638 F.3d 354 (1st Cir. 2011), 09-1847, Castaneda-Castillo v. Holder

Docket Nº:09-1847.
Citation:638 F.3d 354
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:David Eduardo CASTA
Attorney:William P. Joyce, with whom Joyce & Associates P.C., was on brief for petitioners. Matt A. Crapo, Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Tony West, Assistant Attorney General, Civil Division, and Michelle Gorden Latour, Assistant Director...
Judge Panel:Before TORRUELLA, RIPPLE,[*] and LIPEZ, Circuit Judges.
Case Date:March 24, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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638 F.3d 354 (1st Cir. 2011)

David Eduardo CASTAÑ EDA-CASTILLO; Carmen Julia De La Cruz-Castañeda; Piera Dina Castañeda, Petitioners,

v.

Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09-1847.

United States Court of Appeals, First Circuit.

March 24, 2011

Heard Sept. 13, 2010.

Page 355

[Copyrighted Material Omitted]

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William P. Joyce, with whom Joyce & Associates P.C., was on brief for petitioners.

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

Before TORRUELLA, RIPPLE,[*] and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

This is the latest round in a lengthy series of proceedings adjudicating petitioner David Eduardo Castañeda-Castillo's petition for asylum and withholding of removal.1 Castañeda's asylum claims have previously been before this court, having already been the subject of a 2006 panel opinion, Castañeda-Castillo v. Gonzáles, 464 F.3d 112 (1st Cir.2006) ( " Castañeda I " ), as well as an en banc decision a year later, Castañeda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir.2007) (" Castañeda II " ).2 In Castañeda II, we vacated the decisions of the Immigration Judge (" IJ" ) and Board of Immigration Appeals (" BIA" ) applying the " persecutor bar" to Castañeda's asylum claims, and held that the persecutor bar could not be applied to block asylum claims absent a finding that the individual involved had actual knowledge that he or she was engaged in the persecution of others. Castañeda II, 488 F.3d at 22. We remanded the case for further proceedings.

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The instant appeal is from the decision of the BIA reviewing the IJ's decision on remand. For reasons explained below, we conclude that the IJ and BIA adjudication of Castañeda's asylum petition was marred by legal error. Consequently, we again vacate the denial of Castañeda's asylum petition and remand for further proceedings.

I.

The root of the controversy is Castañeda's role in a 1985 massacre of sixty-nine civilians in Accomarca, Perú during Perú's struggle with the Shining Path movement, a violent Maoist insurgent group that " is among the world's most ruthless guerrilla organizations." Castañeda I, 464 F.3d at 114 n. 3. What follows is an abbreviated summary of the facts and procedural posture of the instant appeal. Readers seeking further details are advised to refer to our earlier 2006 panel decision, id. at 113-22.

In 1985, Castañeda was a military officer stationed in Perú's Ayacucho region, the birthplace of the Shining Path. Castañeda's duties included training and leading patrols. In August of that year, Castañeda's patrol was ordered to assist in an operation in the remote village of Llocllapampa in the Accomarca region, which was believed to be a Shining Path stronghold. The goal of the operation was to search for Shining Path guerrillas, between forty and sixty of whom were believed to be in the village. The operation involved four patrols: two would enter the village to conduct the search, while the other two would block escape routes. Castañeda's patrol was one of the latter, and was assigned to guard a location on a path several miles from the village, through which fleeing militants would likely pass. Castañeda was therefore not present when the two patrols that entered the village, led by Lieutenant Riveri Rondón and Sub-Lieutenant Telmo Hurtado, proceeded to massacre dozens of civilians.3 Castañeda testified that although he was in communication with the base commander via radio, he was not in communication with any of the other patrols, and did not know their radio frequencies so could not contact them in any event. Castañeda and his patrol remained in position until ordered to return home by the base commander; at no point during the operation did he or his men see anyone coming down the path, and no shots were fired by Castañeda or his patrol.

Castañeda testified that he did not learn of the bloodletting until three weeks later, when he heard on the radio that Hurtado had confessed to executing civilians. A few weeks later, in September of 1985, Castañeda was called to testify before a Peruvian Senate Human Rights Commission investigating the matter. The Commission noted that Castañeda's patrol was " not involved in any confrontations with fugitive civilians." Charges were subsequently filed in the Peruvian military courts against the leaders of all four patrol units, including Castañeda. He was acquitted of all charges by the Appeals Division of the Supreme Council of Military Justice. Hurtado, who was the only person convicted by the tribunal, was thereafter released under a general amnesty passed by former President Alberto Fujimori.

