Castaneda Castillo v. Gonzales, No. 05-2384. The original opinion is here, and our coverage is here and here. That recounts the facts. This dude got into some trouble in the Peruvian military, and might have known something about persecuting people that the Peruvians persecute. The question is how the IJ and the BIA should have treated findings of Peruvian military courts, which found that he somehow participated in persecution. But, the First explains the mental states that need to be shown, and the presumptions that exist when someone that might have been involved in persecution applies for asylum. Maybe I am reading this too fast (feel free to jump in, if you disagree with my assessment), but it seems that the government, by moving for rehearing en banc, just made their job a lot harder in these asylum cases. Anyway, Boudin lays the issue out nicely:
The statute that bars persecutors has a smooth surface beneath which lie a series of rocks. Among the problems are the nature of the acts and motivations that comprise persecution, the role of scienter, whether and when inaction may suffice, and the kind of connection with persecution by others that constitutes "assistance." The more one ponders the variety of possible situations, the less confident one becomes of a useful, all-embracing answer....
What remains in dispute is the legal question whether the persecutor bar would apply to Castañeda if he had no prior or contemporaneous knowledge of the murder of civilians.
See, you can use colorful language without sounding pretentious.
On the facts:
But in the present case, it appears as if Castañeda either had guilty knowledge or (as he claims) knew nothing about the massacre until after it had occurred. If this is a case somewhere in between--say, of strong suspicions or willful blindness on Castañeda's part--the government has not spelled out such a possibility. No such scenario is described in the IJ or Board decisions, and the government does not point to any evidence for such an "in between" assessment.
Therefore, “We hold that presumptively the persecutor bar should be read not to apply to Castañeda if his version of his state of mind is accepted. On remand the agency can, if it wants, try to develop a construction more favorable to the government... But this would have to be done expressly and persuasively, and not by vague reference to the 'totality of . . . conduct' that conflates the question whether one's conduct constitutes 'assistance' with the question whether one possessed such scienter as may be required under the circumstances.”
The decision ends by patting the BIA on the head and saying;
People are sometimes skeptical about whether an agency, asked by a reviewing court to revisit a matter, will do so with an open mind. We count on the agency to give this case a truly fresh look, unclouded by any prior judgment of Castañeda's credibility. Although we intend no criticism of the IJ, and the matter of assignments is primarily for the agency, confidence in this instance would be enhanced if a new IJ were to make the next assessment.
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