Of the Ninth Circuit, sitting by designation. *

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. GONZÁLES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Hug, Senior Circuit Judge, *

and Lynch, Circuit Judge.

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

brief, for petitioners.

Robbin K. Blaya, Attorney, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, with whom Peter

Keisler, Assistant Attorney General, and Greg D. Mack, Senior

Litigation Counsel, were on brief, for respondent.

September 29, 2006
 Castañeda's wife and daughters were included in his asylum 1

application.

 The dissent claims that our discussion of the facts is 2

"materially incomplete" and proceeds to submit its own version of

the facts. Although it is certainly entitled to do so, we have

some basic disagreements with this rendition both by reason of its

content and its emphasis. With due respect, we believe that

certain parts of its recitation are either irrelevant or taken out

of context and clearly the subject of explanation. Perhaps a more

egregious problem is presented by the inclusion of certain

additional details, particularly those contained in page 9, line

11, through page 10, line 4, of the dissent, which recount the

actions of persons for whom Castañeda was not responsible and who

were without his command or authority, and additionally, for which

Castañeda was absolved of responsibility. The inclusion of this

information in the dissent's recount is thus not only unnecessary

and irrelevant to a discussion of the issues before us, but also is

unduly inflammatory and distracts from the proper focus of the

legal issues raised by this appeal. The offending facts, although

part of the decisions below, and undoubtedly an improper factor in

the erroneous outcome reached, add nothing material to the appeal

before us. Throughout this opinion we will, in footnotes and

elsewhere, explain where we have disagreement with the dissent's

recitation of these and other matters.

-2-

TORRUELLA, Circuit Judge. Petitioners David Eduardo

Castañeda-Castillo ("Castañeda"), his wife, and two daughters ask 1

us to review a decision of the Board of Immigration Appeals ("BIA")

denying their applications for asylum and withholding of removal.

The BIA based its decision on a finding that the petitioners were

barred from being granted asylum or withholding of removal because

Castañeda had assisted or otherwise participated in the persecution

of others on the basis of their political opinion. See 8 U.S.C.

§§ 1158(b)(2)(A)(i) and 1231(b)(3)(B)(i). After careful review, we

grant the petition for review and reverse the decision of the BIA.

I. Facts and Procedural Background2
 The Shining Path is a Maoist guerrilla group that "is among the 3

world's most ruthless guerrilla organizations" and "[e]ngages in

particularly brutal forms of terrorism, including the

indiscriminate use of bombs." The Institute for Counter-Terrorism,

available at http://www.ict.org.il/inter_ter/orgdet.cfm?orgid=40

(last visited on August 2, 2006). The State Department has

designated the Shining Path as a foreign terrorist organization.

See United States Dept. of State, Country Reports on Terrorism,

2004 (April 2005), available at

http://www.state.gov/s/ct/rls/45394.htm (describing the Shining

Path as "one of the most ruthless terrorist groups in the Western

Hemisphere" and noting that "[a]pproximately 30,000 persons have

died since Shining Path took up arms in 1980"). The Shining Path

has perpetrated mass executions and committed "numerous massacres

of entire families including young children and the elderly."

Anthony James Joes, Resisting Rebellion: The History and Politics

of Counterinsurgency, 117 (2004).

 In March 2003, the relevant functions of the INS were 4

transferred into the new Department of Homeland Security and

reorganized into the Bureau of Immigration and Customs Enforcement

("BICE"). For simplicity, we refer to the agency throughout this

opinion as the INS.

-3-

Castañeda is a native and citizen of Perú and was an

officer in the Peruvian army. He and his family entered the United

States with tourist visas at Miami, Florida, on August 19, 1991.

They overstayed, and Castañeda applied for asylum in January 1993,

claiming that he and his family had been persecuted by the

terrorist group Sendero Luminoso ("Shining Path") while they were

in Perú. Castañeda was interviewed at the Immigration and 3

Naturalization Service's ("INS") asylum office on May 19, 1999. 4

The asylum officer referred the application to an Immigration Judge

after finding that Castañeda had not met his burden of proof for

establishing eligibility for asylum. On July 7, 1999, the INS

issued Notices to Appear ("NTA") to Castañeda and his family,
 The first Immigration Judge left the bench after Castañeda had 5

already presented his entire testimony but before making a

decision. The second Immigration Judge decided to hear Castañeda's

testimony again "in order to make [my] own determination of not

only the lead respondent's credibility, but the facts before [me]."

 Castañeda testified in Spanish. His testimony was translated 6

into English by an interpreter. During the government's crossexamination of Castañeda, the interpreter participated in the

hearing via telephone and was not actually in the courtroom. This

caused problems during the testimony, as the interpreter often had

to ask Castañeda to repeat his answers or the government to repeat

its questions so that she could interpret them and often had to

clarify or correct the original interpretations. We think it is

important to note this fact because, in our view, some of the

supposed inconsistencies or evasiveness mentioned by the dissent

were more likely than not simple problems in translation. For

example, when asked whether he could contact other patrols by radio

during a military operation on August 5, 1985, Castañeda originally

replied "No. I did not on my radio." The Immigration Judge then

stated "That's not what I asked" and asked the question again, to

which Castañeda replied "No. I could not."

-4-

charging them with removability under Section 237(a)(1)(B) of the

Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B),

for remaining in the United States for a time longer than

permitted.

Beginning February 16, 2000, Castañeda and his family

appeared at twelve different hearings before two different

Immigration Judges. Castañeda was the only person to testify at 5

the hearings. We glean the following facts from his testimony and 6

the evidence presented at the hearings.

Castañeda joined the Peruvian military in 1979. In 1983,

upon graduation from military academy, he was commissioned as a

second lieutenant and assigned to a motorized infantry battalion.
 According to the State Department's 1985 Country Reports on 7

Human Rights Practices in Perú, the emergency zone was an area in

which there was a declaration of a state of emergency and the armed

forces were given full civil and military authority.

-5-

His original duties included teaching military training, such as

the use of weaponry, handling of prisoners, community service, and

guarding equipment. After twelve months, Castañeda was transferred

to another unit in Tumbes, a region in northern Perú near the

border with Ecuador. Castañeda testified that, during this time,

the military was fighting the Shining Path. Most of this fighting,

however, occurred in the Ayacucho region in the Andes,

approximately 400 miles to the south of Tumbes. While at Tumbes,

Castañeda was a platoon commander and his duties included training

and instructing the men in his section.

In January 1985, Castañeda was transferred to Battalion

34, an anti-terrorist battalion. Battalion 34 was located in the

Ayacucho region, which is the birthplace of the Shining Path, and

was referred to as the "emergency zone" due to the Shining Path's

presence in the region. The battalion was divided into different 7

bases. Each base was led by a captain or lieutenant. According to

Castañeda, each base had around forty men. Castañeda's

responsibilities increased in Battalion 34, as his duties included

both training and leading troops out on patrols. Upon his arrival

at Battalion 34, Castañeda was assigned to a base in Sacchaeamba,

a rural mountainous area. Castañeda was the head of a twenty-man
 The dissent states that Castañeda said it was "'very important 8

to coordinate the movement.' Castañeda said his patrol would 'keep

contact with the base by radio,' and at least sometimes would make

direct radio contact with other patrols in the area." One possible

implication of the dissent's phrasing is that Castañeda was stating

that radio contact with other patrols was important to coordinate

the movement. However, we wish to be clear that Castañeda was not

testifying that radio contact with other patrols was important to

coordinate movement. Rather, his statement that it was "important

-6-

patrol, and went out on his first patrol one day after arriving at

Sacchaeamba.

Castañeda testified that a major whose code name was Wolf

instructed him on what areas to patrol. Wolf, who was not at

Castañeda's base, would communicate the patrol area to the

commander of the base by radio. The base commander would then

relay that information to Castañeda. Castañeda testified that, at

times, the patrol route was very specific, while at other times the

patrol route was general and it was left up to Castañeda to decide

the route. Castañeda also testified that his patrol sometimes

operated independently of other patrols, while at other times his

patrol's movements were coordinated with the movements of other

patrols.

Castañeda testified that when he was on an independent

patrol his base commander would inform him of other patrols'

positions via radio in order to avoid overlapping. He also

testified that he sometimes made direct radio contact with other

patrols, and that it was important to know the location of other

patrols in the area in order to coordinate movement. When there 8
to coordinate the movement" was in response to the question "Was it

important to know the location of other[s] in your area?" From the

full context of the statement, it is clear that Castañeda was

simply stating that it was important to know the location of other

patrols to coordinate movement, not to have actual radio contact

with them. Castañeda had already testified that he kept in radio

contact with his base and that his base commander would let him

know where other patrols were, although he also sometimes had

direct radio contact with the other patrols.

-7-

were several patrols conducting a mission, Castañeda testified that

each patrol leader responded to his base commander, who in turn

responded to the battalion commander, who coordinated the mission

with other base commanders.

According to Castañeda, before going out on any patrol,

he was briefed on the mission of the patrol by the base commander.

He was given an order that explained the situation on the ground,

the possible location of the enemy, what the patrol would be doing

on the mission, what route to take, and what equipment to carry.

If, while on patrol, one of his men was injured, Castañeda was

instructed to radio the base so that the man could be evacuated.

He also had flares in the event that radio communication was down.

Castañeda testified that at times he had difficulty making radio

contact due to interference caused by the dense terrain.

There were two types of patrols, combat and

reconnaissance. Combat patrols engaged the enemy, while

reconnaissance patrols gathered information. Most of the patrols

were conducted at night in order to avoid detection by the Shining

Path. Castañeda testified that if, while on a reconnaissance
This zone was located within the Ayacucho region, i.e., the 9

emergency zone.

-8-

patrol, he received intelligence that the Shining Path was in the

area, he would immediately radio the base commander for

instructions on what action to take. He could not engage the enemy

without approval from his commander unless the patrol was being

attacked or was in some sort of danger. Castañeda testified that,

during his time at Sacchaeamba, he went on approximately twentyfive patrols, most of them reconnaissance. He never had any direct

contact with the Shining Path.

Sometime in June or July of 1985, Castañeda, while still

in Battalion 34, was transferred to a base in Vilcashuan, where he

remained the head of a patrol. He testified that the procedures

and missions were the same as they had been at the base in

Sacchaeamba.

Castañeda further testified that he was involved in a

significant operation (the "Operation") in August 1985, about a

month after he arrived at the base in Vilcashuan. The Operation

involved four patrols. Two patrols, code-named Links 6 and Links

7, were to enter a village named Llocllapampa in the Accomarca

zone to search for Shining Path members. Links 7 was led by Sub- 9

Lieutenant Telmo Hurtado ("Hurtado"), and Links 6 was led by

Lieutenant Riveri Rondón ("Rondón"). Two other patrols were
 Apparently, Llocllapampa is located between two mountains, and 10

there were very few paths into or out of the village.

-9-

assigned to block escape routes from the village. Castañeda led 10

one of these blocking patrols, code-named Tiger. Castañeda could

not remember the name of the leader of the other blocking patrol,

code-named Wolf. According to Castañeda, he received his orders a

few hours before his patrol left from his base commander, who

received them from the command of the division located in the city

of Humanaga. Castañeda testified that he was briefed on the

mission of the other patrols before he left. He was told that

there were between forty and sixty Shining Path guerrillas in the

village. Castañeda's patrol took vehicles part of the way and went

on foot the rest of the way. Castañeda and his men were armed with

machine guns and a rocket launcher. They wore Peruvian military

uniforms and also had masks on, both to avoid recognition by the

Shining Path and to keep their faces warm. One of Castañeda's men

had a radio to contact their base commander. Castañeda testified

that he was near his radio operator during the Operation.

Castañeda's patrol was the first to arrive at its

destination. Once at the assigned location, which was three to

five miles away from the village, Castañeda separated his men into

three groups. They hid themselves about thirty meters from

different sides of the path. Castañeda testified that he was the

one who would have made the decision whether to open fire if anyone
 The dissent states that, when asked if he was informed what 11

frequencies the two attack patrols were using, Castañeda replied

"That's correct." However, the dissent leaves out the rest of

Castañeda's reply. The full quote is "That's correct, but both

patrols entered from the same place and where those patrols are

directed, four patrols are directed from the same head of unit, but

these orders came from the division. I was directly directed by

the head of commander of base." From this full quote, it is clear

that Castañeda misunderstood the question, and was explaining that

the four patrols were directed by a division head, and that his

orders during the Operation came directly from the head commander

of his case. A few questions later, Castañeda explicitly clarified

that he could not contact the other patrols because he did not have

their frequency.

 The dissent notes that, when asked what happened in the village, 12

Castañeda originally stated that "[o]ne of the patrols . . .

committed excesses." The implication behind the inclusion of this

fact is that Castañeda was being evasive. This is not the case.

-10-

came down the path. He testified that he was in radio contact with

his base commander, who relayed any information Castañeda provided

back to the division headquarters. Castañeda testified that he was

not informed when the other patrols were ready to attack and he did

not know when the attack began. Castañeda testified that he was

only able to communicate with his base; he did not have the

frequencies for any of the other patrols and therefore could not

hear any of their communications. Castañeda also stated that none 11

of the other patrols had his frequency, although each of the two

attacking patrols had the other's frequency.

Apparently, the Wolf blocking patrol got lost and never

reached its assigned destination. Castañeda testified that the two

other patrols, Links 6 and 7, entered the village and massacred

civilians. A subsequent report by a Peruvian Senate Human Rights 12
From the transcript, it appears that, after Castañeda testified

about "excesses," the Immigration Judge interjected to ask the

interpreter what she had said. The government then asked Castañeda

if he could be more specific, and Castañeda immediately replied

that the patrol had executed civilians. We do not think that this

sequence of events indicates any evasiveness on Castañeda's part.

 The dissent argues that Castañeda's testimony shows that he was 13

evasive regarding his knowledge of the number of civilians killed

in Llocllapampa. This is incorrect. The Human Rights Commission

noted that there were three different reports regarding the number

of civilians killed: twenty-five, forty, and sixty-nine. It also

noted that the exact number could not be determined. To this day

the exact number of civilians killed is unknown. Castañeda was

therefore entirely correct in stating that he never learned the

exact number of people killed.

-11-

Commission ("Human Rights Commission") found that up to sixty-nine

civilians were killed, including many women and children.

According to Castañeda, he did not find out about the massacre

until nearly three weeks after the Operation, when he heard that

Hurtado had admitted to executing civilians. He stated that he

heard this news on conventional radio. He testified that he did

not learn exactly how many civilians were killed because different

reports contained different estimates. According to Castañeda, 13

he and his men stayed in their positions until his base commander

told him the Operation was over and ordered him to return to base.

Castañeda testified that he and his men never saw anyone come down
 This testimony is supported by other aspects of the record, 14

which we discuss infra.

 The dissent makes much of the fact that Castañeda was debriefed, 15

arguing that the debriefing means it is unlikely that he did not

find out about the massacre until three weeks later, as he claimed.

We have two responses. First, Castañeda stated that the

"debriefing" simply meant that he gave a report to his base

commander. He gave no indication that he met with the other

patrols or discussed what the other patrols did, and there is no

evidence in the record to controvert that testimony. Second, it

would make sense that those who slaughtered the civilians would not

tell other soldiers who were not involved. One would expect that

those who participate in the murder of innocent civilians would not

openly discuss what they have done with others who did not engage

in such atrocities.

As previously noted, we are concerned that the dissent's 16

description of the murders of the villagers is inflammatory, and we

therefore want to emphasize that it is undisputed that Castañeda

was not involved in the killing of any civilians. He was also

-12-

the path and never fired any shots. Once back at base, he was 14

debriefed.15

News of the massacre was eventually reported by various

media outlets and a formal investigation followed. Castañeda

testified before a Peruvian Senate Human Rights Commission on

September 26, 1985. He was represented by a military lawyer at the

hearing. The Human Rights Commission concluded that what occurred

during the Operation amounted to genocide. It noted that the

probable number of people killed in the massacre was sixty-nine,

but that it was hard to determine the exact number because many of

the bodies had been destroyed by explosions from grenades. It also

noted that Castañeda's patrol, Tiger, was "not involved in any

confrontations with fugitive civilians." The Human Rights 16
later absolved of responsibility by a military court, a fact which

we discuss in more detail below.

