Diaz-Zanatta v. Holder
| Citation | 558 F.3d 450 |
| Decision Date | 04 March 2009 |
| Docket Number | No. 08-3097.,08-3097. |
| Parties | Luisa Margarita DIAZ-ZANATTA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Douglas S. Weigle, Bartlett & Weigle, Cincinnati, Ohio, for Petitioner. Michael C. Heyse, United States Department of Justice, Washington, D.C., for Respondent.
ON BRIEF:
Barry L. Frager, Frager Law Firm, Memphis, Tennessee, for Petitioner. Michael C. Heyse, Mary Jane Candaux, United States Department of Justice, Washington, D.C., for Respondent.
Before KENNEDY, BATCHELDER, and DAUGHTREY, Circuit Judges.
Luisa Margarita Diaz-Zanatta seeks review of the denial of her petition for asylum and withholding of removal. An immigration judge ("IJ") found that, because Diaz-Zanatta had "assisted or otherwise participated in the persecution" of others, see 8 U.S.C. §§ 1158(B)(2)(a)(i) and 1231(b)(3)(B)(i), while she was a member of Peruvian military intelligence, she was ineligible for these forms of relief. The IJ instead granted Diaz-Zanatta a deferral of removal under the Convention Against Torture.1 The Board of Immigration Appeals ("BIA") affirmed and adopted the IJ's opinion. Diaz-Zanatta now petitions for review.
The government contends that the meaning of the statutory language "assisted, or otherwise participated in the persecution," as written in 8 U.S.C. §§ 1158 and 1231, is plain and unambiguous, and, in any event, is controlled by Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), a case involving these terms in a different statute and in the context of the denaturalization of an individual who had been a guard at a Nazi concentration camp. We disagree with the government's view, and conclude that the legal analysis of these terms when applied to an alien who is accused of having "assisted or participated in persecution" in the context of working for a legitimate arm of a recognized government differs materially from that analysis when applied to an alien who served as a Nazi concentration camp guard. Because we further conclude that in applying the persecution bar to Diaz-Zanatta, the IJ erred as a matter of law by failing to conduct the appropriate analysis and make the necessary findings of fact, we will remand the case for further proceedings.
In 1993, Diaz-Zanatta graduated from military intelligence school and became an intelligence analyst with a division of the Peruvian military—the Servicio de Inteligencia del Ejercito ("SIE" or "army intelligence"). The SIE was charged with collecting intelligence about and apprehending terrorists, who were then supposed to be handed over to the Directorate Against Terrorism ("DIRCOTE") for placement in the judicial system. Diaz-Zanatta was required to gather information on individuals and pass that information up the chain of command. For example, one of Diaz-Zanatta's first assignments was to attend a meeting for an organization at the University of San Marcos and report whether a particular professor had communist tendencies. Shortly after beginning her employment with the SIE, Diaz-Zanatta became aware of conduct by other factions of the Peruvian military that led her to believe that human rights violations were taking place at the hands of the military, and that the suspected terrorists were not being handed over to the judicial system for trial. The first such instance occurred in June 1993, when Diaz-Zanatta heard screams coming from the basement of the building in which she worked.
Diaz-Zanatta testified that she reported her concerns to her supervisor and requested an immediate transfer. In August 1993, she was reclassified to work at a broadcasting department of Peruvian intelligence. Over the ensuing years, Diaz-Zanatta was assigned a number of different jobs. The precise chronology and details of these jobs are not clear from the record, but it appears that from this point on, Diaz-Zanatta worked as an operative for the SIE. On one of her assignments, Diaz-Zanatta was placed at the Real Felipe Museum where she worked undercover as a secretary and provided information to the SIE. On another assignment, Diaz-Zanatta listened to and transcribed telephone conversations of designated individuals.
Diaz-Zanatta claimed that she was mistreated throughout her tenure at SIE. Early in her career, after she first expressed concern to her supervisor about the possibility that human rights violations were taking place, the supervisor began sexually harassing her. Throughout her career, she was sexually harassed by a number of different individuals in the Peruvian military. Diaz-Zanatta claimed that Major Ricardo Anderson, one of the supervisors who had sexually harassed her, came to her house, broke the windows, pointed his gun at her sister, and then beat Diaz-Zanatta until she lost consciousness. When she reported this to the police, the military threatened her and demanded that she retract her accusations.
