Immigration – Asylum – Peruvian citizen

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Where a plaintiff Peruvian citizen has been denied asylum in the United States, we find that the Board of Immigration Appeals’ adjudication of the plaintiff’s asylum petition was marred by legal error.

            Accordingly, we vacate the BIA’s denial of the plaintiff’s petition and remand for further proceedings.

Discussion 

            “We vacate the BIA’s denial of [plaintiff David Eduardo] Castaneda[-Castillo]’s asylum claim, and remand to provide the BIA with an opportunity to consider whether ‘Peruvian military officers whose names became associated with [a massacre of civilians in] Accomarca [Peru]’ is a cognizable social group, bearing in mind that we do not read [Matter of] Fuentes, [19 I. & N. Dec. 658 (BIA 1988)] to establish a per se rule against asylum claims raised by those who were military officers at the time of their persecution. Should that question be answered in the affirmative, Castaneda would then be entitled to a presumption of a well-founded fear of future persecution, and absent a sufficient rebuttal by the government, should be deemed eligible for asylum. [T]his panel retains jurisdiction over Castaneda’s appeal pending resolution of the questions remanded to the BIA.

            “We stress that this case has been ping-ponging around for over eighteen years, having been the subject of two sets of IJ and BIA decisions, as well as both a previous panel and en banc decision by the First Circuit. A point comes when enough is enough. Regardless of the ultimate outcome of his extradition proceedings, it is our expectation that our opinion today will aid the IJ and BIA in the expeditious and final resolution of Castaneda’s asylum claims.”

            Castaneda-Castillo, et al. v. Holder (Lawyers Weekly No. 01-067-11) (27 pages) (Torruella, J.) (1st Circuit) Heard on petition for review of a Board of Immigration Appeals order (Docket No. 09-1847) (March 24, 2011).

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