The dissent is equally inflammatory in speculating, in footnote 3,

that "if Hurtado was acting on orders, rather than in the heat of

the moment, it is much more likely that Castañeda would have known

about the massacre before it happened". Such speculation loses

sight of the facts of the case: there is no evidence that Hurtado

was acting on orders to commit the massacre, and there is no

evidence that Castañeda would have known of these hypothetical

orders had they ever been given.

 The dissent notes that the Human Rights Commission stated that 17

Hurtado "is only a piece of the larger picture and it is necessary

to study whether he acted on virtue of expressed verbal orders."

One possible implication of this isolated fact is that Castañeda

was perhaps part of the "larger picture." However, taking the

statement within the context of the report, it is clear that the

Commission was concerned that persons with a higher military rank

had ordered Hurtado to kill the civilians. In particular,

elsewhere in the report the Commission refers to possible "verbal

orders" given to Hurtado by a general named Wilfredo Mori Orzo.

Nothing in the report indicates Castañeda had any orders beyond

those to watch the path for any Shining Path guerrillas or that

Castañeda was somehow part of the "larger picture."

A more egregious misconstruction of the facts of the case is the

dissent's statement that "[i]t is disputed whether [Castañeda] knew

about the massacre before or while it took place." Again, there is

no evidence that the massacre was planned or that Castañeda had

knowledge of these plans if they ever existed. The IJ did dispute

whether Castañeda learned, via radio contact, of the massacre as it

took place. However, this dispute is irrelevant. Castañeda did

not have authority over Hurtado and he was located 3 to 5 miles

outside of Llocllapampa. Had Castañeda learned of the massacre as

it transpired, he would not have been able to either assist or stop

it.

-13-

Commission found that Links 7, under Hurtado's command, was the

group that carried out the massacre.17

The massacre was also documented by the State

Department's 1985 Country Report on Human Rights Practices for

Perú. The 1985 State Department Report states that "[a]n Army sub-
 In stating that "three officers [including Castañeda] were 18

responsible" for the massacres, the report was drawing from initial

reports by the Peruvian military and the Human Rights Commission.

It should not be taken as a definitive finding that Castañeda was

responsible for the massacre, especially since it was released in

February 1986 and thus does not take into account Castañeda's

subsequent acquittal by the Peruvian military court system

following a formal proceeding. We discuss the acquittal below.

-14-

lieutenant and three other officers were responsible for the

Accomarca massacre of some 25 to 69 peasants. A separate

investigation by the Senate Human Rights Commission supported these

conclusions." Castañeda admitted that he was one of the officers

referred to in the 1985 State Department Report. The 1985 State

Department Report indicated that the men involved in the massacre

were charged in the military and civilian systems, and that the

Peruvian Supreme Court would decide final jurisdiction.18

The Human Rights Commission recommended that those

involved be tried in civilian -- as opposed to military -- court.

However, the Peruvian Supreme Court decided that the military

courts had jurisdiction. Castañeda, along with Hurtado, Rondón,

and the officer who led the missing Wolf patrol, was charged in a

military court martial in March or April 1986. Castañeda was

charged with first degree murder, homicide, and abuse of authority.

In connection with the court martial, Castañeda appeared in a

military court four or five times. He was represented by a

civilian lawyer that he paid for. A judge presided over the

proceedings. At the court martial, Castañeda testified in his own
 From the record, it appears that the Peruvian military justice 19

system has three levels: a trial level, an appeals level, and the

Supreme Council of Military Justice as the highest level.

-15-

defense, answering questions from the judge and the prosecutor. He

stated that he did not know if he had the right to examine other

witnesses and did not remember if he was told that he had that

right, but that no witnesses testified at any of the hearings.

When asked by the government what evidence the prosecution

presented against him, Castañeda stated that "[t]hey didn't show me

evidence regarding the patrol that I had." Castañeda's evidence

included the presentation of an operation chart that specified the

position of each patrol.

Castañeda stated that he was found innocent of all

charges. In support of this, he produced a document from the

Supreme Council of Military Justice showing that the Appeals

Division affirmed the dismissal of the charges against him.19

Castañeda provided no other evidence related to his court martial.

However, the State Department's 1999 Country Report on Human Rights

Practices for Perú indicates that Castañeda was in fact acquitted.

Hurtado was the only officer convicted by the military

tribunal. Castañeda testified that Hurtado was convicted of

"participating in the assassination of those village people." The

government's attorney then asked "[s]o [Hurtado] was convicted of

murder?," to which Castañeda replied, "[y]es." Castañeda also

testified that Hurtado was incarcerated in a military prison, but
The record indicates that Hurtado's case was still pending when 20

Castañeda left Perú in 1991. A final disposition of Hurtado's case

did not occur until 1993.

 Castañeda did testify that, after he came to the United States, 21

he had heard rumors that Hurtado had been promoted to captain, but

he did not know if they were true.

-16-

that he did not know the length of Hurtado's sentence. When asked

whether Hurtado was ever discharged from the military, Castañeda

testified that he thought so, because that was the result required

by Perú's military code, but he could not be sure.20

The government then introduced evidence -- in the form of

the State Department's 1995 Country Report on Human Rights

Practices for Perú -- that Hurtado had reappeared on active duty

and had been promoted to captain. When asked if he had heard about

this, Castañeda stated "I did not know," and later testified that

it would surprise him to know that Hurtado had been promoted after

he was convicted and sentenced. At this point, the government 21

introduced the 1999 State Department Report, which indicated that

Hurtado had been convicted only for abuse of authority; had been

promoted to captain at some point between the massacre and 1993,

when he was finally sentenced; and had been released from prison

under a general amnesty passed in 1995 by then President Alberto

Fujimori and the Peruvian Congress. When asked if Hurtado had been

convicted only for abuse of authority, Castañeda replied: "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,
-17-

but maybe the murder is instead of the disobedience, sorry, the

abuse of authority."

Castañeda testified that he was aware of atrocities

committed by the Shining Path against police officers, soldiers,

and civilians. He admitted that he was aware that, prior to August

1985, the Peruvian military had at times engaged in extrajudicial

killings, torture, and arbitrary detentions. When asked to

explain, he stated that he had heard of officers who had detained

terrorists or possible terrorists in an unjust manner, and had also

heard of detained prisoners being executed. Castañeda testified

that he had not heard about any civilians being detained or killed.

According to Castañeda, some of these actions by the Peruvian

military occurred in the emergency zone, but it "was not the norm."

At one point, the government presented Castañeda with a portion

from the 1985 State Department Report, which stated that "[t]otal

deaths related to antiterrorist operations of the security forces

are estimated by human rights groups as being in the thousands for

1980-85." Castañeda testified that the number sounded incorrect.

Castañeda also testified that the Peruvian military had

a good reputation for investigating and prosecuting military

members for human rights violations. In an attempt to rebut this

testimony, the government introduced evidence that in 2004 the

current Peruvian Prime Minister had called for the annulment of

previous rulings by the military justice system "that breach human
-18-

rights, so that there can be in the future no further excuses or

pretexts to avoid persecution." Castañeda denied having any

knowledge of these developments, and stated that he did not know

whether any annulment of prior rulings would affect his case.

After the court martial hearings concluded, Castañeda

returned to duty. He experienced no professional problems as a

result of the charges brought against him. In January 1991, he was

promoted to the rank of captain. However, due to the publicity

surrounding the massacre and the court martial, Castañeda's name

and face had appeared in certain newspapers detailing the

allegations against him. As a result, he and his family began to

receive death threats and to experience other problems from the

Shining Path. In April or May of 1986, Shining Path members set

off explosives in front of the home of Castañeda's parents.

Castañeda knew the Shining Path set off the explosives because they

left pamphlets with the Shining Path's seal. In June of 1986,

Shining Path members allegedly shot at Castañeda and set off an

explosive device while he was waiting for public transportation

near his home. On other occasions, the Shining Path left

propaganda containing written threats at the homes of both

Castañeda and his parents. Castañeda stated in an affidavit that

he had been threatened on over twenty occasions. In 1989, Shining

Path members allegedly attempted to kidnap one of Castañeda's

daughters from school. Finally, in 1990, one of Castañeda's
-19-

neighbors, who was also in the military and had been receiving

threats from the Shining Path for several years, was murdered in

his home and in front of his family by the Shining Path.

Following his neighbor's murder, Castañeda decided to

take his family and leave Perú. He obtained tourist visas for

himself and his family, retired from the military, and came to the

United States.

On October 4, 2004, the Immigration Judge found that

Castañeda was barred from applying for asylum and withholding of

removal because he had assisted or otherwise participated in the

persecution of others on account of their political opinion. In

support of this determination, the Immigration Judge first found

that Castañeda was not credible. The Immigration Judge also found

that, even if Castañeda were credible, he had assisted or otherwise

participated in the persecution of others on account of their

political opinion.

Castañeda appealed to the BIA, which affirmed the

Immigration Judge on September 9, 2005. Writing its own opinion,

the BIA affirmed the adverse credibility finding and stated that,

even if Castañeda were credible, he had assisted or otherwise

participated in the persecution of others. Castañeda has timely

appealed to this court. He argues that the BIA's adverse

credibility determination is not supported by substantial
 Castañeda's petition was filed after the passage of the Real ID 22

Act of 2005, Pub. L. 109-13, 119 Stat. 302. The Real ID Act

"alters, among other things, the standards governing credibility

determinations and the need for corroboration of testimony in

asylum cases." Dhima v. Gonzáles, 416 F.3d 92, 95 n.3 (1st Cir.

2005). However, because Castañeda's asylum application was filed

well before the effective date of these provisions of the Act, the

provisions are inapplicable here.

 The regulations dealing with asylum applications filed on or 23

after April 1, 1997 do not explicitly contain this burden shifting

provision. See 8 C.F.R. § 1208.13(c)(1). However, because

Castañeda's application was filed in 1993, there is no issue

-20-

evidence, that the BIA erred in disregarding the decision by the 22

Supreme Council of Military Justice purporting to affirm the

dismissal of charges against him, and that the BIA erred in finding

that he had assisted or otherwise participated in the persecution

of others on account of their political opinion.

II.

A. Standard of Review and Legal Standard

Under the INA, an alien is ineligible for asylum or

withholding of removal if he or she "ordered, incited, assisted, or

otherwise participated in the persecution of an individual because

of the individual's race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). Under the applicable

regulations, if evidence is produced showing that the alien engaged

in such persecution, the alien must prove by a preponderance of the

evidence that he or she did not engage in such persecution. 8

C.F.R. §§ 1208.13(c)(2)(ii), 1208.16(d)(2).23
regarding what the burden should have been before the Immigration

Judge.

-21-

"Where the BIA does not adopt an IJ's opinion but instead

makes an independent, superceding decision, we review the decision

of the BIA, and not that of the IJ." Xu v. Gonzáles, 424 F.3d 45,

48 (1st Cir. 2005). "We review factual findings and credibility

determinations . . . under the deferential substantial evidence

standard." Dhima v. Gonzáles, 416 F.3d 92, 95 (1st Cir. 2005).

Under this standard, we may not reverse the BIA's factual findings

"'unless any reasonable adjudicator would be compelled to conclude

to the contrary.'" Kheireddine v. Gonzáles, 427 F.3d 80, 88 (1st

Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)). However,

"credibility findings resting on analysis of testimony rather than

on demeanor may deserve less than usual deference." Cordero-Trejo

v. INS, 40 F.3d 482, 487 (1st Cir. 1994) (citation and internal

quotation marks omitted). Finally, we review legal questions de

novo. Ziu v. Gonzáles, 412 F.3d 202, 204 (1st Cir. 2005).

B. Credibility Determination

1. The BIA's Findings

The BIA gave five different reasons for its affirmation

of the Immigration Judge's adverse credibility determination: (1)

that the military tribunals appeared to be fraudulent and Castañeda

failed to submit documentary evidence of the proceedings beyond the

document that showed his acquittal; (2) that Castañeda gave
-22-

inconsistent testimony regarding whether or not he was in radio

contact with the other patrols during the Operation; (3) that

Castañeda's demeanor during questioning on radio communications

indicated a lack of veracity; (4) that Castañeda was evasive

regarding the extent of human rights violations by the Peruvian

military; and (5) that Castañeda was not forthcoming about what

happened to Hurtado. Having carefully reviewed these reasons,

along with the record, we believe that the adverse credibility

determination was not supported by substantial evidence. We

address each reason in turn.

The BIA first faulted Castañeda for not providing

documentary evidence of what happened at his military court martial

other than the document -- which the BIA found was not properly

authenticated -- from the Clerk's Office of the Supreme Council of

Military Justice showing that the Appeals Division had affirmed the

dismissal of the charges against him. The BIA also stated that

there was "evidence that the military tribunal was a way in which

to grant impunity to the alleged persecutors who took part" in the

Operation.

We begin by noting that the document from the Clerk's

Office of the Supreme Council of Military Justice is not the only

evidence supporting a finding that Castañeda was acquitted. The

1999 State Department Report specifically states that, except for

Hurtado, "all the other defendants" were acquitted of any
 The BIA also stated that "the respondent's evidence of his 24

dismissal is not necessarily the legal equivalent of a criminal

finding that he was innocent." This statement is belied by the

record, as the 1999 State Department Report specifically notes that

all the defendants (including Castañeda) except Hurtado were

"acquitted." To the extent the BIA was requiring an actual finding

of "innocent," in our view such a requirement would be unreasonable

as it goes beyond what even our own justice system offers. Under

our own justice system, defendants who are "acquitted" are found

"not guilty," they are not found "innocent."

The dissent argues that the BIA did not require an actual

finding of innocence, but simply required Castañeda to show his

innocence through court documents or otherwise. We disagree. The

BIA specifically discounted Castañeda's evidence because it was not

"the legal equivalent of a criminal finding that he was innocent."

(emphasis supplied). Our point is that, under our own justice

system, it would have been impossible for Castañeda to provide such

a finding, and it was therefore unreasonable to discount the

evidence of his acquittal simply because it is not a criminal

finding of innocence.

-23-

involvement in the massacre. Given Castañeda's testimony and this

documentary evidence, coupled with the lack of any evidence to the

contrary, we conclude that it is uncontroverted that he was in fact

acquitted.24

The Immigration Judge concluded -- and the BIA agreed --

that the military tribunals were a fraud on the basis of two

documents: (1) the 1995 State Department Report, which stated that

the military tribunal system often accorded impunity to the

perpetrators of human rights abuses; and (2) an article from Latin

American Weekly Report, dated August 31, 2004 (the "Article").

We begin our discussion of the military tribunals by

noting that the Supreme Council of Military Justice, along with its

lower tribunals, is a duly constituted judicial body in Perú. This
 There is some indication that the Immigration Judge, and perhaps 25

the BIA, faulted Castañeda for not providing evidence of an

acquittal from the civilian court system of Perú. We wish to note

that, to the extent that the decision rested on these grounds, it

was erroneous. The highest body of the civilian court system, the

Supreme Court of Perú, determined that the military system had

jurisdiction over Castañeda's case. There is therefore no doubt

that the case was properly before the military courts, and there is

simply no reason to fault Castañeda for not providing evidence of

acquittal in the civilian system.

-24-

military system, which was granted jurisdiction over Castañeda's

case by the Peruvian Supreme Court, acquitted Castañeda. In 25

general, American courts will give deference to decisions of

foreign tribunals. See, e.g., Finanz AG Zurich v. Banco Económico,

192 F.3d 240, 246 (2d Cir. 1999) (discussing deference to

determinations made by foreign courts due to principles of

international comity); Casey v. Dep't of State, 980 F.2d 1472, 1477

(D.C. Cir. 1992) (discussing deference to a determination of a

foreign court in an extradition proceeding); Chiaramonte v. INS,

626 F.2d 1093, 1098 (2d Cir. 1980) (discussing the principle of

international comity in relation to criminal convictions obtained

in a foreign country); Restatement 2d, Conflict of Laws § 98. In

the instant case, the Immigration Judge and BIA chose not to give

any weight whatsoever to Castañeda's acquittal. That determination

was not supported by substantial evidence.

