John Doe v. ALBERTO R. GONZALES , Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3671
J OHN D OE ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Attorney General of the United States,
Respondent.
____________
Petition to Review an Order by the
Board of Immigration Appeals.
No. 72 414 062
____________
A RGUED F EBRUARY 23, 2007—D ECIDED A PRIL 17, 2007
____________
Before P OSNER , K ANNE , and R OVNER, Circuit Judges.
P OSNER , Circuit Judge. John Doe is the pseudonym of a
former lieutenant in El Salvador’s army who has sought
asylum in the United States. He has been permitted to
litigate his claim pseudonymously because of his fear that
if he is returned to El Salvador he will be killed. An
immigration judge denied his claim for asylum and other
relief back in 2001, and despite the novelty and im-
portance of the case the Board of Immigration Appeals
affirmed the immigration judge’s decision without opinion.

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2 No. 03-3671
The roots of the case are in a notorious episode in El
Salvador’s vicious civil war, which raged from 1980 to 1992
and included such atrocities as the murder of a Catholic
archbishop while he was celebrating mass, the rape and
murder of four American nuns, and the Jesuit murders out
of which this case arises.
Doe in 1989 was an army lieutenant assigned as an
instructor at the military academy in San Salvador. The
head of the academy, a colonel named Benavides, one
evening convened a meeting that he ordered Doe to attend.
At the meeting Benavides announced that he had been
ordered to kill Father Ellacuria, a Jesuit who was the
president of a university in San Salvador and was regarded
as an ally of the rebels. Another colonel, Hernandez,
ordered Doe to accompany the members of the Atlacatl
Battalion (which in 1981 had massacred the entire popula-
tion—men, women, and children—more than 200 in all, of
the village of El Mozote) who would conduct the opera-
tion under the command of a lieutenant named Espinoza,
a member of the battalion.
Doe expressed to Hernandez misgivings about the
mission. The two agreed that the order to kill the Jesuit was
immoral, but that to object would risk their being killed.
Doe prepared for the mission by donning battle fatigues,
painting camouflage on his face, and fetching his rifle
and ammunition. He then accompanied the 30 to 40 mem-
bers of the Atlacatl Battalion assigned to the mission.
When they arrived at the university, around midnight,
Doe walked about the university grounds (with which he
was not familiar—unlike the members of the Atlacatl
Battalion, who had reconnoitered the site several days
before the attack), saw two women in a room, heard shots,
and later saw bodies on the ground. Six Jesuits, including

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No. 03-3671 3
the university’s president, were killed, along with a
female cook and her daughter. There were no survivors.
Doe did not give orders, fire his gun, seize anyone, or
block anyone’s attempted escape. But when he returned
to the base, he assisted in destroying log books identify-
ing the soldiers who had participated in the raid.
All this is according to Doe’s testimony, which the
immigration judge credited.
The Salvadoran ministry of defense appointed an “Honor
Commission” of military officers to investigate the mur-
ders. The commission ordered Doe’s arrest. He was tried
for the murders along with Benavides. Both were con-
victed and given prison sentences. Seven others—members
of the Atlacatl Battalion who had participated in the
mission, including the commander, Espinoza—were also
tried, but they were acquitted, though several of them had
confessed to participating in the murders.
The trial took place in 1991. The following year, as part
of the accord that ended the civil war, the United Nations
appointed a “Truth Commission” for El Salvador to
investigate “serious acts of violence that have occurred
since 1980 and whose impact on society urgently de-
mands that the public should know the truth.” United
Nations Truth Commission, From Madness to Hope: The 12-
Year War in El Salvador 18 (1993). High-ranking officers
ordered Doe not to cooperate with the commission. But
he did cooperate, revealing not only to the commission
but also to Father Tojeira, a leading Jesuit, what he knew
about the murders at the university.
The commission issued its report the following year. The
report condemned the high command of the Salvadoran
armed forces, criticized the 1991 trial in which Doe had

