Castañeda-Castillo v. Gonzales

• Decision Date: 23 May 2007
• Docket Number: No. 05-2384.,05-2384.
• Citation: 488 F.3d 17
• Parties: 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.
• Court: U.S. Court of Appeals — First Circuit

488 F.3d 17

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.

No. 05-2384.

United States Court of Appeals, First Circuit.

Heard April 4, 2007.

Decided May 23, 2007.

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.

Before BOUDIN, Chief Judge, TORRUELLA, SELYA, LYNCH, LIPEZ, and HOWARD, Circuit Judges.

OPINION EN BANC

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 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 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 Nationality 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" 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.

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 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, 101 S.Ct. 737 66 L.Ed.2d 686 (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 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, 112 S.Ct. 331, 116 L.Ed.2d 272 (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...