As for the Article, it reported on a conflict between

Perú's civilian and military justice systems following the Peruvian

Supreme Court's ruling that the military system's jurisdiction
-25-

extended only to offenses committed in the furtherance of military

duties (and not to human rights violations). It also contained a

quote from the Peruvian Prime Minister calling for "the annulment

of [military] rulings that breach human rights, so that there can

be in the future no further excuses or pretexts to avoid

prosecution." We note that there is absolutely no indication that

the Prime Minister considered the ruling in Castañeda's case to

have breached human rights. Further, the Article appears to only

talk about events that occurred in the 1990s under the regime of

former President Fujimori. The Article does not make any allusion

to events that occurred in the 1980s. Finally, although the

Peruvian Prime Minister at the time of the Article called for the

annulment of certain rulings, there is no evidence whatsoever that

any rulings were annulled, much less Castañeda's acquittal. In

sum, there is no indication that the Article is in any way

applicable to Castañeda's particular case, nor that the Peruvian

Prime Minister's statements were anything more than pure rhetoric.

We do not think that the Article was enough to overcome the

deference ordinarily due a decision by a duly constituted foreign

tribunal. In fact, it is nothing short of anomalous that undue

weight is given to a magazine "article", yet no weight is given to

a finding of a duly constituted tribunal.

Regarding the 1995 State Department Report, we note that

it does mention that Hurtado had reappeared on active duty after
-26-

serving some jail time. However, other parts of the record

indicate that in 1995, then-President Fujimori and Perú's Congress

passed a law extending amnesty to military members convicted of

human rights abuses between 1980 and 1995. Thus, it appears that

Hurtado was released from jail because he had been granted amnesty,

not because the original trial and conviction were somehow

fraudulent. We certainly do not see how a grant of amnesty to

Hurtado several years after Castañeda left Perú should affect

Castañeda's original acquittal, nor do we think that it should

overcome the deference we usually give to the judgment of a foreign

tribunal. We therefore conclude that the BIA's finding that

Castañeda's trial was a fraud is not supported by any evidence,

much less substantial evidence.

Second, the BIA found that Castañeda "gave inconsistent

testimony regarding whether and when he was in radio contact with

the other patrols involved" in the Operation. According to the

BIA, Castañeda indicated that it was important to have radio

contact, but later specifically testified that he was not in

contact with other patrols on the day of the massacre. The BIA

also rejected Castañeda's argument that the Immigration Judge had

gone beyond the area of its expertise and "ventured into the realm

of Peruvian military tactics," because Castañeda's own testimony

made it "clear that radio contact was important for purposes of

coordination as well as efficiency and protection."
-27-

There are several problems with the BIA's reasoning.

First, while Castañeda testified early on that it was important to

have radio contact, his testimony indicates that he was referring

to radio contact with his base, not other patrols. Castañeda

testified that he only sometimes had contact with other patrols.

Further, Castañeda specifically testified about the coordination of

patrols for a mission:

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 heads of patrols.

In other words, Castañeda testified at the outset -- before he was

asked about whether he had any radio contact with other patrols the

day of the Operation -- (1) that it was important to have radio

contact with his base commander, (2) that in coordinating attacks,

the base commander would contact a battalion commander who

coordinated the various patrols, and (3) that he only sometimes had

direct contact with other patrols. We therefore see no

inconsistency in Castañeda's testimony that, while he had radio 

contact with his base commander during the Operation, he did not

have radio contact with the other patrols on the day in question.

It also appears from the record that the Immigration

Judge, and perhaps the BIA, simply found this testimony illogical.

Such a finding deserves less deference than other types of
 The dissent seizes on the both the Immigration Judge's and BIA's 26

use of the word "demeanor," noting in several places that Castañeda

was found not credible based on "observations" of his demeanor.

The implication of the dissent's emphasis on demeanor evidence is

that the Immigration Judge and BIA based the adverse credibility

finding on numerous problems with Castañeda's demeanor. For

example, the dissent notes that the Immigration Judge stated that

he had "carefully observed [Castañeda's] demeanor . . . and found

him vague, evasive, and non-responsive." However, as the dissent

also notes, a hearing officer who makes an adverse credibility

determination must support the determination with specific findings

in order to be accorded deference. Aguilar-Solís v. INS, 168 F.3d

565, 570 (1st Cir. 1999). The only specific finding that the

Immigration Judge made regarding Castañeda's demeanor -- as opposed

to the content of his testimony -- was that during testimony about

radio communication, Castañeda was "blinking his eyes in an

unusually rapid rate." We readily agree that demeanor evidence is

peculiarly within the purview of the trier of fact. However,

absent other evidence of a lack of credibility, we cannot affirm an

-28-

credibility findings because it is based on an analysis of the

testimony. Cordero-Trejo, 40 F.3d at 487. To the extent that the

BIA's finding rested on this ground, we would agree with

Castañeda's point that the BIA ventured outside the area of its

expertise and into the realm of Peruvian military tactics. As

such, we think the BIA's finding on this point is not supported by

substantial evidence.

Third, the BIA accorded weight to the Immigration Judge's

finding that during testimony about radio communication, Castañeda

was "blinking his eyes in an unusually rapid rate." While demeanor

evidence is peculiarly within the purview of the trier of fact, we

are not persuaded -- given the problems we have found with the

other aspects of the credibility findings -- that rapid blinking

alone is enough to find Castañeda not credible.26
adverse credibility finding based solely on a person's "blinking"

during a portion of their testimony. Such ambiguous indicia are

simply too thin to support such a conclusion.

-29-

Fourth, the BIA affirmed the Immigration Judge's finding

that Castañeda was evasive regarding the extent of human rights

violations committed by the Peruvian military. From our review of

the record, this finding mischaracterizes Castañeda's testimony.

He was not evasive when confronted with statistics from State

Department Reports. Castañeda readily admitted that he was aware

of instances in which the Peruvian army had engaged in

extrajudicial killings, disappearances, torture, and arbitrary

detentions. He simply disagreed with the numbers. Castañeda

consistently testified that abuses by the Peruvian army were not

the norm and that only a minority of the military engaged in such

practices. When confronted with the 1985 State Department Report

indicating that "[t]otal deaths related to antiterrorist operations

of the security forces are estimated by human rights groups as

being in the thousands between 1980-1985," Castañeda took issue

with those numbers. We note that, to the extent the government

offered the report as evidence that thousands of people had been

killed due to abuses by the Peruvian military, Castañeda appears to

have been at least correct. In a portion of the report the

government failed to read at the hearing, the State Department

noted that, out of these thousands of total deaths, "[p]recise

information is lacking on the number of civilian victims and their
 Further, the 1985 Report notes elsewhere that "[b]eginning in 27

1983, some members of the security forces responded to [the Shining

Path] with violence of their own, engaging in extrajudicial

killings, disappearances, torture, and arbitrary detentions. Most

of these violations occurred in 1983 and 1984 in the Ayacucho

Emergency Zone . . . . During 1985, reports of such abuses by

security forces dropped sharply . . . ." In 1983 and 1984,

Castañeda was serving in Tumbes, around 400 miles away from the

emergency zone. It is therefore likely that he heard only

occasional reports of abuses occurring in the emergency zone.

Further, as indicated by the State Department, by the time he was

transferred into the emergency zone in 1985, the number of abuses

decreased sharply. This further bol a. Whether sters his

testimony that he only rarely heard of abuses by the military.

-30-

identities (terrorist or non-terrorist) as well as the identity of

their assailants (terrorists, security forces, or peasant selfdefense forces)." In other words, the "thousands" of deaths that

resulted from antiterrorist operations included deaths of

terrorists, as well as civilians killed by terrorists and other

peasant forces. Therefore, it is quite likely that there were not

thousands of deaths related to abuses by the Peruvian military, and

in that sense, Castañeda was correct.27

Having considered the entire record, we do not think that

substantial evidence supports the BIA's determination that

Castañeda was evasive on the issue of human rights abuses by the

military. He testified consistently throughout the hearings before

the Immigration Judge, and although he disagreed at times with the

government's assertions, this can hardly be considered evasive

testimony. We therefore find that the BIA's finding on this issue

is not supported by substantial evidence.
-31-

The fifth reason for the BIA's adverse credibility

finding was that Castañeda allegedly was "not forthcoming about the

judgment entered against" Hurtado. This, again, is a

mischaracterization of Castañeda's testimony. There are several

aspects of Castañeda's testimony on the subject of Hurtado, and we

deal with each in turn.

a. Whether Hurtado was imprisoned

During cross-examination, the government's attorney asked

Castañeda what happened to Hurtado. Castañeda replied, "[a]fter

[Hurtado] admitted [to his involvement in the massacre] and the

court found him guilty, he was placed in a military prison." This

statement is borne out by the record; all of the documents indicate

that Hurtado was found guilty and placed in prison for a period of

time.

b. Hurtado's conviction

Later on in questioning, the following exchange occurred:

Q. Sir, my question is, what was [Hurtado]

found guilty of?

A. He was found guilty of participating in

the assassination of those village people.

Q. So he was convicted of murder?

A. Yes. That's what I know.

Q. Was he sentenced to prison?

A. Yes. He was recluded in a military

prison.

Q. Do you know what his sentence was?
-32-

A. I do not know the amount of years.

The latter part of Castañeda's answer is supported by the record,

as the 1999 State Department Report indicates that Hurtado was not

finally sentenced until 1993, two years after Castañeda left Perú.

It is perfectly plausible that Castañeda did not know the length of

Hurtado's sentence, since Hurtado had not been sentenced when

Castañeda and his family left Perú.

Regarding the first part of Castañeda's response, the

government later asked Castañeda if Hurtado was convicted only of

abuse of authority. Castañeda stated that "[c]learly, I don't

know. What I manifested what I know is that [t]he court found him

guilty of that murder and I'm not an expert on law, but maybe the

murder is instead of the disobedience, sorry, the abuse of

authority." On appeal, the government argues that Castañeda

testified inconsistently about what crimes Hurtado was convicted

of. This is incorrect, for two reasons. First, Castañeda

testified that Hurtado was convicted of killing the villagers. He

referred to the killings as "that murder" and an "assassination."

It is obvious that, in Castañeda's untrained legal mind, Hurtado

murdered civilians, and this is what he was convicted of. Second,

Hurtado was in fact charged with murder, and, at the time of

Castañeda's acquittal, the case against Hurtado was still

proceeding. The document confirming Castañeda's acquittal

specifically states that the case would continue against Hurtado
-33-

"for crimes against life, body, and health, first degree murder."

Hurtado, however, was not sentenced until 1993, and was sentenced

only for abuse of authority. This again occurred after Castañeda

had left Perú. We see no reason to find that Castañeda was not

credible as to his knowledge and participation in the Operation

simply because he thought Hurtado was convicted of murder and not

abuse of authority, when (1) Hurtado was originally charged with

murder, (2) still faced a murder charge at the time of Castañeda's

acquittal, and (3) was not sentenced until two years after

Castañeda had left the country.

c. Whether Hurtado was discharged or promoted

When asked if Hurtado was discharged from the army,

Castañeda testified that he thought so, since that was the usual

military practice for an officer in such a situation, but did not

know for sure. This apparently was not good enough for the

government attorney, who commented that Castañeda seemed to not

know many details about what happened to Hurtado given the

significance the court martial had on his life. Castañeda replied

You're right. That is a very important -- in

my life. What I know is that that officer

acted outside the rules that are breach of the

army. He was found guilty . . . . I did not

try to find out what privileges he might have

had and what had happened to his life.

In other words, Castañeda testified that he knew Hurtado went to

prison, thought he was discharged from the army, and did not try to

find out what happened to Hurtado afterwards. Instead, like many
 We also note that Castañeda's knowledge, or lack thereof, 28

regarding Hurtado is a red herring. Castañeda was denied asylum

because of what he allegedly did, not because of what Hurtado did.

As we previously noted, Castañeda's case is based on his

disassociation from Hurtado's actions, actions over which Castañeda

had no control or knowledge.

-34-

people would, he tried to resume his normal life. We see nothing

to indicate that Castañeda was not forthcoming about Hurtado's

fate.28

During cross examination, the government also introduced

a 1995 State Department Report indicating that there were reports

that Hurtado had reappeared on active duty and been promoted to

captain. When asked about this, Castañeda testified "I did not

know that." When asked if it would surprise him to know that

Hurtado was promoted after his conviction and sentence, Castañeda

answered that it would. The record supports Castañeda's testimony.

First, the 1999 State Department Report indicates that "the

Military Code states that any conviction that entails a sentence of

2 or more years' imprisonment must result in the officer's

immediate discharge." Thus, Castañeda was correct in his testimony

that the usual practice was for an officer in Hurtado's situation

to be discharged. The 1999 Report also indicates that Hurtado was

not released from prison until 1995 under the general amnesty, four

years after Castañeda had left Perú. It therefore is entirely

consistent with Castañeda's testimony that he had no idea Hurtado

had not been discharged and had in fact been released from prison
-35-

and promoted, because when Castañeda left Perú, Hurtado's case was

still ongoing and he was in prison. Again, we find no basis for

the adverse credibility finding.

We also wish to emphasize several key pieces of evidence

that supported Castañeda's story. First, as we noted above, the

1999 State Department report indicates that Castañeda was acquitted

of any involvement in the massacre. Second, the report from the

Human Rights Commission specifically found that Castañeda's patrol

was "not involved in any confrontations with fugitive civilians."

This is an extremely important piece of evidence because it goes to

the heart of the issue: the extent of Castañeda's participation in

the massacre of the villagers. Further, while the Commission

report mentioned Castañeda's name twice, it did so only in

reference to the fact that he led one of the non-infringing

patrols. The report clearly holds Hurtado to blame for the

massacre. It mentions Hurtado's testimony in depth and also refers

to him as "the perpetrator" -- as opposed to "one of the

perpetrators" -- of the massacre. The 1995 and 1999 State

Department Reports single out Hurtado and his patrol as the ones

responsible for the massacre. For example, the 1999 State

Department Report states that "Hurtado commanded the army unit

responsible for the 1985 Accomarca massacre." Neither Castañeda

nor any of the other patrol leaders' names are ever mentioned. In

our view the record, when viewed as a whole, indicates that Hurtado
The fact that there was a conviction in the case should further 29

boost Castañeda's credibility.

-36-

and his patrol were responsible for the massacre, and that

Castañeda's patrol, which was three to five miles distant, took no

part in it. After a trial by the military court, Hurtado -- the

man responsible -- was convicted and the charges against Castañeda 29

were dismissed. The fact that Hurtado was later released due to a

general declaration of amnesty by the President and Congress should

not affect the legitimacy of the original trial and conviction, and

it especially should not be held against Castañeda.

In sum, the evidence indicates that Castañeda credibly

testified that (1) he never had any contact with any villagers

during the Operation, (2) he was acquitted of any involvement in

the massacre by a duly constituted body of the Peruvian military,

which was given jurisdiction over his case by the Peruvian Supreme

Court, and (3) Hurtado, the leader of the Links 7 patrol, was the

one found responsible for the massacre by a military court. This

evidence, combined with the problems we have discussed related to

the reasons relied upon by the BIA in making its adverse

credibility finding, sound the death knell for that finding.

Substantial evidence does not support a finding that Castañeda was

not credible regarding his involvement in the massacre, and we

therefore reverse the BIA's credibility determination.
-37-

2. The "Ordinary Remand Rule"

The dissent, invoking the "ordinary remand rule" argues

that we must remand the case to the BIA for further proceedings.

We reject the dissent's reasoning for several reasons which we

briefly explain.