In late 1996, Diaz-Zanatta had a discussion with an old friend, Mariela Barreto, who was also an SIE agent. Barreto told Diaz-Zanatta that she had been a member of a para-military group that was responsible for many deaths and disappearances around Peru, including the massacre of a number of professors and students at La Cantuta University. Because she had felt very guilty about her involvement in these atrocities, Barreto said, she had leaked information about them to the magazine "Si," and now she was suspected of leaking this information and feared for her life. Less than a month later, Barreto was found dead, her body dismembered. About a week after that, another of Diaz-Zanatta's colleagues who had spoken out about the abuses of the Peruvian military was found beaten and paralyzed. Diaz-Zanatta characterized these incidents as creating a period of "hysteria" in the Peruvian intelligence community. It was clear that the beating and killing of Diaz-Zanatta's colleagues was carried out by individuals linked to the Peruvian military and SIE. In fact, Diaz-Zanatta's former supervisor Major Anderson, was among those the police arrested.
Diaz-Zanatta was deeply troubled by all of this. In an effort to substantiate the claims of her former colleagues and to save the life of a journalist who had spoken out against human rights abuses, she began secretly to leak information to the press. Not surprisingly, Diaz-Zanatta also began to fear for her own life. On one occasion, government agents attempted to run over her with a vehicle, but instead struck and severely injured one of Diaz-Zanatta's female colleagues. About a week later, a friend warned Diaz-Zanatta that her life was in jeopardy, and on December 16, 1997, Diaz-Zanatta left SIE and fled to the United States.
Since arriving in the United States, Diaz-Zanatta has spoken out repeatedly against the human rights violations that were carried out by the Peruvian government, making public declarations to numerous press outlets, including CNN, CBS, ECCO, The Miami Herald, El Nuevo Herald, London's BBC, and Italian televison. For her efforts, she has received death threats while she has been living in the United States, and she fears that she would be tortured or killed if she were to return to Peru.
Diaz-Zanatta applied for asylum and withholding of removal. The IJ denied Diaz-Zanatta's application on the grounds that she was ineligible for these forms of relief because, while working for SIE, she had:
assisted or otherwise participated [in persecution] by writing the reports or by transcribing the verbatim conversations that she heard and by sending them up the chain of command. Not unlike the death camp guard in [Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981) ], who participated in the process even if he did not operate the gas chambers, respondent was an important part of operating this process.
Diaz-Zanatta argued that, at least initially, she did not know that such persecution was taking place, and that the persecution was being carried out by rogue paramilitary elements within Peruvian intelligence, not by the general Peruvian intelligence community itself. The IJ did not make any findings on these arguments, but instead, by equating Fedorenko's holding that the statute at issue there contains no involuntary assistance exception to the persecution bar, 449 U.S. at 512, 101 S.Ct. 737, to a holding that there is no exception for lack of knowledge of the persecution, noted that "her knowledge was immaterial." The BIA affirmed and adopted the IJ's opinion.
Where the BIA summarily adopts the IJ's decision without issuing its own opinion, we review the decision of the IJ as the final administrative order. Hasan v. Ashcroft, 397 F.3d 417, 419 (6th Cir.2005). "[T]he factual findings of the IJ are reviewed under the substantial-evidence standard, and we will not reverse those findings `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir.2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). But "[a] determination based on flawed reasoning . . . will not satisfy the substantial evidence standard, and the agency's use of an inappropriately stringent standard when evaluating an applicant's testimony constitutes legal, not factual error." Balachova v. Mukasey, 547 F.3d 374, 380 (2d Cir.2008) (internal quotations and citations omitted). "[W]e generally review questions of law de novo, but `defer to the [IJ]'s reasonable interpretations of the INA.'" Singh, 451 F.3d at 403 (quoting Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005)).
Congress has prohibited the granting of asylum and withholding of removal to any alien who "ordered incited, assisted, or otherwise participated in the persecution of any person on account of race,...
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