As a result of the publicity surrounding the events at Accomarca, Castañeda's name became linked to the massacre. El

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Nacional, a Peruvian newspaper apparently sympathetic to the Shining Path, published Castañeda's name in connection with the killings as early as October of 1985. Castañeda and his family subsequently began to receive death threats from the Shining Path. 4 On June 26, 1986, Castañeda was attacked near his home, while dressed in civilian clothes. The attackers left behind leaflets stating " spilled blood will never be forgotten." Later, in March of 1987, a group of gunmen attempted to stop the cab in which Castañeda was riding, but Castañeda and the driver were able to escape. Undeterred, the next month the Shining Path attacked a restaurant where Castañeda and several other military officers were having lunch. A bomb exploded minutes after he left, killing two military officers and " five or six" civilians.

The Shining Path did not limit its attacks to Castañeda alone. It also targeted his family. The Shining Path detonated explosives near his parents' home, leaving behind death threats that referred to his military code name, and contained veiled references to the killings at Accomarca. In 1989 an attempt was made to kidnap his daughter Pía from her school. The attack was foiled by the vigilance of the school's director, who subsequently requested that Pía be removed from the school because her presence endangered the other students.

Finally, in October of 1990, Castañeda's neighbor and colleague was murdered at home, in front of his family. Like Castañeda, he was a member of the military who had been involved in the counter-insurgency, and had also been receiving death threats from the Shining Path over a number of years. After this incident, the Castañedas moved frequently, staying with relatives, but never together and never for more than a few days at a time. Castañeda received an honorable discharge from the Peruvian military on June 4, 1991, and the family fled for the United States shortly thereafter.

The Castañedas arrived in Miami on August 29, 1991 on B-2 visitor, non-immigrant visas. Castañeda applied for asylum on January 19, 1993, naming his wife and daughters as derivative applicants. After being charged with removability under the Immigration and Nationality Act (" INA" ) § 101(a)(15), he conceded removability on May 1, 2000. An initial adverse decision by the IJ on October 4, 2004 was subsequently affirmed by the BIA on September 9, 2005. The BIA " affirmed the [IJ's] adverse credibility finding and stated that, even if Castañeda were credible, he had assisted or otherwise participated in the persecution of others." Castañeda I, 464 F.3d at 121. The Department of Homeland Security (" DHS" ) subsequently took Castañeda into custody, where he remained for approximately the next five years, until August 17, 2010, when he was ordered released upon posting $15,000 bail.

Castañeda appealed to this court. An initial panel decision found that the BIA's

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adverse credibility determination, as well as its finding that Castañeda had engaged in persecution of others, was not supported by substantial evidence. Castañeda I, 464 F.3d at 121-22. The DHS petitioned for rehearing. The court, this time sitting en banc, held that the persecutor bar, which excludes former persecutors from eligibility for asylum, requires that the asylum seeker have prior or contemporaneous knowledge that the effect of his or her actions is to assist in persecution. See Castañeda II, 488 F.3d at 21-22; INA § 208(b)(2)(A)(i), codified at 8 U.S.C. § 1158 (persecutor bar for asylum); INA § 241(b)(3)(B)(i), codified at 8 U.S.C. § 1231 (persecutor bar for withholding of removal). Accordingly, we vacated the BIA's decision and remanded to allow the BIA to determine whether Castañeda was credible in claiming that he did not learn of the Accomarca massacre until long after he had returned from his patrol. In addition, we rejected the IJ and BIA's adverse credibility determinations as to Castañeda's denial of prior or contemporaneous knowledge of the massacre as " wholly speculative and without record support," and remanded for further consideration. Castañeda II, 488 F.3d at 24.

On remand, the IJ again denied Castañeda's renewed application for asylum and withholding of removal, holding (1) that he had not met his burden of proving that he was not a persecutor, (2) that he had not demonstrated that he was persecuted on account of his membership in a particular social group or for a political opinion, and (3) that he did not have an objectively reasonable fear of future persecution. On appeal, the BIA reversed the IJ as to point (1), noting that " there is too slim a reed of evidence upon which to conclude that the respondent had prior or contemporaneous knowledge of the Accomarca massacre," and thus concluded that the persecutor bar...

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