In INS v. Ventura, 537 U.S. 12 (2002), a Supreme Court

case invoked by the dissent, the Court reversed a judgment of the

Ninth Circuit. The Ninth Circuit had reversed the BIA based on a

"changed circumstances" argument that the government had made to an

Immigration Judge, but which the BIA had never addressed. On

appeal, the Supreme Court stated that, under the ordinary remand

rule, "[a] court of appeals is not generally empowered to conduct

a de novo inquiry into the matter being reviewed and to reach its

own conclusions based on such an inquiry. Rather, the proper

course, except in rare circumstances, is to remand to the agency

for additional investigation or explanation." Id. at 16 (internal

citations and quotation marks omitted). The Court then reversed,

stating that the Ninth Circuit had erred by deciding the "changed

circumstances" issue "without giving the BIA the opportunity to

address the matter in the first instance." Id. at 17.

The Supreme Court has also recently applied the ordinary

remand rule in Gonzáles v. Thomas, __ U.S. __, 126 S. Ct. 1613

(2006). In Thomas, the Immigration Judge denied a petitioner's

asylum claim without considering her alleged fear of persecution
-38-

based on membership in a particular social group. The BIA then

summarily affirmed. The Ninth Circuit reversed, finding that

Thomas was in fact persecuted as a member of a social group even

though the BIA had not yet addressed the issue. On appeal, the

Supreme Court reversed and remanded to the BIA for consideration of

the issue, stating that "[t]he agency has not yet considered

whether [petitioner's father-in-law's] family presents the kind of

kinship ties that constitute a particular social group." Id., 126

S. Ct. at 1615.

While we do not quarrel with the general legal

proposition regarding the ordinary remand rule advanced by the

dissent and found in Thomas and Ventura, we believe that the facts

of this case take it outside of the purview of that rule. In both

Thomas and Ventura, the court of appeals considered an issue that

the BIA never addressed in the first instance. Here, by contrast,

the Immigration Judge and BIA both thoroughly considered the

credibility issue based on a fully developed record. In reversing

the credibility determination, we are not conducting a de novo

review of the record, but rather are reviewing the reasons set

forth by the BIA in light of the record. Under the ordinary remand

rule, while we could remand the case for further factfinding, we

are not required to do so since the BIA has already thoroughly
 The dissent's analysis would require us to remand whenever we 30

found an error in the BIA's factual decisions, even if the BIA had

clearly decided the issue based on a fully developed record. This

would transform the "ordinary remand" rule into an "automatic

remand" rule, something we do not believe is required by either the

Supreme Court or our own precedents.

-39-

"evaluat[ed] the evidence" and brought "its expertise to bear upon

the matter." Ventura, 537 U.S. at 16.30

We note that this approach is in accord with other

circuits that have interpreted Ventura and Thomas. For example,

the Seventh Circuit has stated that "we do not agree that Ventura

stands for the broad proposition that a court of appeals must

remand a case for additional investigation or explanation once an

error is identified." Ghebremedhin v. Ashcroft, 392 F.3d 241, 243

(7th Cir. 2004). Several other circuits have adopted a similar

line of reasoning. See, e.g., Almaghzar v. Gonzáles, 450 F.3d

415, 423 n.11 (9th Cir. 2006) ("Neither Ventura nor Thomas requires

us to remand an issue to the agency when the agency has already

considered the issue."); Zhao v. Gonzáles, 404 F.3d 295, 311 (5th

Cir. 2005) (stating that the court was not required to remand under

the ordinary remand rule because the BIA had already decided the

issue).

The dissent also argues that our decision to reverse

violates the law of our own circuit. However, the cases cited by

the dissent are clearly distinguishable. For example, the dissent

relies on Gailius v. INS, 147 F.3d 34 (1st Cir. 1998) and Cordero-
-40-

Trejo v. INS, 40 F.3d 482 (1st Cir. 1994). In Gailius, the

Immigration Judge did not address whether alleged threats had

occurred as the petitioner described because it found that a

reasonable person in the petitioner's situation would not fear

persecution on account of such threats. We disagreed with this

latter finding and stated that "[i]f the threats are real . . .

Gailius may well have had a well-founded fear." Gailius, 147 F.3d

at 44. We remanded so that the BIA -- which ignored the evidence

of the threats based on reasons not having to do with credibility

-- could explain why it found the threats not credible. One of our

main reasons for remand was that "the IJ did not make a

determination of the credibility and authenticity of Gailius'

evidence of threats." Id. at 47. We have a different case here,

because the IJ and BIA made specific credibility findings; those

findings simply are not supported by substantial evidence. In

Cordero-Trejo, the BIA first found the petitioner not credible,

then made an alternative holding that the petitioner was ineligible

for asylum based on three reasons. Cordero-Trejo, 40 F.3d at 485.

We found two of these reasons invalid under the INA, and the third

depended on the adverse credibility finding, which we found was not

supported by substantial evidence. Id. at 485, 488. We also found

that the BIA failed to consider certain general country condition

evidence offered by the petitioner. Id. at 485. In reversing the

adverse credibility finding, we noted that "it is difficult to
 The dissent also cites Seavy v. Barnhart, 276 F.3d 1 (1st Cir. 31

2001). However, that case actually supports our decision to

reverse. In Seavy, which involved an agency's denial of social

security benefits, we remanded to the agency for further

consideration. However, we noted that "if the evidence and law

compelled one conclusion or the other, then [we] could order an

award of benefits or affirm a denial of benefits." Id. at 11.

Here, under substantial evidence review, we may reverse the

decision of the BIA only if we are compelled by the evidence. In

deciding that the BIA's determination is not supported by

substantial evidence, we are in reality stating that the evidence

compels a contrary conclusion. Thus, under the language of Seavy,

we may simply reverse the agency's decision.

-41-

ascertain from what sort of evidence the IJ drew his credibility

conclusions." Id. at 491. Given this fact, along with the fact

that the Immigration Judge and BIA had failed to address any of the

petitioner's documentary evidence, we remanded. Castañeda's case

is obviously distinguishable because it is clear what evidence the

Immigration Judge and BIA relied on in drawing the adverse

credibility determination, and the BIA did not simply ignore all of

Castañeda's documentary evidence.31

C. Whether Castañeda Was a Persecutor

As we noted above, the Immigration Judge also found that,

even assuming Castañeda had testified credibly -- i.e., even

assuming that he and his patrol were several miles away from the

village during the Operation, did not encounter a single villager,

and did not know what was happening in the village or have any

control over what was taking place there -- he still "assisted or

otherwise participated" in the persecution of others.

Specifically, the Immigration Judge concluded that 
 The dissent argues that this portion of the BIA's opinion was 32

not an alternate holding and that we should remand to the BIA so

that it can address in the first instance whether Castañeda's

actions amounted to assistance or participation in persecution. In

essence, the dissent believes that the BIA did not assume the

credibility of all of Castañeda's testimony and that the quoted

portion of the BIA's opinion does not adequately explain the BIA's

reasoning. It bases this argument in part on the BIA's statement

that "even if [Castañeda] testified credibly that he did not harm

or execute anyone on August 8, 1985," (emphasis supplied), he

assisted or otherwise participated in persecution.

We disagree with the dissent's characterization of the ruling

below. The context of the BIA's statement, especially its citation

to, and affirmation of, a portion of the Immigration Judge's

decision where the Immigration Judge explicitly makes an alternate

holding, as well as its citation to In re Rodríguez-Majano, one of

-42-

the objective effect of [Castañeda's]

participation in the Accomarca operation would

have been to aid even in some small measure in

the confinement of villagers to the combat

area and therefore aid even in some small

measure with the execution and murder and rape

of those unarmed men, women, and children.

The BIA, citing to the above portion of the Immigration Judge's

opinion as well as In re Rodríguez-Majano, 19 I. & N. Dec. 811 (BIA

1988), affirmed this finding, stating that 

we find no error in the Immigration Judge's

conclusion that [Castañeda] failed to meet his

burden of proving that he did not assist or

otherwise participate in the persecution of

villagers in Accomarca based on their

political opinion; even if [Castañeda]

testified credibly that he did not harm or

execute anyone on August 8, 1985, there is

substantial evidence to support the

Immigration Judge's conclusion that

[Castañeda] did aid in the persecution of

others by helping to confine them, inasmuch as

his patrol was charged with blocking an

escape route for the villagers and people

located in the emergency zone.32
the BIA's seminal opinions on the issue of whether an alien

assisted or participated in persecution, leaves us with no doubt

the BIA was making an alternate holding. This alternate holding

was that, even if Castañeda were credible, his actions constituted

assistance or participation in persecution. Further, although

brief, the BIA's reasoning is crystal clear: it believed that the

act of blocking a path during the Operation had the objective

effect of assisting in the massacre by helping to confine the

villagers. Given these considerations, we are convinced that this

alternate holding is ripe for review. See Xu v. Gonzáles, 424 F.3d

45, 49 (1st Cir. 2005) (noting that "[w]hen considering . . . the

clarity of an administrative decision . . ., we are not blind to

the context in which the decision is made or oblivious of the

record on which it is based"). The fact that the BIA has already

decided the issue also takes this case outside of the dissent's

arguments about the ordinary remand rule, which we have already

addressed above.

-43-

An alien is ineligible for asylum or withholding of

removal if he or she "ordered, incited, assisted, or otherwise

participated in the persecution of an individual because of the

individual's race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C. §§ 1158

(b)(2)(A)(i), 1231(b)(3)(B)(i). In the instant case, it is

undisputed that Castañeda did not order or incite the persecution

of anyone. It is also undisputed that the villagers massacred

during the Operation were killed because of their political

opinion, i.e., their support of or suspected involvement with the

Shining Path. Therefore, the only issue is whether Castañeda

"assisted or otherwise participated in" the persecution of the

villagers.

Castañeda's main argument is that he could not have

"assisted or otherwise participated in" persecution because the
 Castañeda also briefly argues that his actions were directed 33

toward the defense of the government, and therefore any harm that

resulted from such behavior would not amount to persecution. See

In re Rodríguez-Majano, 19 I. & N. Dec. 811, 815 (BIA 1988)

(stating that "harm which may result incidentally from behavior

directed at . . . the defense of [a] government against an

opponent" does not amount to persecution.). However, the massacre

of the villagers during the Operation went well beyond that which

was incidental to the defense of the Peruvian government. See,

e.g., Miranda Alvarado v. Gonzáles, No. 03-70165, 2006 WL 1512077,

at *14 (9th Cir. June 2, 2006) (stating that "torturing individuals

selected for their affiliation with an opposition group is not

inherent in armed conflict, any more than is 'ethnic cleansing'").

Therefore, if Castañeda assisted or otherwise participated in the

massacre, he should be barred as a persecutor.

 This is the course taken by most of the circuit courts that have 34

considered issues similar to the one before us today. See, e.g.,

Miranda Alvarado, 2006 WL 1512077, at *8-9; Xie v. INS, 434 F.3d

136, 140-42 (2d Cir. 2006); Hernández v. Reno, 258 F.3d 806, 812-13

(8th Cir. 2001).

-44-

massacre took place without his control and awareness, and because

he had no connection to the massacre beyond being a member of the

military at the time it occurred. The government, following the 33

reasoning of the BIA, argues that Castañeda's actions in blocking

an escape path furthered the massacre and therefore demands a

finding that he assisted or otherwise participated in persecution.

After careful review of the record and various cases interpreting

the phrase "assisted or otherwise participated in" the persecution

of others, we are compelled to reverse the BIA's decision in this

respect.

We begin our discussion by looking to the Supreme Court's

decision in Fedorenko v. United States, 449 U.S. 490 (1981). In 34

Fedorenko, the Court interpreted a provision of the Displaced
-45-

Persons Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 ("DPA"),

which excluded from the definition of "displaced persons"

individuals who had "assisted the enemy in persecution of

civil[ians]' or had 'voluntarily assisted the enemy forces . . . in

their operations . . ." Fedorenko, 449 U.S. at 495 (internal

quotation marks omitted) (alteration in original).

Fedorenko was admitted to the United States as a

displaced person following World War II after stating in his

application that he had been a farmer in Poland from 1937 until

March 1942, then had been deported to Germany and forced to work in

a factory until the end of the war. In reality, Fedorenko was a

Russian soldier who had been captured by the German army and forced

to serve as a guard at the Nazi concentration camp in Treblinka,

Poland, where several hundred thousand Jewish civilians were

murdered. When the falsehoods on his application were discovered,

the government filed an action to have Fedorenko's citizenship

revoked. At the resulting trial, Fedorenko admitted to his service

at Treblinka and admitted that he knew that thousands of Jewish

civilians were being murdered there, but claimed that his service

as a guard was involuntary and that he did not have any personal

involvement in the atrocities committed. Fedorenko also admitted

that he had "shot in the general direction of escaping inmates"

during a prison uprising, id. at 500, "that the Russian armed

guards significantly outnumbered the German soldiers at the camp,
-46-

that he was paid a stipend and received a good service stripe from

the Germans, and that he was allowed to leave the camp regularly

but never tried to escape." Id.

The Court found that Fedorenko had assisted in the

persecution of civilians. In doing so, the Court rejected

Fedorenko's argument that he did not assist in any persecution

because his actions were involuntary. It noted that the DPA

incorporated the definition of "displaced person" contained in the

Constitution of the International Refugee Organization of the

United Nations ("IRO Constitution"). Id. at 496 n.3. While

section 2(a) of the IRO Constitution provided that persons who

"assisted the enemy in persecuting civil populations" were excluded

from the definition of "displaced persons," section 2(b) of the IRO

Constitution excluded only those persons who "voluntarily assisted

the enemy forces . . . in their operations." Id. at 496 n.4. The

Court found that "[u]nder traditional principles of statutory

construction, the deliberate omission of the word 'voluntary' from

§ 2(a) compels the conclusion that the statute made all those who

assisted in the persecution of civilians ineligible for visas."

Id. at 512 (emphasis in original).

After rejecting Fedorenko's involuntariness defense, the

Court found that his actions constituted assistance in persecution.

In an oft-cited footnote, the Court described a continuum of
-47-

conduct along which an individual's actions should be considered in

determining whether he or she assisted in persecution:

Thus, an individual who did no more than cut

the hair of female inmates before they were

executed cannot be found to have assisted in

the persecution of civilians. On the other

hand, there can be no question that a guard

who was issued a uniform and armed with a

rifle and a pistol, who was paid a stipend and

was regularly allowed to leave the

concentration camp to visit a nearby village,

and who admitted to shooting at escaping

inmates on orders from the commandant of the

camp, fits within the statutory language about

persons who assisted in the persecution of

civilians. Other cases may present more

difficult line-drawing problems but we need

decide only this case.

Id. at 512 n.34.

In cases involving "more difficult line-drawing

problems," courts have relied on Fedorenko's "continuum of conduct"

footnote and BIA precedent to determine whether an alien "assisted

or otherwise participated in" persecution. Following Fedorenko,

the BIA has held that 

The participation or assistance of an alien in

persecution need not be of his own volition to

bar him from relief. However, mere membership

in an organization, even one which engages in

persecution, is not sufficient to bar one from

relief, but only if one's action or inaction

furthers that persecution in some way. It is

the objective effect of an alien's actions

which is controlling.

Rodríguez-Majano, 19 I. & N. Dec. at 814-15; see also Miranda

Alvarado v. Gonzáles, No. 03-70165, 2006 WL 1512077, at *10 (9th

Cir. June 2, 2006); Higuit v. Gonzáles, 433 F.3d 417, 421 (4th Cir.
-48-

2006) (distinguishing between "'genuine assistance in persecution

and inconsequential association with persecutors'") (quoting Singh

v. Gonzáles, 417 F.3d 736, 739 (7th Cir. 2005)).

In determining the objective effects of an alien's

actions, a court must examine the totality of the alien's relevant

conduct. See Miranda Alvarado, 2006 WL 1512077, at *9; Xie v.

INS, 434 F.3d 136, 142-43 (2d Cir. 2006) (stating that the court

"focused on the nature of [the alien's] conduct as a whole"); In Re

A-H-, 23 I. & N. Dec. 774, 785 (A.G. 2005) (citing with approval

Hernández v. Reno, 258 F.3d 806, 814 (8th Cir. 2001) (stating that

"[t]he Board should have analyzed all the pertinent evidence

related to [the alien's] conduct")). Further, some degree of

individual culpability is necessary in order for an alien to be

held responsible for assisting or participating in persecution.

