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David Eduardo Castan'eda-Castillo v. Eric H. Holder, Jr

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Before Torruella, Ripple, *fn1 and Lipez, Circuit Judges.

This is the latest round in a lengthy series of proceedings adjudicating petitioner David Eduardo Castaneda-Castillo’s petition for asylum and withholding of removal.*fn2 Castaneda’s asylum claims have previously been before this court, having already been the subject of a 2006 panel opinion, Castaneda-Castillo v. Gonznles, 464 F.3d 112 (1st Cir. 2006) (“Castaneda I”), as well as an en banc decision a year later, Castaneda-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007) (“Castaneda II”).*fn3 In Castaneda II, we vacated the decisions of the Immigration Judge (“IJ”) and Board of Immigration Appeals (“BIA”) applying the “persecutor bar” to Castaneda’s asylum claims, and held that the persecutor bar could not be applied to block asylum claims absent a finding that the individual involved had actual knowledge that he or she was engaged in the persecution of others. Castanneda II, 488 F.3d at 22. We remanded the case for further proceedings. The instant appeal is from the decision of the BIA reviewing the IJ’s decision on remand. For reasons explained below, we conclude that the IJ and BIA adjudication of Castanneda’s asylum petition was marred by legal error. Consequently, we again vacate the denial of Castanneda’s asylum petition and remand for further proceedings.

I. The root of the controversy is Castanneda’s role in a 1985 massacre of sixty-nine civilians in Accomarca, Peru during Peru’s struggle with the Shining Path movement, a violent Maoist insurgent group that “is among the world’s most ruthless guerrilla organizations.” Castan eda I, 464 F.3d at 114 n.3. What follows is an abbreviated summary of the facts and procedural posture of the instant appeal. Readers seeking further details are advised to refer to our earlier 2006 panel decision, id. at 113-22.

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