Castañeda-Castillo v. Holder

• Decision Date: 17 July 2013
• Docket Number: No. 09–1847.,09–1847.
• Citation: 723 F.3d 48
• Parties: David Eduardo CASTAÑEDA–CASTILLO; Carmen Julia De La Cruz–Castañeda; Piera Dina Castañeda, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

723 F.3d 48

David Eduardo CASTAÑEDA–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.

July 17, 2013.

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 sixth (and hopefully the final) installment of Petitioner David Eduardo Castañeda's tumultuous voyage through our nation's immigration system. Castañeda began his journey more than twenty years ago, when he arrived in the United States seeking political asylum based on the alleged persecution he suffered at the hands of the Shining Path, a ruthless guerrilla organization bent on overthrowing the government of Perú. On February 6, 2012, after his case generated three court-of-appeals opinions, one district court opinion, and numerous administrative determinations, an Immigration Judge (IJ) finally granted asylum to Castañeda and his family members. Subsequently, on April 12, 2012, we entered final judgment closing Castañeda's case. See Castañeda–Castillo v. Holder, 676 F.3d 1 (1st Cir.2012) ( “Castañeda V ”). In so doing, we cautioned that we were taking “no position on the deadline for filing, or potential merit of, an application for attorneys' fees under the Equal Access to Justice Act.” Id. at 3. On July 12, 2012, Castañeda filed such a petition, seeking to be awarded the attorneys' fees he incurred while litigating his case in federal court, as well as the attorneys fees related to the administrative proceedings he underwent. After careful consideration, we grant his petition in part and deny it in part.

I. Background

The full history of this case is chronicled in the four prior opinions of this court and one opinion of the U.S. District Court for the District of Massachusetts. See Castañeda–Castillo v. Gonzales, 464 F.3d 112 (1st Cir.2006) (“Castañeda I ”); Castañeda–Castillo v. Gonzales, 488 F.3d 17 (1st Cir.2007) (en banc) (“Castañeda II ”); United States v. Castañeda–Castillo, 739 F.Supp.2d 49 (D.Mass.2010) (“Castañeda III ”); Castañeda–Castillo v. Holder, 638 F.3d 354 (1st Cir.2011) (“Castañeda IV ”); and Castañeda V, 676 F.3d 1. The following relevant facts are culled from those decisions.

A. The Accomarca Massacre

Castañeda, a former lieutenant in the Peruvian army, was accused of taking part in the massacre of innocent villagers in Accomarca, Perú (the “Accomarca Massacre”) in 1985, during the country's bloody struggle with the revolutionary Shining Path movement. Castañeda II, 488 F.3d at 19. Castañeda led one of the four patrols involved in the Accomarca operation but was three to five miles away from the massacre, id., and was not in any way involved in, or responsible for, the heinous actions of the larger force. Castañeda IV, 638 F.3d at 357;Castañeda II, 488 F.3d at 19. The Peruvian Senate Human Rights Commission investigated the events and determined that Castañeda's squad “was not involved in any confrontations with [the] fugitive civilians” who were killed. Castañeda II, 488 F.3d at 19. Despite this finding, Castañeda was charged with homicide and abuse of authority before a military tribunal, although said charges were ultimately dismissed. Castañeda V, 676 F.3d at 2. The dismissal was affirmed by the Supreme Council of Military Justice, Perú's highest court with jurisdiction over military justice matters. See id.;Castañeda III, 739 F.Supp.2d at 52.¹ Notwithstanding, Castañeda's name became associated with the Massacre, and he and his family began receiving death threats from the Shining Path, Castañeda IV, 638 F.3d at 357–58, a violent group that “is among the world's most ruthless guerrilla organizations,” Castañeda I, 464 F.3d at 114 n. 3. Thereafter, members of the Shining Path sent death threats to Castañeda, attempted to murder him twice and to kidnap one of his daughters, and set off explosives in front of his parent's home. Castañeda I, 464 F.3d at 120–21. In fact, a bomb that went off shortly after he left a restaurant with his family killed several innocent bystanders. Castañeda IV, 638 F.3d at 358. In 1991, following the murder of his neighbor, a former military officer who apparently was also in the Shining Path's cross-hairs, Castañeda and his family decided to flee Perú, and they arrived in the United States on tourist visas. Castañeda I, 464 F.3d at 120–21.