See Miranda Alvarado, 2006 WL 1512077, at *10 (stating that

"determining whether a petitioner 'assisted in persecution'

requires a particularized evaluation of both personal involvement

and purposeful assistance in order to ascertain culpability");

Higuit, 433 F.3d at 421 (finding that "there can be no dispute over

Higuit's personal culpability in this case"); Hernández, 258 F.3d

at 814 (stating that a court should "determine whether the

individual should be held personally culpable for his conduct").

Moreover, several courts have explicitly required that a

petitioner's actions have direct (as opposed to tangential)
 We note that the courts have been in less agreement regarding 35

the subjective aspects of an alien's actions. In Fedorenko, the

Supreme Court held that, in the context of the DPA, the

voluntariness of an alien's actions was irrelevant. 449 U.S. at

512-13. Some courts have taken Fedorenko's holding and applied it

to the INA. See Xie, 434 F.3d at 141-42 (stating that "we find it

unlikely that the phrase 'assisted in persecution' implicitly

includes a voluntariness requirement" in the INA but not the DPA

and noting that, in prior cases, the court had "deemed irrelevant

[the alien's] personal motivation or intent"); Singh, 417 F.3d at

740 (stating that an alien's personal motivation for his or her

actions is irrelevant); Bah v. Ashcroft, 341 F.3d 348, 351 (5th

Cir. 2003) (same); Rodríguez-Majano, 19 I. & N. Dec. at 815 ("It is

the objective effect of an alien's actions which is controlling.").

Other courts appear to be more willing to look into the alien's

intent. See Miranda Alvarado, 2006 WL 1512077, at *10 (stating

that a court should evaluate an alien's "purposeful assistance");

-49-

consequences for the victims or further the persecution in some

material way. See Miranda Alvarado, 2006 WL 1512077, at *10

(asking whether the petitioner's actions furthered the persecution

or were tangential to it, and finding that petitioner was barred

because, without his actions, the events leading to the persecution

could not have proceeded); Xie, 434 F.3d at 143 (stating that the

court would find assistance in persecution when the alien's conduct

"was active and had direct consequences for the victims," but would

not find assistance in persecution where the alien's conduct was

tangential and passive). Some courts have also considered the

repetitive nature of the alien's actions. See, e.g., Miranda

Alvarado, 2006 WL 1512077, at *11; Singh, 417 F.3d at 740 (in

discounting petitioner's "protestations of case-specific ignorance"

of persecutory acts, noting "the repetition of [petitioner's]

conduct over an extended period").35
Hernández, 258 F.3d at 814 (faulting the BIA for not considering

the alien's testimony that his actions were involuntary and

motivated by fear for his own life). We need not decide that issue

today because, even without considering the motivation or intent

behind Castañeda's actions, we do not think his actions had any

objective effect on the persecution of the villagers.

We again emphasize that there is no evidence in the record to 36

support the dissent's intimation, see footnote 3, to the effect

that the massacre was pre-planned or that Castañeda had prior

knowledge that it would take place.

-50-

Turning now to Castañeda's particular case, we conclude

that substantial evidence does not support the BIA's determination

that he "assisted or otherwise participated in" persecution.

Taking Castañeda's testimony as true, we are presented with the

following set of facts: (1) the uncontradicted evidence is that the

purpose of the Operation was directed at the Shining Path

guerrillas in the village, not civilians; (2) Castañeda and his 36

men were hidden in the jungle three to five miles from the village

and about thirty meters from the path they were guarding; (3)

during the time they were there, they did not see or hear anyone,

nor did they fire any shots; (4) they never entered the village and

never directly or indirectly participated in the killings of the

villagers, which was carried out by a rogue patrol led by Hurtado

in a previously unplanned manner; (5) Castañeda and his men lacked

any control or authority over this rogue patrol; and (6) they did

not know what occurred in the village during the Operation.

Given these facts, and considering the totality of

relevant conduct, we are compelled to conclude that Castañeda did
-51-

not assist or otherwise participate in the persecution of the

villagers. First, Castañeda's personal involvement in the murder

of the villagers was non-existent. Compare Miranda Alvarado, 441

F.3d at 762 (noting that petitioner, who served as an interpreter

for the Peruvian army while officer tortured suspected Shining Path

member, was personally involved in the persecution because he was

present and active during the interrogation); Singh, 417 F.3d at

740 (finding that the petitioner had assisted or otherwise

participated in persecution where the petitioner "took innocent

Sikhs into custody . . . and transported them to the police

station, where he knew they would be subjected to unjustified

physical abuse[,]" and "participated in raids on the homes of

innocent Sikh families"). Second, Castañeda's conduct -- which

amounted to hiding in the jungle for several hours three to five

miles away from the scene of the massacre -- can hardly be

characterized as "active and ha[ving] direct consequences for the

victims" of the persecution, Xie, 434 F.3d at 143, especially since

no one ever came down the path Castañeda's patrol was watching.

Instead, Castañeda's actions are better characterized as irrelevant

"to the acts of oppression and passive in nature." Id. In a

similar vein, Castañeda's actions simply had no "objective effect"

on the persecution because Castañeda and his men never saw anyone
 The dissent, citing Naujalis v. INS, 240 F.3d 642 (7th Cir. 37

2001), argues that our reading of the "objective effect" line of

cases is erroneous. We do not agree with the holding in Naujalis.

Furthermore, the Seventh Circuit's opinion in Singh v. Gonzáles,

417 F.3d 736, (7th Cir. 2005), has recently clarified the holding

in Naujalis. In Singh, the alien was a citizen of India who worked

for the police department in India's Pujab. The court noted that,

in the context of Nazi guards and the DPA (which is what Naujalis

involved), "membership in the ranks of Nazi guards is sufficient to

constitute assistance in prohibited persecution." Singh, 417 F.3d

at 739. It then went on to state that the DPA line of cases was

not fully compatible with the INA in general and Singh's case in

particular because "[u]nlike Nazi concentration camps, whose

complete existence was premised upon the persecution of innocent

civilians, local Punjabi police departments served traditional,

legitimate law enforcement purposes and did not exclusively engage

in the persecution of innocent [people]." Id. Therefore, the

court stated, in Singh's case "a distinction must be made between

genuine assistance in persecution and inconsequential association

with persecutors." Id. The court then went on to conduct an

analysis similar to the one we have conducted. Id. at 739-741.

In sum, the dissent's reliance on Naujalis is misplaced

because Naujalis involved a special rule applicable "exclusively

. . . to Nazis from the period of 1933 to 1945." Id. at 739. Had

Naujalis been the member of an organization which did not

exclusively engage in persecution -- as is the case with Castañeda

and his membership in the Peruvian army -- the Seventh Circuit's

analysis would have been entirely different. Given the Seventh

Circuit's explanation of Naujalis in Singh, along with the other

cases that have construed the relevant provisions of the INA, as

opposed to the DPA, we are convinced that our approach is the

correct one.

 As evidenced by the facts that the massacre occurred even though 38

one of the blocking controls never reached its position and that no

persons came down the path Castañeda's men were watching.

-52-

or fired any shots. In other words, the massacre of the villagers 37

during the Operation would have occurred regardless of whether

Castañeda ever reached his assigned position, and Castañeda did 38

nothing to facilitate the massacre in any way because his patrol
 We find that what might have occurred had a fleeing villager 39

come down the path to be absolutely irrelevant and speculative,

since Castañeda was there to intercept fleeing members of the

Shining Path, not civilians. If anything, the cases make clear

that we are to concern ourselves only with what a petitioner

actually did, not what he might have done. See, e.g., RodríguezMajano, 19 I. & N. Dec. at 814-15. Castañeda credibly testified --

and this testimony is supported by the Human Rights Commission --

that no one came down the path.

-53-

never encountered anyone. Cf. Miranda Alvarado, 2006 WL 1512077, 39

at *10 (finding that, without the petitioner's actions, the

persecution would not have gone forward). Add to these facts

Castañeda's lack of awareness of what was happening in the village,

and we simply do not see how his actions rise to the level of

culpability necessary to find that he assisted or otherwise

participated in the persecution of the villagers. We therefore

find that substantial evidence does not support the BIA's

determination in this regard.

D. The Dissent

This court has never condoned, nor will it ever condone,

the massacre of innocent civilians by the military in the course of

its war-related activities. See United States v. Zajanckauskas,

441 F.3d 32 (1st Cir. 2006). However, we also cannot tolerate a

finding that amounts to a conclusion that someone is guilty of such

conduct by remote association. The findings of the Immigration

Judge and the BIA amount to just that: a conclusion of guilt by

remote association. These findings fly against the evidence that

is relevant to a determination of whether Castañeda was credible
-54-

and to whether he was in any way responsible for the atrocities

committed by a different Peruvian army unit, operating

independently of his command, several miles away from his location,

with nothing but mountains and jungle in between.

Because the findings below -- which we have already

addressed as unsupported or unsupportable -- are clothed in the

presumably impervious mantle of credibility findings, and

considering the assertions in the dissent that follows, it is

appropriate that we conclude by re-emphasizing certain uncontested

evidence which goes both to the issue of Castañeda's credibility

and to the question of his responsibility for the heinous acts

committed beyond his control or participation.

First, it is undisputed that the patrol which committed

the massacre of the villagers was several miles away and acted

independently from Castañeda, whose assigned duty was to watch a

trail to intercept Shining Path guerrillas, not civilians. The

dissent's phrasing of the facts, that "army units fired and threw

grenades into the houses and killed many women and children," and

that Castañeda "headed one of four army units involved in the

military operation during which this massacre occurred" is

unfortunate because it gives the impression that the military

operation was one that included, as a pre-planned goal, the

premeditated killing of civilians. In fact, there is absolutely no

evidence to this effect. This unwarranted implication in the
-55-

quoted portion of the dissent is re-enforced by the phrasing that

follows: "His patrol was assigned to and did block a possible

escape route from the village, but there is no evidence that he was

in the village during the massacre or that he personally killed

anyone." This quote omits the rather important fact that Castañeda

was several miles away from the village, that there is no evidence

that he ever entered the village before, during or after the

massacre, or that anyone, civilian or otherwise, ever went down the

trail he was guarding.

Second, as we just noted, it is undisputed that nothing

happened on Castañeda's watch. It is undisputed that no one came

down the trail -- no Shining Path guerrillas, no civilians, no one.

Thus, neither Castañeda nor anyone under his command engaged in any

action against innocent civilians.

Third, there is not a scintilla of evidence that

Castañeda was aware, either before or during the massacre, that

these acts would be committed or were being committed by others

over which he had no control and were in fact not his subordinates.

The issue regarding radio communication during the Operation is

simply another red herring, for several reasons. First, there is

no affirmative evidence of any communication between Castañeda and

the other patrols during the Operation. Second, radio silence

during operations is not an unheard of military tactic. In any

event, the only evidence is the assertion by the only person there,
 Other non-adjudicative bodies, such as the Human Rights 40

Commission, also placed the blame elsewhere.

-56-

Castañeda, that there was no communication between the patrols.

The conclusions to the contrary, used by the Immigration Judge and

the BIA as a basis for their credibility conclusions, are mere

speculation unsupported by evidence, especially given Castañeda's

prior testimony about communication up the chain of command.

Third, the issue regarding radio communication is an irrelevant

distraction from the main issue: Castañeda's culpability for the

actions of Hurtado's rogue patrol, over which it is undisputed that

Castañeda lacked control or command.

Finally, Castañeda was acquitted by a Peruvian military

court for his involvement in the Operation. This is the same

military court that found the captain in charge of the rogue

patrol, Hurtado, guilty of perpetrating the massacre against the

civilians. Notwithstanding these undisputed facts, and that such

tribunals are the ones that normally deal with crimes allegedly

committed by the military in the course of military operations, the

Immigration Judge and the BIA latched on to irrelevant issues to

detract from the most central, irrefutable fact: that the only

adjudicative body to pass upon this unfortunate incident placed the

blame for these actions on someone other than Castañeda.40
-57-

III.

Because we find that substantial evidence does not

support the BIA's determinations that Castañeda was not credible

and assisted or otherwise participated in persecution, we grant the

petition for review, reverse the decision of the BIA, and remand

the case so that an Immigration Judge may consider the merits of

Castañeda's asylum and withholding of removal applications.

Castañeda's asylum request merits serious, unbiased

consideration. As we pointed out earlier in this opinion, the

Shining Path have been catalogued by our government as a ruthless

terrorist organization. Castañeda's unchallenged testimony is that

Shining Path members threatened him on numerous occasions and

attempted to murder him in 1986. Furthermore, and in keeping with

its record of indiscriminate violence, see, e.g., Philip Bennett,

Pol Pot in Perú, New Republic, January 28, 1985, at 16, Shining

Path members tried to kidnap Castañeda's daughter in 1989. The

group also murdered Castañeda's neighbor and military colleague in

front of the man's family in 1990. Thereafter, Castañeda sought

refuge for himself and his family from these terrorist thugs by

leaving his native country.

The BIA's decision cannot be sustained on appeal.

Reversed and remanded for actions consistent with this

opinion.

"Dissenting opinion follows"
-58-

LYNCH, Circuit Judge, dissenting. I respectfully dissent

and do so with regret. But the majority opinion is contrary to

decisions of the Supreme Court and this court, and the errors are

of exceptional importance and potentially of national significance.

Cf. Fed. R. App. P. 35.

I.

I summarize my view of the case and the reasons I am

compelled to dissent before going on to a fuller explanation.

According to an investigation by a Commission of the

Senate of Perú, in August 1985, some sixty-nine innocent villagers

in Llocllapampa, Perú were massacred by units of the Peruvian army

in its war with Shining Path guerrillas. The village's civilian

inhabitants were herded into two homes; the army units fired and

threw grenades into the houses and killed many women and children

in the slaughter. The investigation concluded the operation

amounted to genocide.

Lieutenant Castañeda, petitioner here, headed one of four

army units involved in the military operation during which this

massacre occurred. It is disputed whether he knew about the

massacre before or while it took place. His patrol was assigned to

and did block a possible escape route from the village, but there

is no evidence that he was in the village during the massacre or

that he personally killed anyone. He acknowledged that he was

briefed on the operation beforehand and that all units during the
-59-

operation had radios capable of radio contact, but he claimed that

he had no radio contact with the units in the village that day and

did not find out about the massacre until weeks later.

Finding himself a potential target in the wake of his

role in the operation, Castañeda came with his family to the United

States on tourist visas in 1991, overstayed, and in 1993 applied

for asylum and withholding of removal. By statute, an alien is not

eligible for asylum and 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)

(emphasis added); see also id. § 1231(b)(3)(B)(i).

It is undisputed that the government met its burden of

making a prima facie case that Castañeda had "assisted or otherwise

participated in the persecution" and that the burden of showing he

had not done so has shifted to Castañeda. 8 C.F.R. §§ 1208.13

(c)(2)(ii), 1208.16(d)(2). It is also undisputed that the

persecution was on account of one of the enumerated grounds in the

statute.

The Board of Immigration Appeals ("BIA"), the Immigration

Judge ("IJ"), and the initial asylum interviewing officer each

found Castañeda had not met his burden because he was not credible.

He was found not credible based both on observations of his
 Thus, for example, even if it might be true that translation 41

difficulties could explain some of the problems with Castañeda's

testimony -- a point not raised by Castañeda himself -- the issues

raised by the BIA and the IJ are such that it was entirely

reasonable to conclude otherwise. Moreover, those who actually

heard Castañeda's testimony are in a much better position than this

court to weigh the effects of any translation difficulties.

Similarly, the majority's assertions that Castañeda misunderstood

some questions or was interrupted by the judge might be possible

readings of the record, but the record certainly does not compel

such conclusions, and we are in a poor position to judge such

matters from the transcript alone.

-60-

demeanor and on the content of his testimony. The law requires

courts to give great deference to those lack of credibility

determinations, especially those based on direct observations of

the alien's demeanor. The majority fails to accord the appropriate

deference to the BIA and, rather than determining whether the

record could reasonably be read to support the BIA, determines

whether the record could reasonably be read to support Castañeda.41

This is the wrong perspective, and having taken the wrong

perspective, the majority reaches the wrong conclusion in holding

that substantial evidence does not support the BIA's finding that

Castañeda was not credible.

