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, 464 F.3d 112

TORRUELLA, Circuit Judge. Petitioners David Eduardo Castañeda-Castillo (“Castañeda”), his wife, and two daughters ask 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)® and 1231(b)(3)(B)®.

After careful review, we grant the petition for review and reverse the decision of the BIA. I. Facts and Procedural Background 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 Naturalization Service’s (“INS”) asylum office on May 19,1999. 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, 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 the hearings. We glean the following facts from his testimony and 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.

His original duties included teaching military training, such as the use of weaponry, handling of prisoners, community service, and guarding equipment. After twelve months, Cas-tañeda 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 Ayacu-cho 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 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 patrol, and went out on his first patrol one day after arriving at Sac-chaeamba. 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 Cas-tañeda. 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 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. Castañe-da 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. Cas-tañeda testified that if, while on a reconnaissance 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 twenty-five patrols, most of them reconnaissance. He never had any direct contact with the Shining Path. Sometime in June or July of 1985, Cas-tañeda, 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 Lloellapampa in the Accomarca zone to search for Shining Path members. Links 7 was led by Sub-Lieutenant Telmo Hur-tado (“Hurtado”), and Links 6 was led by Lieutenant Riveri Rondón (“Rondón”). Two other patrols were assigned to block escape routes from the village. Castañe-da led one of these blocking patrols, codenamed 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. Castañe-da 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 Castañe-da’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.

Castañe-da testified that he was the one who would have made the decision whether to open fire if anyone 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. Cas-tañeda 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 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 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, 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 the path and never fired any shots.

Once back at base, he was debriefed. 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 Castaneda’s patrol, Tiger, was “not involved in any confrontations with fugitive civilians.” The Human Rights Commission found that Links 7, under Hurtado’s command, was the group that carried out the massacre. 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-lieutenant and three other officers were responsible for the Ac-comarca 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. 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, Cas-tañeda 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 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.” Castañe-das 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. Cas-tañeda 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 Hur-tado was incarcerated in a military prison, but 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.

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 introduced the 1999 State Department Report, which indicated that Hurta-do 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, 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. Castañe-da 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 “[tjotal deaths related to antiter-rorist operations of the security forces are estimated by human rights groups as being in the thousands for 1980-85.” Cas-tañeda 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 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 Cas-tañeda’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 Castañe-da’s 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, Cas-tañeda 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 Cas-tañeda 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 evidence, that the BIA erred in disregarding the decision by the 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). “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 inconsistent testimony regarding whether or not he was in radio contact with the other patrols during the Operation; (3) that Cas-tañeda’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 Cas-tañeda was acquitted. The 1999 State Department Report specifically states that, except for Hurtado, “all the other defendants” were acquitted of any 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 uncontro-verted that he was in fact acquitted. 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 Peru. This military system, which was granted jurisdiction over Cas-tañeda’s case by the Peruvian Supreme Court, acquitted Castañeda. In 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 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 Castañe-da’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 serving some jail time.

However, other parts of the record indicate that in 1995, then-President Fujimori and Peril’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 Castañe-da’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, Cas-tañeda 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.” 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, Castañe-da 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 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 Castañe-da’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, Cas-tañeda 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 Cas-tañeda not credible. 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 Castañe-das 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 “[tjotal deaths related to antiterrorist operations of the security forces are estimated by human rights groups as being in the thousands between 1980-1985,” Cas-tañeda 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, Castañe-da 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, “[pjrecise information is lacking on the number of civilian victims and their identities (terrorist or non-terrorist) as well as the identity of their assailants (terrorists, security forces, or peasant self-defense 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. Having considered the entire record, we do not think that substantial evidence supports the BIA’s determination that Castaneda 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. 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 Castañe-da’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, “[ajfter [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 [Hur-tado] 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? 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 Cas-tañeda 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 Hur-tado “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 people would, he tried to resume Ms normal life. We see nothing to indicate that Castañeda was not forthcoming about Hurtado’s fate. 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 Hurta-do 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 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 Castañe-da’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 Cas-tañeda’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 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 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 Cas-tañeda 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. 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, 123 S.Ct. 353, 154 L.Ed.2d 272 (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, 123 S.Ct. 353 (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, 123 S.Ct. 353. The Supreme Court has also recently applied the ordinary remand rule in Gonzales v. Thomas, — U.S. -, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006). In Thomas, the Immigration Judge denied a petitioner’s asylum claim without considering her alleged fear of persecution 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 “evaluated] the evidence” and brought “its expertise to bear upon the matter.” Ventura, 537 U.S. at 16, 123 S.Ct. 353. 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 Corde-ro-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 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 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 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 Acco-marca 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.

