06-3285-ag
Gao v. U.S. Att’y Gen.


                           UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT
                              _______________________________

                                       August Term, 2006

 (Submitted: July 13, 2007                                         Decided: September 4, 2007)

                                    Docket No. 06-3285-ag
                              _______________________________

XU SHENG GAO,

                                     Petitioner,
                      v.

UNITED STATES ATTORNEY GENERAL,

                              Respondent.
_______________________________

Before: POOLER, PARKER, and WESLEY, Circuit Judges.
_______________________________

       Petition for review of an order of the Board of Immigration Appeals affirming the

Immigration Judge’s decision finding petitioner statutorily ineligible for asylum or withholding

of removal on the basis of the persecutor bar. Petition granted; order vacated and remanded.


                                     Gang Zhou, New York, NY, for Petitioner.

                                     Benjamin H. White, Jr., First Assistant United States
                                     Attorney, for Anna Mills Wagoner, United States Attorney
                                     for the Middle District of North Carolina, Greensboro, NC,
                                     for Respondent.

                             _________________________________



                                                   1
POOLER, Circuit Judge:

       Petitioner Xu Sheng Gao seeks review of the June 30, 2006, order of the Board of

Immigration Appeals (“BIA”) adopting and affirming Immigration Judge (“IJ”) Paul A.

DeFonzo’s February 3, 2005, decision finding Gao statutorily ineligible for asylum or

withholding of removal on the basis of the persecutor bar in 8 U.S.C. § 1158(b)(2)(A)(i) and 8

U.S.C. § 1231(b)(3)(B)(i). See In re Gao, No. A. 95 172 158 (B.I.A. June 30, 2006), aff’g No. A.

95 172 158 (Immig. Ct. N.Y. City Feb. 3, 2005). We previously granted Gao’s motion seeking

expedited review. On July 16, 2007, we issued an order announcing our disposition in this case.

As we stated in that order, the petition for review is granted, the order of the BIA is vacated, and

the matter is remanded to the agency for further proceedings consistent with this opinion. We

now explain the basis of our decision and hold that the IJ erred in concluding that Gao was

statutorily barred from obtaining asylum or withholding of removal on the basis that he had

“assisted” in the persecution of others.1

                                            BACKGROUND

       Gao is a native and citizen of China. He entered the United States on March 11, 2001, as

a non-immigrant B1 visitor. [JA 484] On December 10, 2001, Gao filed an affirmative

application for asylum and withholding of removal on the basis that he had been persecuted in

China on account of his political opinion. [JA 379-88] Gao was subsequently interviewed by an

asylum officer, who determined that Gao was “barred by statute from a grant of asylum” because

evidence indicated that he had “ordered, incited, assisted, or otherwise participated in the



       1
        We grant the pending motion seeking “disregard of petitioner’s personal missive” for the
reasons stated in the attorney affidavit supporting the motion.

                                                 2
persecution of others . . . .” [JA 260]. The matter was therefore referred to an immigration judge.



       On November 16, 2003, the government filed a motion to pretermit Gao’s asylum

application on the basis that he was a persecutor under Section 208(b)(2)(A)(i) of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(b)(2)(A)(i). [JA 468-72] On February

3, 2005, Gao had a hearing before the IJ in which he testified as follows. From February 1997 to

October 2000, Gao was the chief officer of the Quingdao City Culture Management Bureau. [JA

120-21, 126] Gao supervised approximately 35 inspectors who were assigned to different

districts. [JA 122] Gao’s Bureau was responsible for inspecting bookstores to determine if they

were selling any prohibited materials. [JA 120] Prohibited materials were items that were banned

by the Chinese government’s cultural laws, such as works that violated copyright laws, works

containing sexual content, and works of a “politically sensitive” nature. [JA 154] Every year, Gao

and his inspectors would receive a list from the Quingdao City Culture Management

Administrative Office that contained the titles of each prohibited item. [JA 123] If prohibited

materials were found, the inspectors would confiscate the items and issue a violation certificate.