Having incorrectly applied the standard of review, the

majority further errs in refusing to remand to the BIA to

reconsider its determinations in light of the supposed failures in

its reasoning and errs in concluding for itself that Castañeda was

credible. Supreme Court precedent and the precedent of this

circuit require that the agency be given an opportunity to
-61-

reconsider, particularly when the BIA did not find it necessary to

comment on all of the evidence relied upon by the IJ. The majority

errs in holding as a matter of law that Castañeda was credible and

that he had no knowledge of the massacre. The record does not

compel either conclusion.

This sequence of errors has led the majority into yet a

further error, one of great significance and going well beyond the

particulars of this case. The majority takes a one-line statement

by the BIA -- that Castañeda still had not met his burden even

assuming he was credible that he personally had not killed or

harmed anyone -- and draws two mistaken conclusions. First, it

turns this into a statement that the BIA made a holding assuming

Castañeda was credible in all of his testimony, including that he

had no knowledge of the massacre. The BIA did not say this, and if

there is any ambiguity, the case should be remanded for the BIA to

clarify. Second, the majority sees in the BIA's statement a ruling

of law on the relevance of Castañeda's knowledge about the massacre

to the statutory exclusion for those who assist or otherwise

participate in persecution. The BIA's statement means no such

thing. The issue of the legal significance of Castañeda's

knowledge was not raised or argued before the agency in the removal

proceedings, but was rather raised sua sponte by this court, which

asked for and received post-argument briefing on the issue.
-62-

Despite the position of the Attorney General that this

issue of statutory interpretation is not before this court, was not

raised or exhausted before the agency, and is committed in the

first instance to the BIA, the majority nonetheless addresses the

issue itself, contrary to both the exhaustion and Chevron

doctrines. The majority's conclusion as a matter of law that

Castañeda has met his burden of proving he was not a persecutor

depends on the majority's implicitly deciding that knowledge is a

requirement under the statute (contrary to the position stated by

the Attorney General in his brief) and then on the majority's

applying this newly formulated legal rule to its version of the

facts of this case. The majority refuses to permit the agency to

examine on remand the questions both of statutory interpretation

and then of application of the legal standard to the facts. The

majority concludes that Castañeda has established that he did not

assist or otherwise participate in the persecution and remands to

the agency to consider only the question of whether he should be

granted asylum.

The majority is wrong on all of these points and has

overstepped the limited role assigned to the courts in reviewing

decisions of the BIA in immigration cases. The proper outcome of

this case is a simple affirmance of the BIA's decision on the

grounds that the decision is based on substantial evidence that

Castañeda has not met his burden and the record does not compel any
-63-

other finding. There is no need to reach the other issues the

majority reaches. More than that, courts are forbidden from

denying the BIA the opportunity to interpret what the statute

means. Accordingly, I dissent. I also attach to this dissent the

decision of the BIA in this case, so it may be read directly.

II.

A. Standard of Review

We are required to give deferential review to the BIA's

findings. "[A] decision that an alien is not eligible for

admission to the United States is conclusive unless manifestly

contrary to law." 8 U.S.C. § 1252(b)(4)(C). As to the BIA's

subsidiary factual findings, including credibility determinations,

we apply the highly deferential substantial evidence standard.

Dhima v. Gonzáles, 416 F.3d 92, 95 (1st Cir. 2005). Under this

standard, "[t]he [BIA's] determination must stand 'unless any

reasonable adjudicator would be compelled to conclude to the

contrary,'" id. (quoting 8 U.S.C. § 1252(b)(4)(B)), meaning we can

overrule the BIA's findings only if the evidence "points unerringly

in the opposite direction." Laurent v. Ashcroft, 359 F.3d 59, 64

(1st Cir. 2004).

"We review the BIA's legal conclusions de novo, with

appropriate deference to the agency's interpretation of the

underlying statute in accordance with administrative law

principles." Gailius v. INS, 147 F.3d 34, 43 (1st Cir. 1998); see
 The majority objects to my account of the facts as unduly 42

recounting "the actions of persons for whom Castañeda was not

responsible and who were without his command or authority." I am

merely recounting, however, the persecution that Castañeda is

supposed to have assisted or participated in. The evidence of such

persecution was properly before the IJ and BIA. The majority also

appears to complain that the extent of the persecution is

irrelevant and should be ignored. There is no rule that the BIA

cannot weigh the extent of persecution. Again, that is a decision

for the BIA.

-64-

also Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005) (citing,

inter alia, Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837, 842-43 (1984)).

B. Facts of Record

As I believe the majority's discussion is materially

incomplete, I independently recount the facts as contained in the

administrative record. See 8 U.S.C. § 1252(b)(4)(A). 42

Castañeda joined the Peruvian military in 1978. In 1983,

he graduated from a military academy and was commissioned as a

lieutenant. In January 1985, Lieutenant Castañeda was transferred

to anti-terrorist Battalion 34, stationed in Ayacucho, a province

within the "emergency zone" and the historic birthplace of the

Shining Path. This battalion, composed of five companies spread

throughout the region, engaged in field operations. Castañeda was

first assigned to be head of a twenty-man patrol in Sacchaeamba,

which had two patrols.

After three months, Castañeda transferred to another

base, in Vilcashuan, again as head of one of two patrols.
-65-

Castañeda was one of only a few officers at this base; besides

himself, there was a captain and a base head. Castañeda was

stationed there in August of 1985.

In August 1985, Castañeda was involved in a military

operation, the details of which are at the center of this case.

The operation involved four patrols. Two of the patrols, led by

Sub-Lieutenant Telmo Hurtado and Lieutenant Riveri Rondón, were to

enter the village of Llocllapampa, in the Accomarca region, to

search for Shining Path members. Two other patrols, including

Castañeda's, were assigned to block escape routes from the village.

The two main patrols entered the village and massacred as

many as sixty-nine civilians. The massacre was reported by the

media, and a formal investigation followed. A Peruvian Senate

Human Rights Commission found that Hurtado's patrol had herded the

village inhabitants into two houses, open fired on them, lobbed

grenades inside, and set fire to the houses. The Commission

concluded that the operation amounted to genocide and found that

"[j]udging by the age of the people and the way they responded[,]

it was clear that the people attacked and killed were defenseless."

The Commission noted that Castañeda's patrol was "not

involved in any confrontations with fugitive civilians." But it

also found that the massacre could not simply be attributed to a

single out-of-control officer; instead it wrote that Hurtado "is

only a piece of a larger picture and it is necessary to study
 The majority notes that any such orders must have come from 43

those with a higher rank than Hurtado, rather than from Castañeda.

The point, however, is that the BIA could consider that if Hurtado

was acting on orders, rather than in the heat of the moment, it is

much more likely that Castañeda would have known about the massacre

before it happened.

 It is unclear whether he also was charged with first degree 44

murder.

-66-

whether he acted on virtue of expressed verbal orders." The 43

Commission left it to the Peruvian court system "to determine

. . . the people responsible . . . and apply punishments as

dictated by the law."

The massacre was documented in the U.S. State

Department's 1985 Country Report on Human Rights Practices in Perú.

The report stated that "an Army sub-lieutenant and three other

officers were responsible for the Accomarca massacre of some 25 to

69 peasants." Castañeda admitted during testimony before the IJ

that he was one of the officers referred to in the report. The

report also said the men involved had been charged in the military

and civilian court systems in Perú.

The Peruvian Supreme Court decided the military courts,

rather than the civilian courts, had jurisdiction, and Castañeda,

along with Hurtado and others, was charged in a military court

martial in 1986. Castañeda was charged with homicide and abuse of

authority. Castañeda appeared in a military court on at least 44

four occasions, represented by a civilian lawyer, and produced

documents in his defense. He also testified in his own defense,
 The IJ and BIA never reached the issue of whether Castañeda 45

could meet the standards for asylum or withholding of removal. See

8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A). Because the BIA did not

reach the issue, I do not address it either.

-67-

answering questions from a judge and prosecutor. Castañeda was

apparently acquitted of all charges at the court martial. He

returned to duty thereafter and was eventually promoted to captain

in 1991.

Castañeda's application for asylum and other relief was

based on his assertion that after the massacre, he was persecuted

by the Shining Path. Castañeda decided to leave Perú. He 45

obtained tourist visas for himself and his family, resigned from

the military, and came to the United States in 1991.

In January 1993, he and his family applied for asylum and

withholding of removal. The claims for relief were initially

denied by an agency hearing officer, who found, in a May 19, 1999

report explaining the denial, that Castañeda was ineligible for

asylum because his testimony was "only partially credible." The

report stated that Castañeda's testimony about his duties as a

military officer was "vague and evasive," and that Castañeda's

testimony regarding military practices was "inconsistent with

country condition information." Castañeda had "denied awareness of

any harm that occurred to captives," testified that suspected

terrorists were turned over to a military intelligence unit, and

"testified not to have any knowledge of any harm that may have
-68-

occurred to such persons." The report found it unlikely that a

Peruvian military officer of Castañeda's era would have had "such

limited knowledge of the treatment of suspected terrorist[s]."

Castañeda's case was subsequently referred to an IJ for

adjudication. The hearing officer's report was in the record

before the IJ and BIA.

III.

The hearings before the IJ focused on whether Castañeda

was ineligible for asylum and withholding of removal because he

"ordered, incited, assisted, or otherwise participated in the

persecution" of others on account of "race, religion, nationality,

membership in a particular social group, or political opinion."

8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).

Under the applicable regulations, if evidence is produced

"indicat[ing]" that an alien engaged in such behavior, the alien

must prove by a preponderance of the evidence that he or she did

not do so. 8 C.F.R. §§ 1208.13(c)(2)(ii), 1208.16(d)(2). The IJ

found, and Castañeda does not dispute, that the government produced

evidence indicating that Castañeda "assisted, or otherwise

participated" in the Accomarca massacre. It is, as a result,

undisputed that the burden lay with Castañeda to show that he did

not do so.
-69-

A. Hearing Before the IJ

Castañeda put on two types of evidence during an extended

hearing before the IJ: his testimony about the events in question

and a document purporting to be a judgment from a military tribunal

acquitting him of certain charges.

Castañeda testified extensively about his military

experiences both before and during August 1985. He testified that

at both bases at which he was stationed in 1985, he headed one of

two patrols. While one patrol was out on operations, the other

stayed to protect the base. Castañeda indicated that his patrol

went out on both combat and reconnaissance missions. The commander

of the battalion was the person who determined the instructions the

patrols were given.

Sometimes the patrols were coordinated; sometimes they

were independent. Castañeda testified that when the patrols were

independent, the commander still let each patrol know where the

others were. It was, he said, "very important to coordinate the

movement." Castañeda said his patrol would "keep contact with the

base by radio," and at least sometimes would make direct radio

contact with other patrols in the area.

Castañeda testified that in August 1985, after several

weeks of reconnaissance patrolling, he was ordered to go on a

combat patrol in mobilized, coordinated activity with three other

patrols. His order came from the base captain, following orders of
-70-

the division command. Castañeda indicated that he was briefed in

advance on the missions of the other three patrols involved in the

operation. He was informed that there were forty to sixty Shining

Path terrorists at a training center in the village. His patrol

was ordered to deploy itself to a place where it could block the

path providing an escape route from the village. His deployment

position was, according to Castañeda, located three to five miles

from the village. A second patrol was supposed to block the other

exit to the village, but it never arrived at its position. The two

remaining patrols were the active patrols whose mission was to go

into the village.

Castañeda's patrol had twenty men, a radio, and a rocket

launcher. He said it took approximately six hours to reach the

deployment position. Once there, he testified, he and his troops

hid themselves along the sides of the path. When he was in

position, he radioed that fact back to the head of the base. He

said he would have been in charge of deciding whether to open fire

if anyone came along.

Castañeda testified that he knew there would be an attack

on the village, but was not told when the two lead patrols were

ready to attack or when the attack began. He says he was told, via

radio contact from the base, only when the attack was over. During

the operation, he testified, no one came down the path and his
 The majority claims that the remainder of Castañeda's response 46

makes "clear that Castañeda misunderstood the question." This is

far from clear. An equally plausible interpretation of the

language quoted by the majority is that Castañeda testified that

while he had the frequencies, he did not need to use them. Between

two reasonable interpretations, we must defer to the one adopted by

the IJ and BIA.

-71-

patrol fired no shots. Other evidence in the record suggests the

attack went on for two to three hours.

Castañeda denied hearing any radio communications from

the attacking patrols during the mission. At first, when asked if

he had been "informed what frequencies the two attacking patrols

would be using," he replied, "That's correct." Shortly 46

thereafter, however, he said he did not have the frequencies of the

other patrols because he had not been given them. When asked

whether the two attacking patrols had his patrol's radio frequency

so that they could notify him of any escaping guerrillas, he said

they did not. He maintained that each patrol could contact the

base by radio, and the two attacking patrols could communicate with

each other, but the attacking patrols, by contrast, could not

communicate with the patrols blocking the escape routes. Castañeda

was asked to reconcile this testimony about the lack of radio

contact among all the patrols, particularly in a mission where

multiple patrols were trying to coordinate an attack, with his

earlier testimony that communication among patrols could be

important. He responded that the attack had been centrally planned
-72-

that way and that he was simply ordered to exercise his independent

judgment in controlling exit points.

After the attack ended, Castañeda was ordered back to

base by his base commander. He acknowledged that there was a

debriefing. He testified that he did not find out about the

massacre until weeks later, when he heard a report on civilian

radio. He said he later found out that Hurtado had admitted to

executing civilians.

As to the subsequent court martial, Castañeda stated that

he was acquitted of all charges, and produced a document

purportedly showing that the Supreme Council of Military Justice

had affirmed the dismissal of the charges against him. The

document, dated April 4, 1989, stated in relevant part that

Castañeda was charged with homicide and abuse of authority and that

the charges were dismissed. It gave no reason for the dismissal.

Castañeda submitted no other documentation relating to

the court martial. He did not introduce into his immigration

proceedings a transcript of the military court proceedings or the

documents he had used in his defense. He also offered no evidence

as to what the elements of the charged crimes were, and therefore

did little to prove the significance of the purported acquittal in

determining whether he assisted or otherwise participated in

persecution. However, the U.S. State Department's 1999 Country

Report on Human Rights Practices for Perú does corroborate
 Castañeda also testified several times in 2001 and 2002 before 47

another IJ. After the case was reassigned, the second IJ agreed to

re-hear Castañeda's testimony at the request of Castañeda's

counsel.

-73-

Castañeda's ultimate acquittal, stating that "all the other

defendants" besides Hurtado were "acquitted."

B. The IJ's Decision

The IJ heard testimony from Castañeda in four separate

sessions over the course of more than a month. On October 4, 47

2004, the IJ concluded that Castañeda was ineligible for asylum and

withholding of removal because he had not proven that he did not

"assist[] or otherwise participate[]" in politically motivated

killings. 8 U.S.C. § 1158(b)(2)(A)(i); id. § 1231(b)(3)(B)(i).

The IJ had three grounds for this conclusion. First, he rejected

Castañeda's argument that the one-page Peruvian document dismissing

the charges against him was sufficient to carry his burden.

Second, he held that Castañeda was not credible and had not carried

his burden for that reason. Third, the IJ held that even setting

aside his credibility determination, Castañeda's "motivation and

intent [were] irrelevant," given that the "objective effect of

[his] participation in the Accomarca operation would have been to

. . . aid even in some small measure with the execution and murder

and rape of those unarmed men, women, and children."