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 individuars race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(2)(A)®, 1231(b)(3)(B)®. In the instant case, it is undisputed that Castañe-da 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 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 reasoning of the BIA, argues that Castaneda’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, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981).

In Fedoren-ko, the Court interpreted a provision of the Displaced 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 civilians] or had ‘voluntarily assisted the enemy forces ... in their operations ... ’ ” Fedorenko, 449 U.S. at 495, 101 S.Ct. 737 (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, 101 S.Ct. 737, “that the Russian armed guards significantly outnumbered the German soldiers at the camp, 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, 101 S.Ct. 737. 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, 101 S.Ct. 737. The Court found that “[ujnder 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, 101 S.Ct. 737 (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 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., 101 S.Ct. 737 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. Gonzales, 449 F.3d 915, 920 (9th Cir.2006); Higuit v. Gonzáles, 433 F.3d 417, 421 (4th Cir.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, 449 F.3d 915, 918; 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, 449 F.3d 915, 918 (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) consequences for the victims or further the persecution in some material way.

See Miranda Alvarado, 449 F.3d 915, 918 (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, 449 F.3d 915, 919; 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”). Turning now to Castañeda’s particular case, we conclude that substantial evidence does not support the BLA’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 uncontradict-ed evidence is that the purpose of the Operation was directed at the Shining Path guerrillas 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. Given these facts, and considering the totality of relevant conduct, we are compelled to conclude that Castañeda did not assist or otherwise participate in the persecution of the villagers. First, Castañe-da’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, Castaneda’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 halving] direct consequences for the victims” of the persecution, Xie, 434 F.3d at 143, especially since no one ever came down the path Castañe-da’s patrol was watching. Instead, Cas-tañedas 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 or fired any shots. In other words, the massacre of the villagers during the Operation would have occurred regardless of whether Castañeda ever reached his assigned position, and Castañeda did nothing to facilitate the massacre in any way because his patrol never encountered anyone. Cf. Miranda Alvarado, 449 F.3d 915, 927 (finding that, without the petitioner’s actions, the persecution would not have gone forward).

Add to these facts Castaheda’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 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 Castaneda’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 quoted portion of the dissent is reenforced 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 Cas-tañeda 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 Cas-tañeda 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, 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. 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 Castañe-da’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 Peril, 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. . Castañeda’s wife and daughters were included in his asylum application. . The dissent claims that our discussion of the facts is "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 66, line 11, through page 67, 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. .

The Shining Path is a Maoist guerrilla group that "is among the world’s most ruthless guerrilla organizations” and "[ejngages 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/ 45394htm (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 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. . The first Immigration Judge left the bench after Castañeda had 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 into English by an interpreter. During the government’s cross-examination 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 Cas-tañeda replied "No. I could not.” .

According to the State Department's 1985 Country Reports on 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. .

The dissent states that Castañeda said it was " '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.” 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 to coordinate the movement” was in response to the question "Was it important to know the location of otherfs] 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. .

This zone was located within the Ayacucho region, i.e., the emergency zone. . Apparently, Lloellapampa is located between two mountains, and there were very few paths into or out of the village. . The dissent states that, when asked if he was informed what 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, 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. 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 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. . This testimony is supported by other aspects of the record, which we discuss infra. . The dissent makes much of the fact that Castañeda was debriefed, 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 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 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 43, that "if Hurtado was acting on orders, rather than in the heat of the moment, it is much more likely that Cas-tañeda 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 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 tire 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 Hurta-do 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. .In stating that “three officers [including Castañeda] were 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. . From the record, it appears that the Peruvian military justice system has three levels: a trial level, an appeals level, and the Supreme Council of Military Justice as the highest level. . The record indicates that Hurtado's case was still pending when 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, he had heard rumors that Hurtado had been promoted to captain, but he did not know if they were true. . Castañeda’s petition was filed after the passage of the Real ID 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 Cas-tañeda’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 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 regarding what the burden should have been before the Immigration Judge. .

The BIA also stated that “the respondent’s evidence of his 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, b

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