[Id.] Gao’s Bureau did not have authority to impose any sanction beyond confiscating the

prohibited materials and issuing citations. [JA 125] When they encountered a serious case, which

occurred when either the seller was a repeat offender or had more than 50 prohibited items, Gao

would report the matter to the Vice President of his Bureau, who would then determine whether

the matter should be referred to the Industrial and Commercial Management Bureau. [Id.] The

Industrial and Commercial Bureau would then decide whether to impose a sanction such as

levying a fine or cancelling the seller’s business license. [Id.] Gao stated that based on his


                                                  3
knowledge of Chinese law, he was aware that the most serious sanction that a violator could

receive was a sentence of 10 years in prison, but during his time with the Bureau, he did not

know of anyone who had been arrested or jailed. [JA 125-26, 156, 159-60] The most severe

penalty that occurred during his tenure with the Bureau was the revocation of an owner’s

business license. [JA 159-60] However, the possibility existed that a serious matter could be

referred to the Public Security Bureau, which did have the authority to make arrests and pursue

criminal charges against a violator. [JA 165] Gao did not have any input in such decisions, and

his authority ceased once the matter had been referred to the Vice President of his Bureau. [JA

125]

       As part of his job, Gao would on occasion personally conduct inspections of bookstores.

[JA 127] This occurred at least once a month. [Id.] During these inspections, bookstore owners

would sometimes give books to Gao to have him assess whether they were prohibited. [JA 126-

28] Gao started reading some of these books, including books about democracy, Western culture,

and works that were critical of the Chinese government. [JA 128-29] In these cases, Gao would

not report the violations and would not confiscate the books. [JA 129-30] He also began giving

these books to his friends to read. [JA 129-30] Gao testified that although he was concerned that

he himself was violating the regulations, he believed these were important books and the Chinese

people should be told about what their government was doing. [JA 130-31]

       Generally, when Gao conducted inspections, he went by himself. On one occasion,

however, on October 3, 2000, he conducted an inspection with two other inspectors. [JA 131-32]

During this inspection, he found a book entitled The Prince Party of China, which was a

prohibited book that he had previously read. [JA 132-33; 171-72] Gao told the owner to get rid of


                                                4
the book, but he did not confiscate it because he had changed his attitude toward these types of

books and now believed that they should be sold. [JA 133-34] Although Gao thought his actions

went unnoticed by the two inspectors who had accompanied him, a few days later, his supervisor

came to him and told him that he had violated the rules by failing to detect and confiscate a

prohibited item. [JA 134-35] Gao was temporarily suspended from his duties by his supervisor.

[JA 135-36] Then, on October 12, 2000, two police officers came and took Gao to the Public

Security Bureau for questioning. [JA 136] Gao testified that they confronted him about his failure

to confiscate the book on October 3rd, which he denied. [JA 137] The police officers then began

beating him with their batons in order to force him to admit that he was working with the book

sellers to sell prohibited materials. [JA 137] Gao was ultimately detained fifteen days before he

was released. [JA 139] The officers released him so that he could obtain medical treatment for

the injuries caused by the beating, but told him he would have to report to the police station every

week. [JA 140] Soon after he was released, Gao received notice that he had been fired from his

job because he had violated the rules and assisted book sellers in distributing prohibited

materials. [JA 144]

       Gao reported to the police station as instructed twice, but then learned that the police

planned to bring criminal charges against him. [JA 142-43] He therefore fled China and came to

the United States. [Id.] While in the United States, Gao has learned from his wife that police have

repeatedly come to his house looking for him because had failed to report to the police station as

required. [JA 145]

       At the conclusion of the hearing, the IJ rendered his oral decision. The IJ first made an

“overall positive credibility” finding with regard to Gao’s testimony. [JA 47] The IJ further


                                                 5
found that Gao “possesses a well-founded fear of persecution should he be compelled to return to

China” and “has also demonstrated by a clear probability of the evidence that he would be

subjected to persecution should he be compelled to return to China.” [JA 48] Nevertheless, the