The IJ offered numerous grounds for the finding that

Castañeda's testimony was not credible. First, the IJ wrote that
-74-

he had "carefully observed [Castañeda's] demeanor . . . and found

him to be vague, evasive, and non-responsive during questioning by

the Government prosecutor relating to his participation in the

massacre at Accomarca and more importantly whether he was aware of

that massacre." The IJ also found that Castañeda was evasive and

non-responsive when asked why he did not have documentation from

his court martial. The IJ further found that Castañeda's testimony

that he did not have the radio frequencies for the other patrols

the day of the massacre was "wholly incredible," in part because he

had earlier testified that radio contact among patrols could be

important and in part because his demeanor indicated a lack of

veracity. As to this demeanor finding, the IJ wrote that he

"observed [Castañeda's] demeanor during this part of his testimony

and found him to be extremely incredible. . . . [Castañeda was]

blinking his eyes in an unusually rapid rate as compared with the

rest of his testimony." The IJ also found incredible Castañeda's

testimony that he did not find out about the massacre until weeks

later, and then only from the media, especially considering his

rank and his presence at briefings and debriefings. Finally, the

IJ found incredible both Castañeda's testimony about his awareness

of human rights violations in the emergency zone and his testimony

about his knowledge of Hurtado's fate.
-75-

C. The BIA Decision

On appeal to the BIA, Castañeda first argued that the IJ

should have deferred to the Peruvian tribunal's dismissal of the

charges against him; he argued that the IJ's finding -- that

Castañeda failed to prove he had not assisted in persecution -- was

"in direct contravention" of the military court's judgment.

The BIA responded on several levels. First, it held that

the IJ was correct about potential flaws in Castañeda's documentary

evidence: there was some doubt about whether the acquittal document

was properly authenticated, and further, other documents suggested

that the military tribunal may have been a mechanism "to grant

impunity to the alleged persecutors."

Second, the BIA held as a matter of law that dismissal of

the charges in the military tribunal did not establish that

Castañeda was not a persecutor. The government had argued that

"fail[ure] to meet the burden of proof in a criminal forum never

. . . proves that the defendant was factually innocent

[and] . . . [t]he legal presumption of innocence at a criminal

proceeding cannot be substituted for independent facts which could

have established [Castañeda's] burden of proof." Moreover, the

government had noted that "[t]here are many possible scenarios at

a criminal trial that could conclude the proceedings in an

acquittal without a determination of innocence." Agreeing with

these arguments, the BIA concluded that Castañeda's "evidence of
-76-

his dismissal is not necessarily the legal equivalent of a criminal

finding that he was innocent." It was Castañeda's burden to prove

he did not assist or otherwise participate in the massacre; the

military court document, which did not specify the reason for

dismissal of the charges or offer any details on the charges

themselves, did not establish that he had not assisted or otherwise

participated.

In concluding that Castañeda had failed to meet his

burden of proof, the BIA held that "even if the respondent

testified credibly that he did not harm or execute anyone on

August 8, 1985, there is substantial evidence to support the

Immigration Judge's conclusion that the respondent did aid in the

persecution of others by helping to confine them, inasmuch as his

patrol was charged with blocking an escape route for the villagers

. . . ."

The BIA also affirmed on the separate basis that the IJ

had not clearly erred in finding Castañeda less than credible. The

BIA specifically referenced the IJ's finding that Castañeda's

demeanor during a line of significant questioning indicated a lack

of veracity, and affirmed the finding that Castañeda was "evasive"

regarding his court martial. It also said that Castañeda's

argument on appeal that he did not have access to a transcript or

other documents from the court martial "does not seem plausible,"
-77-

and that Castañeda did not "provide any explanation for not

providing [such documents]."

The BIA also affirmed the IJ's conclusion that crucial

portions of Castañeda's testimony were inconsistent and incredible

and reached the same conclusion on its own review. The BIA found

that the IJ had not erred in doubting the veracity of Castañeda's

testimony that he had not been in radio contact with the other

patrols the day of the killings (and thus had not been aware of the

unfolding massacre), particularly because Castañeda's own testimony

established that patrols sometimes made contact and that "radio

contact was important for purposes of coordination as well as

efficiency and protection of the patrols." Further, the BIA

affirmed the IJ's findings that Castañeda was not forthcoming about

the extent of human rights violations by the Peruvian military and

about the fate of Hurtado, the patrol commander charged with

primary responsibility for the massacre. It concluded: "In light

of obvious media attention and international documentation of the

massacre, as well as [Castañeda's] military position and subsequent

accusations about his role, it was reasonable to expect him to

provide answers regarding what occurred in Perú on and after

August 8, particularly since he failed to provide adequate

documentary evidence of his innocence."
-78-

IV.

A. The Adverse Credibility Determination

Substantial evidence supports the BIA's adverse

credibility determination, which in itself is sufficient to support

the BIA's conclusion that Castañeda did not meet his burden. The

IJ and BIA based their findings on Castañeda's demeanor and

evasiveness and on the tendency for his testimony to be

contradictory and non-responsive. The majority errs in dismissing

this evidence and imposing its own view of the record.

In order to carry his burden, "an alien must support his

claim . . . through credible testimony." Nikijuluw v. Gonzáles,

427 F.3d 115, 121 (1st Cir. 2005). "The testimony of the

applicant, if credible, may be sufficient to sustain the burden of

proof without corroboration." 8 C.F.R. § 1208.13(a) (emphasis

added). However, 

[t]his does not mean that a reviewing court

must take every applicant's uncontradicted

testimony at face value, for testimony

sometimes is internally inconsistent or belied

by the prevailing circumstances. Furthermore,

a witness's demeanor is often a critical

factor in determining his veracity. And when

a hearing officer who saw and heard a witness

makes an adverse credibility determination and

supports it with specific findings, an

appellate court ordinarily should accord it

significant respect.

Aguilar-Solís v. INS, 168 F.3d 565, 570-71 (1st Cir. 1999)

(internal citation omitted). In other words, the strong deference

we owe to BIA findings of fact under the substantial evidence
-79-

standard applies even more so to adverse credibility determinations

based on witness demeanor. See Rodríguez Del Carmen v. Gonzáles,

441 F.3d 41, 43 (1st Cir. 2006) ("Matters of witness credibility

and demeanor are peculiarly for the factfinder," and credibility

determinations supported with specific findings are treated "'with

great respect.'" (quoting Laurent, 359 F.3d at 64)).

Here, the IJ said he had "carefully observed

[Castañeda's] demeanor" and had concluded that Castañeda was not

telling the truth about his role in the massacre. More

specifically, the IJ had observed Castañeda's demeanor during his

testimony about radio contact and found him "extremely incredible."

The IJ also found that Castañeda was "extremely vague,

evasive, and non-responsive" when cross-examined by the government

attorney about the massacre and the events following and about his

lack of documentary evidence of the court martial. The BIA found

no error in any of these findings, and its decision was reasonable,

as the following examples show.

During Castañeda's testimony, he appeared to contradict

himself, and failed to give direct answers, in response to a series

of questions about whether he had had the other patrols' radio

frequencies on the day of the massacre. Castañeda initially

indicated that he had had such frequencies, and then stated that he

had not. At some point, the IJ stepped in to get a straight answer

from an evasive witness:
 The majority reads Castañeda's testimony here to have been that 48

he did not know the exact number because "the exact number could

not be determined." As the majority notes, however, this remains

true "[t]o this day," and hence such a reading is not consistent

with Castañeda's assertion that he did not learn the exact number

until the day of his hearing before the IJ. In any event,

regardless of whether the majority's reading is a plausible one, it

is equally plausible, and reasonable on the part of the IJ and BIA,

to read Castañeda's testimony as unduly attempting to minimize his

knowledge of the massacre.

-80-

IJ: Sir, it still hasn't been answered though.

Could you contact the other two patrols by

radio, yes or no?

C: No. I did not on my radio.

IJ: That's not what I asked. Could you

contact them by radio, yes or no?

C: No. I could not.

Later in the cross-examination, Castañeda was asked what

had happened in the village the day of the massacre, and he

replied: "One of the patrols . . . committed excesses." He then

claimed that he did not know until his appearance before the IJ how

many villagers had been killed, and that such information was never

discussed during his court martial. Information about the number

of deaths, however, appears to have been widely circulated

following the massacre, and such information was discussed in the

report of the Peruvian Human Rights Commission, which led to the

court martial.48

Still later, Castañeda was confronted with a 1985 State

Department report stating that "an army sub-lieutenant and three

other officers" were responsible for the massacre. The government
 The majority's claim -- that the issue of Castañeda's knowledge 49

about Hurtado is a "red herring" -- is puzzling. As the majority

itself notes, "Castañeda's case is based on his disassociation from

Hurtado's actions." The BIA and IJ were entirely justified in

presuming that evasiveness as to Castañeda's later knowledge about

Hurtado's fate indicated a lack of credibility regarding his

earlier knowledge about Hurtado's actions.

-81-

attorney asked him whether the report was "talking about you."

Again, the witness was evasive:

C: They are talking about the patrol head of

that commission.

IJ: Sir, are they talking about you, yes or

no?

C: Yes. They are talking about me.

There is also substantial record support for the finding

that Castañeda was evasive about his knowledge about Hurtado. In 49

response to repeated questions, Castañeda denied having any

positive knowledge about whether Hurtado had been discharged from

the military. Yet when confronted with a human rights report from

the U.S. State Department, he admitted to "find[ing] out through

public media when [he] was here in the United States" that Hurtado

had been promoted to captain.

These examples suffice to demonstrate a substantial basis

in the record for the conclusion that Castañeda was evasive and

non-responsive, and for the BIA's refusal to believe his story.

Castañeda and the majority take issue with several of the

subsidiary bases for the BIA's and IJ's adverse credibility

determinations. Castañeda argues, for instance, that the BIA
-82-

erroneously disbelieved his testimony about lack of radio contact

with other patrols, and that it erroneously found him evasive

regarding the extent of human rights violations committed by the

Peruvian military. The majority agrees and adopts similar

criticisms of the BIA.

As to the radio issue, the BIA found unlikely Castañeda's

testimony that on the day of the massacre, not only did he not have

radio contact with the other patrols, but he did not even know the

frequency they were using. The BIA relied in part on Castañeda's

earlier testimony that he sometimes had had direct radio contact

with other patrols; the BIA said this testimony was "inconsistent"

with Castañeda's assertions about the day of the massacre. In a

sense, it was not "inconsistent" for Castañeda to deny radio

contact on the day of the massacre, since, as the majority notes,

he had said that he only sometimes had radio contact with other

patrols. But this criticism misses the BIA's point that this

operation was a coordinated combat mission, out of the ordinary,

and it was much more likely in such a circumstance that the two

attacking patrols would have at least had the capability to contact

Castañeda's patrol by radio, both to provide Castañeda with

information on escaping guerrillas and to call in the assistance of

Castañeda's patrol if needed. If radio contact among patrols was

at least sometimes used, this would have seemed the time to make

contact possible.
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As to the issue of human rights violations, Castañeda

did, after some questioning, admit that he was aware of

extrajudicial killings by the Peruvian army, and that members of

the armed forces had been responsible for disappearances, torture,

and arbitrary detentions. But one could view the record as showing

evasiveness. The BIA could reasonably have considered that

Castañeda's new-found relative candor as to human rights abuses

contrasted sharply with Castañeda's initial asylum interview, when

he was asked the same question and found both not candid and not

credible. The BIA could have considered that Castañeda might have

wanted to downplay the significance of his knowledge of a pattern

of human rights abuses by the Peruvian military before the events

in question.

The BIA's additional bases for its adverse credibility

determination are also substantially supported. The BIA agreed

with the IJ that Castañeda's failure to provide more documentary

evidence from his court martial reflected negatively on his

credibility because such evidence should have been available to

him. See Estrada-Henao v. Gonzáles, 453 F.3d 38, 40 (1st Cir.

2006) (holding that lack of documentation is "not automatically

fatal" but that "where documentation would naturally be expected,

its lack can count against the applicant"). Castañeda was asked

during proceedings before the IJ whether there was any written

accounting of the facts that would support his account of the day
 Of course, such information need not have been "openly 50

discuss[ed]" in order to have been shared.

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of the massacre. He said he had submitted documents to the court

martial, but did not have them for the immigration proceeding.

Given the formal nature of the court martial and the fact that

Castañeda was able to procure the dismissal-of-charges document and

other documents from Perú, the BIA's conclusion that Castañeda's

credibility was weakened by his failure to produce additional

documentation is supported.

The BIA also upheld the IJ's conclusion that given

Castañeda's position as head of one patrol in the joint operation,

his "entire testimony regarding how he found out about [the

massacre] only from the media is wholly incredible." The IJ

reasonably concluded that it was unlikely that information that two

patrols had just killed over five dozen men, women, and children

would not find its way to the third patrol that participated in the

same operation, and particularly to the head of that patrol. The

practice of debriefings only made it even more likely that

Castañeda would have learned about the atrocities engaged in by the

other patrols before the media did.50

In short, the BIA's adverse credibility determination

survives substantial evidence review, and that requires affirmance.

The majority sees in the record insufficient evidence of

Castañeda's participation in the massacre, finding the evidence of
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evasiveness and inconsistencies to be too ambiguous. The majority

forgets, however, that the burden was on Castañeda to prove he had

not assisted or otherwise participated, and that therefore the

question is not whether there was sufficient evidence that he

participated, but whether there was sufficient evidence that he did

not. Since there is substantial evidence to support the BIA's

finding that Castañeda's credibility was questionable, and since

Castañeda relied almost exclusively on his testimony for evidence,

the BIA's decision must be affirmed.

B. Significance of the Peruvian Court's Dismissal of Charges

Castañeda and the majority fault the BIA for failing to

accord the proper weight to the Peruvian court's dismissal of the

court martial charges against Castañeda. They are mistaken,

however, in arguing that the dismissal is itself sufficient to

carry his burden of proof, and indeed, the BIA was not mistaken in

according the bare dismissal very little weight.

Castañeda's main argument is that the BIA erred in

concluding that the Peruvian court martial was a whitewash and in

"disregard[ing]" that court's dismissal of the charges against him.

The BIA did not disregard the Peruvian judgment; it merely

evaluated that evidence and found it not to be particularly helpful

for Castañeda. The BIA also did not rest its conclusion as to the

dismissal's limited significance on a finding that the court

martial was a fraud. The BIA did say that the IJ had so concluded,
 For example, Lieutenant Hurtado, who led one of the combat 51

patrols into the village, was acquitted of first-degree murder

charges and convicted only of abuse of authority. Even if the BIA

had rested its conclusion on the ground that the Peruvian

proceeding was a fraud, we would owe deference under Chevron to

such a conclusion about the significance of a foreign tribunal's

proceedings. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25

(1999) (applying Chevron deference and noting that "judicial

deference to the Executive Branch is especially appropriate in the

immigration context where officials 'exercise especially sensitive

political functions that implicate questions of foreign

relations.'" (quoting INS v. Abudu, 485 U.S. 94, 110 (1988))).

-86-

and noted that "there [was] evidence" to support the conclusion.51

The BIA then gave two other reasons. First, there was no evidence

as to the grounds on which charges were dismissed, and a dismissal

of criminal charges may not be the result of an acquittal on the

merits. Second, dismissal of criminal charges on any grounds --

even acquittal on the merits -- is not the same as a finding of

innocence on those particular charges. Given the divergent burdens

of proof, the mere fact that a defendant has not been proven guilty

beyond a reasonable doubt does not mean he is more likely innocent

than not.

The BIA's reasoning is entirely sound. Furthermore,

Castañeda was charged in the court martial with homicide and abuse

of authority. The elements of those crimes are not the same as the

standards under immigration law to find an alien statutorily

ineligible for asylum. A finding that an alien was acquitted on

homicide and abuse-of-authority charges does not establish that he

did not assist or otherwise participate in persecution. The BIA
 Castañeda also argues that the BIA erred when it deemed him a 52

persecutor because his "behavior was directed toward the defense of

the government, and harm which results from such behavior does not

rise to the level of persecution." As the majority correctly

notes, this argument fails.

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was justified in affording only limited significance to the

dismissal of charges against Castañeda.52

The majority improperly faults the BIA for the

"unreasonable" requirement of "an actual finding of 'innocent.'"

But this is not what the BIA required. The BIA required Castañeda

to provide a different showing -- that he did not assist or

otherwise participate in the persecution. This requirement is not

only reasonable; it is mandated. See 8 C.F.R. §§ 1208.13(c)

(2)(ii), 1208.16(d)(2).