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4 No. 03-3671
been convicted, and recommended that he be pardoned. Id.
at 54. Within a week the government amnestied every-
one—including members of the high command, Benavides,
and Doe—who had been accused of or implicated in the
murders. On April 1, 1993, Doe was released from prison.
Four days later, having learned that members of the high
command suspected that it was he who had spilled the
beans to the Truth Commission and Father Tojeira, and
believing that he would be killed if he remained in El
Salvador, Doe fled the country with the assistance of
Jesuits, first to Mexico and then to the United States.
The immigration judge denied Doe’s application for
asylum and related relief on three independent grounds:
that Doe had “ordered, incited, assisted, or otherwise
participated in the persecution of any person on account
of race, religion, nationality, membership in a particu-
lar social group, or political opinion,” 8 U.S.C.
§§ 1101(a)(42)(B), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); that
he had been convicted of a “particularly serious crime,” id.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii), namely murder,
and that he lacked a well-founded fear of persecution
should he be returned to El Salvador, since the political
situation in that country had improved since 1993.
The murder of the Jesuit priests was persecution on
account of political opinion. In contrast, the murder of
the two women, if unrelated to their political opinions
and thus motivated solely by a desire to eliminate wit-
nesses to the murder of the priests, would not be persecu-
tion within the meaning of the asylum statute because it
would not be on account of race, religion, nationality,
membership in a particular social group, or political
opinion. Nakibuka v. Gonzales, 421 F.3d 473, 478 (7th Cir.
2005); Vasquez v. INS, 177 F.3d 62, 65 (1st Cir. 1999) (per

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No. 03-3671 5
curiam); In re McMullen, 19 I. & N. Dec. 90, 95-97 (B.I.A.
1984). It would be different had the women been murdered
because they were believed to be involved in the Jesuits’
political activities, Chavarria v. Gonzalez, 446 F.3d 508, 512-
14, 521-22 (3d Cir. 2006), or, as we’ll see, had the murders
been a necessary step in the persecution, as they would
have been had the women been shot trying to shield the
priests with their bodies. But neither point is argued, or
bears on the issues in this case; it is enough that the
murdered priests were victims of persecution.
Whether Doe “assisted” or otherwise “participated” in
the persecution of the Jesuits who were killed is a close
question. His mere presence does not seem like assistance.
He was brought in under odd circumstances that do not
suggest that he played any role in making the mission
more likely to succeed. In contrast to the members of the
Atlacatl Battalion, he was given no intelligence about the
mission, no particular assignment to fulfill, did not help
plan the mission, and did not know any of its details or
even the layout of the university. His subsequent con-
viction in the face of the acquittals of the culpable defen-
dants is consistent with his having been included on the
mission because they might need a scapegoat. True, his
presence bulked up the attacking force from 30 to 40 to 31
to 41, and in other circumstances that could be significant
assistance. But since the attack was upon eight unarmed,
defenseless civilians, his presence did nothing to embolden
the attackers or assure the attack’s success. Because his
presence did not increase the probability that the attack
would succeed, his case differs from the cases of the
former Nazi concentration camp guards, who even if
they never shot or even detained anyone contributed to
the persecution that went on inside the camps by deterring