IJ denied Gao’s applications for asylum and withholding of removal because he concluded that

Gao was a “persecutor” within the meaning of the refugee statute due to his prior work with the

Culture Management Bureau. The IJ determined that “any arrests or penalties imposed upon

individuals violating the precepts of the Communist Party in China had to be effected with the

activity and acquiescence of the respondent and the management bureau of which he was the

administrator.” [JA 50] Therefore, the IJ found that Gao’s activities “were the direct link between

the dissemination of materials deemed prohibited by the Chinese government and the

enforcement or the application of sanctions by the various organs of the Chinese government.”

[JA 50] The IJ further cited the State Department Country Report on China, which indicated that

the Chinese government was responsible for “rampant human rights abuses” and “maintains tight

restrictions on freedom of speech and of the press.” [JA 50] In particular, the Country Report

showed that China has “cracked down on printing houses and the publishing of books which the

government considers to be politically sensitive.” [JA 51] From this, the IJ concluded that Gao’s

“role in the pattern and practice of persecution of publishers, journalists, and book sellers is

integral to the ability of the Chinese government to persecute those individuals.” [JA 51] On June

30, 2006, the BIA adopted and affirmed the IJ’s decision without further explanation.2 [JA 2]



       2
         The government failed to file a timely brief before the BIA, and the Board rejected the
government’s untimely submission. [JA 3] Thus, to the extent the government disputed the IJ’s
positive credibility finding or his determination that Gao had otherwise demonstrated eligibility
for asylum and withholding of removal, it waived its right to present such arguments.

                                                  6
       On July 13, 2006, Gao timely filed a petition for review in this court. While the petition

was pending, Gao was taken into custody by immigration officials and placed in a detention

center. On June 7, 2007, this court granted Gao’s motion to expedite review based on his

attorney’s affidavit stating that Gao’s physical and mental health had severely deteriorated while

in immigration custody such that he had become suicidal. The case was placed on the court’s

calendar for July 13, 2007, and in light of the expedited nature of the proceedings, we issued an

order on July 16, 2007, indicating our disposition of the matter. We now explain the basis of our

decision.

                                          DISCUSSION

       Asylum is available to an individual who establishes that he or she is a refugee under

Section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). See 8 U.S.C. §1158(b)(1)(A). Refugees

are persons who are unable or unwilling to return to their native country “because of persecution

or a well-founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Similarly, withholding of

removal is available to any person whose “life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A). Both forms of relief, however, specifically exclude

individuals who “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); see also 8 U.S.C. § 1231(b)(3)(B)(i). The

definition of refugee also explicitly exempts “any person who ordered, incited, assisted, or

otherwise participated in the persecution of any person on account of race, religion, nationality,


                                                 7
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). These

provisions are known as the “persecutor bar,” and render an applicant statutorily ineligible for

either asylum or withholding of removal even if the applicant can otherwise satisfy the

requirements for obtaining those forms of relief.

       In this case, the IJ found that Gao had satisfied his burden of demonstrating a well-

founded fear of persecution on account of political opinion as required under the asylum statute,

as well as a clear probability that his life or freedom would be threatened if returned to China as

required for withholding of removal. Both forms of relief were denied solely on the basis of the

persecutor bar. Because the BIA adopted and affirmed the IJ’s decision without adding any

further explanation, we review the IJ’s decision directly. See Ming Xia Chen v. BIA, 

, 144 (2d Cir. 2006). We review de novo the IJ’s legal conclusion that the tasks performed by

Gao rendered him a “persecutor” under the statute. See Khouzam v. Ashcroft, 

, 165

(2d Cir. 2004) (“The BIA’s application of law to undisputed facts is reviewed de novo.”); cf.