C. The Majority's Failure to Remand

Even if the majority were correct in finding fault with

the BIA's credibility decision, the majority commits serious error

in (a) not remanding to the BIA for further consideration, (b)

determining itself that Castañeda is credible, and (c) finding that

his credible testimony means that, as a matter of law, he has met

his burden and the BIA may no longer consider the question of

whether Castañeda assisted or otherwise participated in

persecution. In addition, and for other reasons, the issue of

statutory interpretation implicit in the majority's holding should

also have been remanded, as discussed later.
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When a reviewing court finds flaws in the reasoning of

the BIA as to the evidence of record, it is ordinarily required to

remand to the agency for further investigation or explanation. The

"ordinary" rule is that if a federal court reviewing an agency

action finds that

the record before the agency does not support

the agency action, or . . . [that] the agency

has not considered all relevant factors, or

. . . the reviewing court simply cannot

evaluate the challenged agency action on the

basis of the record before it, the proper

course, except in rare circumstances, is to

remand to the agency for additional

investigation or explanation.

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

A court of appeals reviewing an agency decision "'is not

generally empowered to conduct a de novo inquiry into the matter

being reviewed and to reach its own conclusions based on such an

inquiry.'" INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam)

(quoting Lorion, 470 U.S. at 744); see also R.I. Higher Educ.

Assistance Auth. v. Secretary, U.S. Dept. of Educ., 929 F.2d 844,

857 (1st Cir. 1991) ("[A] reviewing court, having determined that

an administrative agency did not consider all the relevant factors,

should ordinarily remand the matter to the agency rather than

compensating for the agency's oversight by launching a

free-wheeling judicial inquiry into the merits."). "When an agency

. . . has provided insufficient explanation for its action, the
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reviewing court ordinarily should remand the case to the agency."

Seavey v. Barnhart, 276 F.3d 1, 12 (1st Cir. 2001).

We have particularly applied this rule in immigration

cases. In Cordero-Trejo v. INS, 40 F.3d 482 (1st Cir. 1994), we

held, as does the majority here, that the IJ's adverse credibility

determination was not supported by substantial evidence, because

the claimed inconsistencies were not supported by the record. Id.

at 491. We then followed the "usual practice and rule" of

"remand[ing] for further consideration by the Board," even where

"the IJ's conclusions are not drawn from any perspectives offered

by the unique vantage point of the factfinder, such as witness

demeanor, conflicting or confused testimony, etc., from which

credibility is typically assessed." Id. at 491-92. The majority

violates circuit law in failing to remand here.

Similarly, in Gailius v. INS, 147 F.3d 34 (1st Cir.

1998), this court found that the BIA's conclusion was not supported

by substantial evidence, in that the BIA had failed to address

portions of the petitioner's evidence that would corroborate his

testimony. Id. at 46-47. The majority here points, for example,

to "a portion of the [State Department] report the government

failed to read at the hearing." We held in Gailius that remand was

the appropriate remedy and that in general, remand is appropriate

"when a reviewing court cannot sustain the agency's decision
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because it has failed to offer legally sufficient reasons for its

decision." Id. at 47.

The Supreme Court has stated that the "ordinary remand

requirement" has "obvious importance in the immigration context."

Ventura, 537 U.S. at 16-17; see also Gonzáles v. Thomas, 126 S. Ct.

1613, 1615 (2006) (per curiam). This is because immigration

decisions often involve matters on which the BIA can bring its

particular expertise to bear. See Ventura, 537 U.S. at 17 (finding

that agency expertise on country conditions supported remand as a

remedy). Indeed, this court has held that the more an issue

relates to matters within an administrative agency's particular

expertise, the less willing a court should be to decide an issue

itself. See R.I. Higher Educ. Assistance Auth., 929 F.2d at 857

("[T]he more imbricated a matter, the more cautious a reviewing

court should be about attempting to resolve the issue itself,

rather than remanding to the agency.").

The ordinary rule applies with full force here, and even

if in rare circumstances a reviewing court could eschew remand,

this is not such a case. Even if the BIA's reasoning as to the

finding that Castañeda lacked credibility were flawed, the majority

is not correct in finding that the evidence compels exactly the

opposite conclusion: that Castañeda is credible. That is

especially so because Castañeda bears the burden to show his

credibility. The BIA did not find it necessary to comment on all
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of the reasons the IJ gave for finding Castañeda not credible --

for example, on the point that Castañeda was vague and evasive

concerning how he learned about the massacre. The BIA must be

given the opportunity to reconsider such evidence. An appellate

court should not, as the majority does, make a credibility finding,

especially in a case such as this one involving "witness demeanor"

and "conflicting or confused testimony." Cf. Cordero-Trejo, 40

F.3d at 491. The majority cites no case in which an appellate

court made its own credibility finding.

Moreover, there are other reasons to remand. Although

the majority faults the BIA for allegedly failing to accord

appropriate deference to the judgment of the Peruvian military

court, the majority apparently does not assert that this judgment

alone satisfies Castañeda's burden. The BIA must be allowed to

reconsider its decision in light of the majority's ruling on the

appropriate view of the foreign judgment.

V.

The majority further errs in holding that Castañeda met

his burden to show that he did not assist or otherwise participate

in persecution. The majority improperly reads into the BIA's

decision a holding it did not make, then improperly decides a novel

issue of statutory interpretation, and finally improperly applies

its newly formulated rule to the facts of this case.
-92-

The majority reads the BIA's opinion to have stated a

holding assuming that Castañeda did not know about the massacre.

No such holding can be found. The BIA's opinion addressed the

dismissal of the court martial charges against Castañeda and the

correctness of the credibility determination made by the IJ. The

only sentence discussing an alternate holding states that in the

BIA's opinion,

even if the respondent testified credibly that

he did not harm or execute anyone on August 8,

1985, there is substantial evidence to support

the Immigration Judge's conclusion that the

respondent did aid in the persecution of

others by helping to confine them, inasmuch as

his patrol was charged with blocking an escape

route for the villagers and people located in

the emergency zone.

(emphasis added). The majority finds that this lone sentence,

together with its citation to a page in the IJ's opinion and to In

re Rodríguez-Majano, 19 I. & N. Dec. 811 (BIA 1988), suffices to

open the door to the majority's conclusions: (a) that as a matter

of law, a person without prior or contemporaneous knowledge of the

persecution cannot have assisted or otherwise participated in the

persecution within the meaning of the statutes at issue here by

blocking an escape route for those persecuted, and (b) that because

the record purportedly compels the conclusion that Castañeda had no

such knowledge in this case, Castañeda has met his burden to show

that he did not assist or otherwise participate in persecution.
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The majority is simply wrong in all of this. First, the

majority is wrong to find in the BIA's opinion any holding that

takes into account the state of Castañeda's knowledge. The BIA did

not say that it was assuming all of Castañeda's testimony was

credible, only that even if Castañeda had not harmed or killed

anyone on the day of the massacre, this did not establish that he

did not assist or otherwise participate in the massacre. The cited

portion of the IJ's opinion merely supports this proposition by

finding Castañeda's "motivation and intent" largely irrelevant: the

majority agrees that this is the established rule. RodríguezMajano also supports this proposition by incidentally mentioning

that one can participate in persecution without directly harming

anyone by having an "objective effect." Id. at 815. Neither the

IJ nor Rodríguez-Majano considered whether knowledge has any

bearing on a finding that an alien assisted or otherwise

participated in persecution. The BIA did not consider this point

either.

If there is any ambiguity as to what the BIA held, or

questions about the basis for the BIA's holding, the majority is

required to remand to the BIA for further explanation. See Halo v.

Gonzáles, 419 F.3d 15, 16 (1st Cir. 2005) ("The BIA offered no

further explanation for its conclusions. Lacking such explanation,

and given that the final agency decision does not rest on a

lack-of-credibility determination, we are left with significant
 The case most on point is Naujalis v. INS, 240 F.3d 642, 647 53

(7th Cir. 2001), in which the Seventh Circuit found that a soldier

who guarded a railway station had assisted in the persecution

engaged in by his battalion. The majority objects that Naujalis is

a case about Nazi guards and that Peruvian military guards, unlike

-94-

questions about the justifications for the denial. We therefore

vacate the BIA's order and remand."). The majority is not free to

decide the case on grounds not addressed by the BIA. See Gailius,

147 F.3d at 44 ("'[A] reviewing court . . . must judge the

propriety of [administrative] action solely by the grounds invoked

by the agency.'" (alteration in original) (quoting SEC v. Chenery

Corp., 332 U.S. 194, 196 (1947))).

The majority attempts to obscure the fact that it is

deciding the issue, unaddressed by the BIA, of whether knowledge of

a massacre can be a requirement to a finding that an alien assisted

or otherwise participated in that massacre. The majority does so

by repeatedly asserting its prior improper conclusion that

Castañeda did not know about the massacre, and then assuming this

lack of knowledge as a background fact in its analysis of the

"objective effect" of Castañeda's actions.

It may be that the majority is saying that even if

Castañeda knew full well that the villagers would be massacred, he

still would not have assisted or otherwise participated in the

massacre. If that is what the majority means, its holding is both

irrational and flatly contrary to the "objective effect" line of

cases that the majority cites. The majority cites no case holding 53
Nazi guards, can serve legitimate purposes. The statute makes no

such distinction, and in any event, such a distinction has no

bearing on the culpability of one who participates in an operation

involving persecution.

 In only one of the many "objective effect" cases cited by the 54

majority did the court reverse a finding that the alien was a

persecutor. That case is Hernández v. Reno, 258 F.3d 806 (8th Cir.

2001), a case involving a man forcibly recruited to join a

guerrilla movement and turning on whether the man's actions were

sufficiently coerced. None of the "objective effect" cases cited

by the majority involved aliens who might not have acted knowingly.

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that those with lesser tasks -- such as blocking escape routes --

should not be barred as persecutors. To be clear, the calculus 54

might be different if Castañeda did not know about the atrocities,

but that issue is one for the BIA to address in the first instance.

The logic of the majority's opinion thus depends upon its

reaching and resolving an issue of statutory interpretation, namely

whether knowledge is a factor that must be considered in

determining whether an alien "assisted or otherwise participated

in" persecution within the meaning of 8 U.S.C. § 1158(b)(2)(A)(i)

and 8 U.S.C. § 1231(b)(3)(B)(i). The majority errs in deciding

this issue without a ruling on it by the BIA.

The principles in this case are clear. "We review de

novo an agency's construction of a statute that it administers,

although subject to established principles of deference."

Griffiths v. INS, 243 F.3d 45, 49 (1st Cir. 2001). "Under those

principles of deference, if the intent of Congress is clear, it

must govern, but where the statute is silent or ambiguous on an
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issue, the question for the court is whether the agency's

interpretation is based on a permissible construction of the

statute." Id. (citing, inter alia, Chevron, 467 U.S. at 842-43).

"Since agency officials acting in the immigration context 'exercise

especially sensitive political functions that implicate questions

of foreign relations,' deference to administrative expertise is

particularly appropriate." Id. (internal quotations omitted)

(quoting Abudu, 485 U.S. at 110).

The BIA must be given the first opportunity to rule on

questions of statutory interpretation. It is only through such a

ruling that the BIA can fulfill its role in "'the formulation of

policy and the making of rules to fill any gap left, implicitly or

explicitly, by Congress.'" Elien v. Ashcroft, 364 F.3d 392, 396

(1st Cir. 2004) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).

Such a ruling is also necessary for the BIA to bring to bear its

specialized "expertise in matters of foreign policy." Id.

The BIA has not had this opportunity here. The record

shows that this knowingness issue of statutory interpretation was

not raised or argued before it, and was only the subject of

supplemental briefing in this court, after this court sua sponte

raised the issue at oral argument. As a result, because Castañeda

did not clearly present this issue to the BIA, we in fact lack the

authority to even consider it. See Olujoke v. Gonzáles, 411 F.3d

16, 23 (1st Cir. 2005). Further, even if Castañeda had exhausted
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his administrative remedies, he would have waived the argument by

failing to make it in his initial brief to this court. See Cipes

v. Mikasa, Inc., 439 F.3d 52, 55 (1st Cir. 2006).

The majority cannot defend its decision to interpret the

statute itself as encompassing a knowledge requirement on the

ground that the role it assigns knowledge is required by the plain

meaning of the statute. That argument is foreclosed by Fedorenko

v. United States, 449 U.S. 490 (1981). Fedorenko involved a

similar provision, which precluded admission to the United States

under the Displaced Persons Act of aliens "who had assisted the

enemy in persecuting" civilians. Id. at 495. Fedorenko, who said

he was a prisoner of war who had been forced to serve as a guard in

a Nazi concentration camp, argued the exclusion did not apply to

him because his service had been involuntary. The Supreme Court

held that the statute did not include the term "voluntary" and the

Court was "not at liberty to imply a condition" into the statute.

Id. at 513. The Court commented that the administrative

interpretation of the exclusion was that it applied whether or not

the assistance was voluntary and whether or not the alien had

participated in the persecution himself. Id. at 499. The Court

also noted the need for strict compliance with all statutory

preconditions to naturalization given that "Congress alone has

. . . constitutional authority" in this area. Id. at 506.
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Finally, the Court held that the federal courts lacked equitable

power to vary the terms of the statute. Id. at 516-18.

The plain text of the statutes at issue here contains no

"knowledge" qualifier to a finding that an alien "assisted or

otherwise participated" in persecution. Indeed, the majority does

not claim that the statute unambiguously contains a knowledge

qualifier. Rather, the majority effectively holds that knowledge

is a factor which the BIA must consider. Not only is such a factor

nowhere to be found in the statutory text, but determining which

factors to consider in applying a statute is even more clearly the

province of the BIA. See Aguirre-Aguirre, 526 U.S. at 424

(faulting the Ninth Circuit for "fail[ing] to accord the required

level of deference" to the BIA by requiring that it "examin[e]

additional factors"). Such factors are to be developed by the BIA

"'through a process of case-by-case adjudication'", id. at 425

(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987)), and

cannot be found in the statutory text.

Finally, the majority errs in making its own findings of

fact and then in determining that these facts dictate a holding

that Castañeda did not assist or otherwise participate in

persecution. It is the BIA's role to "determin[e] the facts and

decid[e] whether the facts as found fall within a statutory term."

Thomas, 126 S. Ct. at 1615. The majority claims that

we are presented with the following set of

facts: (1) the uncontradicted evidence is that
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the purpose of the Operation was directed at

the Shining Path guerillas in the village, not

civilians; (2) Castañeda and his men were

hidden in the jungle three to five miles from

the village and about thirty meters from the

path they were guarding; (3) during the time

they were there, they did not see or hear

anyone, nor did they fire any shots; (4) they

never entered the village and never directly

or indirectly participated in the killings of

the villagers, which was carried out by a

rogue patrol led by Hurtado in a previously

unplanned manner; (5) Castañeda and his men

lacked any control or authority over this

rogue patrol; and (6) they did not know what

occurred in the village during the Operation.

This is not true. Neither the IJ nor the BIA found or assumed that

Castañeda had established that there was no order allowing the

patrols to harm civilians who were known to have harbored the

Shining Path, that Hurtado's patrol was a rogue patrol acting

entirely on its own, or that Castañeda had no knowledge of the

massacre before or as it was happening. The record does not compel

any of these conclusions. Even if the record compelled these

conclusions, the BIA must be given the opportunity to apply the

majority's newly formulated rule to the facts.

VI.

For the reasons stated above, the majority opinion has

not only erred, but it is at odds with the statutory mandate, the

decisions of the Supreme Court, and our own prior case law. Asylum

is not a right; it is a privilege. See Fedorenko, 449 U.S. at 518

("'An alien who seeks political rights as a member of this Nation

can rightfully obtain them only upon the terms and conditions
-100-

specified by Congress.'" (quoting United States v. Ginsberg, 243

U.S. 472, 474-75 (1917))). Congress has decided that privilege

does not extend to those who assist or otherwise participate in

persecution within the meaning of the statute, as reasonably

interpreted by the BIA. I respectfully dissent.
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ADDENDUM
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