B. The Petition for Asylum; Castañeda I and II

In 1993, Castañeda filed the petition for asylum that gave rise to the instant saga. Castañeda V, 676 F.3d at 2.² It was not until 2004 that the petition was denied by an IJ, who found that Castañeda was barred from applying for asylum and withholding of removal because he had participated in the persecution of others on account of their political opinion, given his presumed role in the military during the Accomarca Massacre. Id. The Board of Immigration Appeals (BIA) affirmed in 2005. Id. Castañeda was subsequently incarcerated and spent the next five years in the Department of Homeland Security's (DHS) custody, until he was finally released on bail in August 2010. Id. In the meantime, Castañeda pursued a petition for review before us challenging the BIA's denial of his petition for asylum (the “first petition for review”). Said petition gave rise to our decision in Castañeda I, where we found that the BIA's determination that Castañeda had engaged in the persecutionof others was not supported by substantial evidence. Castañeda I, 464 F.3d at 137. Subsequently, we granted the government's request to rehear the case en banc, which resulted in our decision in Castañeda II. There, we held that for the persecutor bar to apply to Castañeda, he must have had prior or contemporaneous knowledge that his actions during the Accomarca Massacre had the effect of assisting in the persecution of others. Castañeda II, 488 F.3d at 21–22. We remanded the case back to the immigration agencies for them to determine whether Castañeda was credible when he denied having said knowledge. Id. at 24–26.

Following remand, the IJ again denied Castañeda's application for asylum and withholding of removal, holding that (1) he had not met his burden of proving that he did not persecute others; (2) he had not established that he was persecuted on account of his membership in a particular social group or because of his political opinion; and (3) he had not established that he had an objectively reasonable fear of future persecution. Castañeda IV, 638 F.3d at 359. In May 2009, the BIA reversed the IJ as to point (1), concluding that there was insufficient evidence to support the IJ's finding that Castañeda had prior or contemporaneous knowledge of the Accomarca Massacre. Id. Nevertheless, the BIA upheld the IJ's decision as to points (2) and (3), reasoning that the Shining Path did not target Castañeda because he was a member of a particular social group—members of the military who were linked to the Accomarca Massacre—rather, they targeted him out of revenge for the massacre. Id. at 362–63. The BIA then found that Castañeda failed to prove that he had a genuine fear of future persecution were he to return to Perú and thus denied his application for asylum. Id. at 359.

C. Castañeda IV

In June 2009, Castañeda filed a petition for review of the BIA's ruling before this court (the “second petition for review”). Said petition gave rise to our decision in Castañeda IV, where we held that the BIA committed legal error when it reasoned that the Shining Path's vindictive motivation precluded a finding of persecution on account of a statutorily protected ground. Id. at 363. In light of the “ordinary remand rule,” we sent the case back to the BIA for consideration of whether “Peruvian military officers whose names became associated with the Accomarca massacre” constituted a cognizable social group. Id. We emphasized, however, that the “unusually prolonged and convoluted history of this case prompt[ed] us to take the further step of retaining jurisdiction over Castañeda's appeal while the BIA addresses these issues on remand.” Id.

On October 11, 2011, the BIA ruled that military officers linked to the Accomarca Massacre comprised a cognizable social group and that Castañeda suffered past persecution due to his membership in such a group. Castañeda V, 676 F.3d at 3. The case was remanded to the IJ so that she could determine whether the government could rebut the presumption that Castañeda harbored a well-founded fear of persecution if he were to return to Perú. Id. On February 6, 2012, an IJ granted asylum to Castañeda and his family, effectively laying to rest an application for asylum that had been pending for almost twenty years. Id.

D. Castañeda V

Castañeda's legal battles, however, were not over. He returned to this court and filed a motion requesting that we enter a final judgment in his favor, noting that, in Castañeda IV, this court had elected to retain jurisdiction over the post-remand proceedings, and that it was now time to “officially terminate this [c]ourt's jurisdiction.” In response, the government argued that we had no authority to issue a final judgment, because we “lack[ed] jurisdiction to pass judgment on the merits of this case.” Id. It maintained that Congress granted courts of appeals jurisdiction to review only final orders of removal, and that, as the IJ's decision to grant asylum to Castañeda was not such an order, we lacked jurisdiction to enter a final judgment effectively sanctioning her award of asylum as final.

In Castañeda V, we rejected that argument. 676 F.3d at 1. We explained that when we remanded ...