Mirzoyan v. Gonzales, 

, 220 (2d Cir. 2006) (per curiam) (determination of whether

the facts meet the legal definition of persecution “is a mixed question of law and fact, which we

review de novo”). We review the underlying factual findings supporting this conclusion under

the substantial evidence standard, upholding them if they are supported by “reasonable,

substantial, and probative evidence in the record when considered as a whole.” Secaida-Rosales

v. INS, 

, 307 (2d Cir. 2003) (internal quotation marks omitted); see also 8 U.S.C. §

1252(b)(4)(B). An applicant bears the burden of demonstrating that he or she has satisfied the

requirements for asylum or withholding of removal. See 8 U.S.C. § 1158(b)(1)(B); 8 U.S.C. §

1231(b)(3)(C). “If the evidence indicates that one or more of the grounds for mandatory denial


                                                 8
of the application for relief may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.” 8 C.F.R. § 1240.8(d).

       In this case, there is no evidence that Gao ordered, incited, or participated in any act of

persecution. Thus, the question before this court is whether the IJ correctly concluded that Gao,

through his actions as an inspector with the Culture Management Bureau, “assisted” in the

persecution of others. We hold that the record does not support this conclusion.

       In evaluating a persecutor bar claim, it must be remembered that this provision authorizes

the deportation of individuals who have established that they would likely be persecuted if sent

back to their native country. Thus, courts must be cautious before permitting generalities or

attenuated links to constitute “assistance.” In this case, the IJ properly focused his analysis on

the fact that the Chinese cultural laws that Gao’s Bureau enforced permitted the arrest and

imprisonment of book store owners who distributed “politically sensitive” materials. As the IJ

recognized, the arrest and detention of individuals for selling books containing politically

disfavored views can constitute persecution on account of political opinion. See Tian-Yong

Chen v. INS, 

, 128 (2d Cir. 2004) (noting that the term persecution “includes ‘more

than threats to life or freedom’”) (quoting Begzatowski v. INS, 

, 669 (7th Cir. 2002)

(noting that types of actions that might constitute persecution include “detention, arrest,

interrogation, prosecution, [and] imprisonment” (internal quotation marks omitted))); cf. Manzur

v. U.S. Dep’t of Homeland Sec., --- F.3d ---, 

, at *7 (2d Cir. July 16, 2007) (IJ

erred in failing to adequately explain why petitioners’ month-long confinement for their political

views did not amount to persecution).

       However, the mere fact that Gao may be associated with an enterprise that engages in


                                                  9
persecution is insufficient by itself to trigger the effects of the persecutor bar. As the Supreme

Court’s oft-quoted dicta in Fedorenko v. United States, 

(1981), illustrates, a “guilt

by association” approach to the persecutor bar is improper:

       [A]n individual who did no more than cut the hair of female inmates [in
       concentration camps] 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.

n.34; see also Maikovskis v. INS, 

, 446 (2d Cir. 1985) (“We do not mean

to suggest . . . that an alien’s inactive membership in an organization bent on politically-based

persecution or that his tangential provision of services to such an organization would suffice to

show that the alien assisted or otherwise participated in such persecution . . . .”); In re Rodriguez-

Majano, 19 I. & N. Dec. 811, 814-15 (B.I.A. 1988) (“[M]ere 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.”).

       We have used this dicta from Fedorenko as a guide in evaluating whether an individual

had “assisted” in acts of persecution. See Zhang Jian Xie v. INS, 

, 141-42 (2d Cir.

2006); United States v. Reimer, 

, 459-60 (2d Cir. 2004); 

; United States v. Sprogis, 

, 121 (2d Cir. 1985); see also Miranda Alvarado v.

Gonzales, 

, 925 (9th Cir. 2006) (noting that the Supreme Court’s “somewhat cryptic

footnote” in Fedorenko “has since become the principal guide to interpreting persecutor

exceptions generally”). In Xie, this court’s most recent and detailed discussion of the persecutor


                                                 10
bar, we observed that when determining whether an individual’s actions constituted assistance in

persecution, our prior cases “looked not to the voluntariness of the person’s actions, but to his

behavior as a whole. Where the conduct was active and had direct consequences for the victims,

we concluded that it was ‘assistance in persecution.’ Where the conduct was tangential to the

acts of oppression and passive in nature, however, we declined to hold that it amounted to such

. Applying these principles, we then examined whether Xie, who

had worked as a driver for the Changle County Department of Health in China’s Fujian Province,

had “assisted” in persecution within the meaning of the INA. Although most of Xie’s tasks were

mundane, he had on occasion “transported pregnant women to hospitals in the locked back of a

van, against their will, so that county officials could perform forced abortions on them pursuant

to China’s mandatory family planning policies.” 

