for a situation like in this case, he's

automatically discharged. That's what I know. I did not try to

-33-
find out what privileges he might have had and what had happened to

his life." A little later, the prosecutor quoted from a State

Department Human Rights Report to the effect that Hurtado had

"reappeared on active duty," and the following colloquy took place:

Q. Do you know whether Lieutenant Hurtado was
promoted to captain?
A. I did not know that. I find out through public
media when I was here in the United States, but he
was not involved in activity which I did not know
was true or if he was absolved by some law. I did
not know that.
Q. Would you surprise you to know that he was
promoted after been convicted and sentenced?
A. Yes. It was a surprise.

Later on, when asked again about his knowledge of Hurtado's release

from prison and promotion, Castañeda further clarified:

A. I did not know he was promoted to captain. I
think he was not absolved. I only heard the
comments in the news and the TV.
Q. What comments did you hear on TV?
A. I heard the comments that he was promoted to
captain and that the army was demanding that.

Taking his testimony as a whole, Castañeda testified

consistently that he did not know whether Hurtado was actually

discharged, even though that would be the normal procedure in a

case such as his; and that he was surprised when he learned from

the news media that--in contravention of ordinary procedures--

Hurtado had apparently been promoted. Nor is it surprising that

Castañeda knew few of the details concerning Hurtado's sentence and

ultimate reinstatement and promotion. Hurtado was sentenced in

-34-
1993, two years after Castañeda left Peru, and was not released

from prison and reinstated until a general amnesty in 1995.

The testimony was not flawless: one could perhaps infer

that Castañeda had held back his knowledge of Hurtado's

reinstatement until pressed on the subject by the government.

Whether one regards this as significant, and infers from it that

Castañeda was evasive, is very much a judgment call.

5. The Manner in which Castañeda Learned of the Massacre

The IJ's final ground for finding Castañeda not credible

concerned Castañeda's testimony about how he learned of the

massacre: he testified that he first learned of the killings three

weeks later on the radio. The IJ found it "incredible that

although [Castañeda] reported back to his base and although he was

debriefed, he was never aware that approximately 69 civilians were

raped and murdered by the other two patrols that he claims were

four or five miles away."

This is pure speculation by the IJ: there is no basis in

the record for the IJ's conclusion that because Castañeda was

debriefed following the operation, he would necessarily or even

likely have been informed about a massacre committed by the head of

another patrol. The Board chose not to rely on this ground in

affirming the IJ's general finding that Castañeda was not credible.

-35-