We found that Xie’s action

“contributed directly to the persecution” because “[b]y driving the van in which the women were

locked, Xie ensured that they were delivered to the place of their persecution: the hospitals where

their forced abortions took place.” 

Thus, we concluded that Xie had “played an active

and direct, if arguably minor, role” in carrying out acts of persecution, and accordingly, the IJ had

properly determined that Xie was ineligible for relief under the persecutor bar. 

contends that the IJ’s decision here fits squarely within the holding of

Xie. We disagree for several reasons. First, this case raises a preliminary issue not addressed by

the court in Xie. Before we can determine whether Gao’s conduct “contributed directly” to

persecution, or if instead his conduct was “tangential” to the acts of persecution, the record must

first reveal an identifiable act of persecution in which Gao allegedly assisted. This was not an

issue in Xie because the acts of persecution in which Xie allegedly assisted were clear. Xie


                                                 11
testified to specific incidents in which he had driven women to family planning clinics, against

their will, where involuntary abortions were then performed on them. 

The question in

Xie was whether Xie’s role as a driver was sufficient to constitute assistance in these identified

acts of persecution. Contrary to Xie, however, the record in this case does not disclose any actual

act of persecution in which Gao allegedly assisted. Gao’s testimony, which the IJ found credible,

only indicates Gao’s awareness that under the law, one could be arrested or imprisoned for

serious violations of the cultural laws. There is no evidence in the record that any book seller

Gao or his inspectors cited for violating the cultural laws was ever arrested, detained, charged,

prosecuted, or imprisoned for selling prohibited materials. Gao specifically testified that to his

knowledge, the most serious sanction that had been imposed on a book seller during his time

with the Bureau was the revocation of a business license. [JA 159-60] Before Gao may be held

personally accountable for assisting in acts of persecution, there must be some evidence that he

himself engaged in conduct that assisted in the persecution of another.3 That evidence must

further show that the alleged act of persecution occurred on account of one of the protected


       3
         We note that the record contains testimony from the asylum officer who first interviewed
Gao and drafted the assessment memo. The officer testified that he “got the impression” that
arrests and imprisonment occurred while Gao worked at the Bureau. [JA 186] He further testified
that he assumed Gao’s inspectors were the ones who arrested people. [JA 188-89] He
acknowledged, however, that he never asked Gao if he arrested anyone and he had no
recollection of Gao ever stating that his inspectors had arrested people. [JA 189] Nevertheless,
the asylum officer stated that he would “interpret” his notes as meaning that Gao’s inspectors
were the ones “arresting people, detaining people, and fining people.” [JA 190] The IJ noted that
the asylum officer’s testimony and his assessment memo created an ambiguity regarding Gao’s
precise activities at the Bureau, but the IJ resolved this dispute in favor of Gao, crediting his
testimony that his Bureau had no authority to make arrests and noting that Gao categorically
denied the asylum officer’s version of the interview. [JA 47] The government has not challenged
this finding, 

n.2, nor does it attempt to rely on the asylum officer’s testimony in its
brief to this court. Accordingly, we too give no weight to the asylum officer’s testimony in
deciding this appeal.

                                                 12
grounds: race, religion, nationality, membership in a particular social group, or political opinion.

        On this point, we agree with the analysis set forth by the Seventh Circuit in Singh v.

Gonzales, 

, 739-40 (7th Cir. 2005). In determining whether a local police officer

with the Punjabi police department in India had assisted in persecution, the court noted that the

body of case law involving individuals who had worked in Nazi concentration camps was not

“fully compatible with the present statutory and factual situation” 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 Sikhs.” 

Thus,

in these instances of “line-drawing,” courts must take care to distinguish between “genuine

assistance in persecution and inconsequential association with persecutors.” 

words,

simply being a member of a local Punjabi police department during the pertinent period of

persecution is not enough to trigger the statutory prohibitions on asylum and withholding of

removal. Rather, for the statutory bars . . . to apply, the record must reveal that the alien actually

assisted or otherwise participated in the persecution of another . . . .” 

(emphasis in

original).

        Like the Punjabi police department, the Culture Management Bureau does not exist solely

to persecute individuals for distributing politically disfavored materials, but also performs

legitimate tasks such as enforcing copyright and pornography laws. Therefore, even though the

State Department Country Report indicates that the Chinese government is an “authoritarian

state” that has engaged in “numerous human rights abuses” and “maintain[s] tight restrictions on

freedom of speech and of the press” [JA 203, 204], this is insufficient on its own to trigger the


                                                  13
persecutor bar without evidence indicating that Gao actually assisted in an identified act of

persecution. The record contains no evidence that any such act of persecution occurred in

connection with Gao’s activities with the Culture Management Bureau. Consequently, there is

no evidentiary support for the IJ’s determination that Gao’s activities had a “direct link” to acts

of persecution. Nor is there any basis from which the IJ could conclude that Gao’s actions had

“direct consequences for . . . victims” of persecution. 

.

       Furthermore, the IJ’s statement that “any arrests or penalties imposed upon individuals

violating the precepts of the Communist Party in China had to be effected with the activity and

acquiescence of the respondent and the management bureau of which he was the administrator”

[JA 50] is neither an accurate statement of the record nor sufficient to invoke the persecutor bar.

Without evidence that an individual inspected by Gao’s Bureau had been persecuted for violating

the cultural laws, it cannot be said that “arrests or penalties” were imposed on individuals “with

the activity and acquiescence” of Gao. In addition, the only “activity” Gao performed that could

have allegedly assisted in persecution was to issue a report to his supervisor when he or his

inspectors encountered a “serious” violation of the cultural laws. [JA 124-25] The link between

this action and the potential arrest or imprisonment of any individual is too attenuated to sustain a

finding that Gao had assisted in persecution. Numerous steps had to occur before an arrest could

potentially occur, and neither Gao nor his Bureau had any input, knowledge, or control in such

decisions. While Gao could issue a report to his supervisor, his supervisor also lacked authority

to arrest or detain any individual. Instead, the supervisor, in his or her discretion, would then

determine if the matter was serious enough to refer further to the Industrial and Commercial

Management Bureau. [JA 125] While the Industrial and Commercial Management Bureau could


                                                 14
decide, in its discretion and without the input or knowledge of Gao, to impose fines and revoke

business licenses [JA 125, 165], it too had no authority to effectuate arrests. An arrest could only

occur if someone—outside Gao’s Bureau and without his input or knowledge—made the

determination to refer the matter to the Public Security Bureau. [JA165] Gao’s authority ceased

once the matter was reported to his supervisor. [JA 125, 164-65] Moreover, it was entirely

within the discretion of others beyond Gao’s control and knowledge whether the matter would

even reach the Public Security Bureau, and the report passed across several desks before reaching

the stage where arrest or imprisonment were possible. Finally, at each point in the process, a

discretionary decision had to be made as to whether the matter would proceed further, and Gao

had no involvement beyond his initial decision to issue a report. Under these circumstances, we

cannot conclude that the act of issuing a report that could potentially be used to arrest an

individual is sufficient to constitute a “direct link” to persecution.

        Similarly, the IJ’s reliance on the portion of the State Department Report indicating that

the “Chinese government has cracked down on printing houses and the publishing of books

which the government considers to be politically sensitive” [JA 51] also provides little support

for the conclusion that Gao assisted in acts of persecution. While the Country Report indicates

that the Chinese government has imposed harsh sanctions against publishers that print politically

disfavored content, there is nothing in the record indicating that Gao’s actions as an inspector of

bookstores assisted in the persecution of printing houses. There is no evidence that shows, or

even suggests, that any publishers were persecuted as a resu lt of Gao’s actions. While there is

no question that political dissidents can face harsh treatment in China [JA 219-25], the record

must contain some evidence connecting Gao’s specific actions to those acts of persecution before


                                                  15
he can be labeled a “persecutor.”

       Finally, on this record, we are also unable to conclude that Gao had the requisite level of

knowledge that his acts assisted in persecution to sustain a finding that he was a “persecutor”

under the statute. Our sister circuit recently considered the issue of whether the persecutor bar in

the INA contains a scienter element. See Castañeda-Castillo v. Gonzales, 

, 20-22

(1st Cir. 2007) (in banc). The petitioner in that case, while serving in the Peruvian military, had

participated in a raid on a village that resulted in the brutal massacre of civilians. 

His

patrol never entered the village, but instead was tasked with blocking escape routes out of the

village. 

no dispute that Castañeda-Castillo’s acts, if committed with knowledge of

the massacre of innocent civilians, constituted assistance in persecution under the refugee statute.

Castañeda-Castillo claimed, however, that he had no knowledge that the raid would

involve the murder of civilians, he had been told that the purpose of the raid was to arrest

members of the Shining Path group, and he did not learn the true nature of the raid until weeks

later. 

The IJ and BIA denied Castañeda-Castillo’s application for asylum based on the

persecutor bar, agreeing with the government’s position that Castañeda-Castillo’s state of mind

was irrelevant so long as the “objective effect” of his actions assisted in persecution. 

The First Circuit, sitting in banc, rejected this view in a unanimous decision:

       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.

(emphasis in original). The court further noted, however, that cases of “willful


                                                  16
blindness or strong suspicions, or an abettor who knows generally of a pattern of persecution

while being ignorant of specific incidents” could constitute “gray-area cases where less than full

and detailed knowledge may suffice.” 

In addition, because of the statutory scheme in

place, see 8 C.F.R. § 1240.8(d),4 once the government has satisfied its initial burden of

demonstrating that the persecutor bar applies, the burden would then shift to the applicant to

disprove knowledge. See 

.

        While the evidence need not show that the alleged persecutor had specific actual

knowledge that his actions assisted in a particular act of persecution, we find persuasive the First

Circuit’s view that the persecutor bar requires some level of culpable knowledge that the

consequences of one’s actions would assist in acts of persecution. Otherwise, the statute would

sweep in every individual who unwittingly commits an act, no matter how minor, that

unbeknownst to them provided direct assistance to a persecutor’s scheme. See 

(“[T]he

bus driver who unwittingly ferries a killer to the site of a massacre can hardly be labeled a

‘persecutor,’ even if the objective effect of his actions was to aid the killer’s secret plan.”).

Whether Gao’s claimed lack of knowledge was a product of his willful blindness or whether

Gao’s mere awareness of the potential penalties one could face under the Chinese cultural laws

provides the requisite level of knowledge, are questions best addressed by the agency in the first

instance. But some analysis of this element is required before we can sustain a finding that an

individual “assisted . . . in the persecution of others” under the persecutor bar.


        4
         We note that the First Circuit relied on the burden of proof provision in 8 C.F.R. §
1208.13(c)(2)(ii), which applies to asylum applications filed before April 1, 1997, as Castañeda-
Castillo’s had been. Because Gao’s application was filed after this date, his case is governed by
8 C.F.R. § 1240.8(d), which contains similar language with respect to the proper burden of proof
in cases involving the persecutor bar.

                                                  17
                                        CONCLUSION

       For the foregoing reasons, the petition for review is granted, the order of the BIA is

vacated, and the matter is remanded to the agency for further proceedings consistent with this

opinion. Because the BIA’s order is vacated, the pending motion to stay the order of removal is

denied as moot.




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