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6 No. 03-3671
attempts at escape. See, e.g., Fedorenko v. United States, 449
U.S. 490, 512 and nn. 33-34 (1981); United States v.
Kumpf, 438 F.3d 785, 789-91 (7th Cir. 2006); Naujalis v. INS,
240 F.3d 642, 646-47 (7th Cir. 2001); see also Singh v.
Gonzales, 417 F.3d 736, 739-41 (7th Cir. 2005).
We are mindful of a dictum in United States v. Ciurinskas,
148 F.3d 729, 734 (7th Cir. 1998), to the effect that member-
ship in a Nazi police battalion tasked with exterminating
Jews was assistance in persecution even if the member
in question had not “personally participated” in the
killings carried out by the battalion. But suppose
Ciurinskas had not been a member of the police battalion,
but a soldier from a front-line combat unit that did not
engage in persecution who had been forced to accompany
the police battalion on one operation and had made no
contribution to the operation’s success. That would be
like this case and the dictum would not be applicable.
Doe’s case differs as well from Miranda Alvarado v.
Gonzales, 449 F.3d 915, 925-30, 933 (9th. Cir 2006), a case
of an interpreter assigned to interrogations in which torture
was used. See also Higuit v. Gonzales, 433 F.3d 417, 418, 420-
21 (4th Cir. 2006). Doe’s case is closer to that of “an individ-
ual who did no more than cut the hair of female inmates
before they were executed,” which the Supreme Court said
in Fedorenko “cannot be found to have assisted in the
persecution of civilians,” 449 U.S. at 514 n. 34. Or to that of
the petitioner in Hernandez v. Reno, 258 F.3d 806 (8th Cir.
2001), who, forced to be a member of a firing squad,
fired to one side of the target, and was held not to have
assisted in persecution.
But analysis is complicated by a statement in the record
from a sergeant who was one of the members of the
Atlacatl Battalion involved in the mission, confessing to

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No. 03-3671 7
having killed the two women in the room in which Doe
had seen them and adding that Doe had “ordered him to
stay there and not to allow anyone to leave the place.” The
sergeant’s statement also says that Doe had “introduced
himself to Lt. Espinoza and told him they were going
to . . . the University because he had knowledge that the
people staying there were terrorists and that they had to
be eliminated.”
The immigration judge did not mention the sergeant’s
statement, which may well have been part of the effort of
the Salvadoran military to pin the blame for the murders
on Doe and Benavides. For despite his confession, the
sergeant was acquitted. Moreover, as we’ll see shortly,
the trial was a farce and statements made in it, or during
the Honor Commission’s “investigation,” have little
credibility.
Doe testified in the asylum hearing that the sergeant’s
statement was the truth but that he (Doe) had given no
order. Doe was testifying in imperfect English and may
have meant only that part of what the sergeant said was
true but not the part about Doe’s having ordered the
sergeant to stay with the women and not allow them to
leave. The interpretation of Doe’s testimony is crucial,
since if he had carried an order to Espinoza or had
ordered the women confined to enable the murder of
the priests to be accomplished without interference, that
would constitute assistance in the attack and therefore
mark Doe as a persecutor. The immigration judge failed
to resolve this issue, though it is critical to whether Doe
assisted in persecution.
Even if Doe’s going along on the mission did not increase
the likelihood that the mission would be accomplished
and so was not “assistance” in persecution, it can be

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8 No. 03-3671
argued that his presence at the attack may nevertheless
have been “participation” in it. But the blind affirmance of
the immigration judge’s decision by the Board of Immigra-
tion Appeals would prevent our upholding the Board on
that ground. The affirmance was by a single member of
the Board, and such an affirmance merely “approves the
result reached in the decision below; it does not necessarily
imply approval of all of the reasoning of that decision, but
does signify the Board’s conclusion that any errors in the
decision of the immigration judge or the Service were
harmless or nonmaterial.” 8 C.F.R. § 1003.1(e)(4)(ii).
When a statute enforced by an administrative agency
is vague, the agency’s interpretation is entitled to con-
siderable deference. This is true of the immigration stat-
utes. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). But
despite its silence in the present case, no earlier decision
by the Board (or for that matter by the courts) answers
the question whether mere presence at the scene of perse-
cution constitutes participation in it. Fedorenko, as we saw,
indicates that mere presence is not assistance in persecution.
Our decision in Kumpf equates “personal presence” to
“assistance,” but the “personal presence” to which we
referred was not passive—was not “mere” presence.
Assistance, we explained (for we did not distinguish
between it and participation), is “not limited to personally
harming or personally shooting individuals . . . . Kumpf’s
personal presence functioned to discourage escape at-
tempts and maintain order over the prisoners.” United
States v. Kumpf, supra, 438 F.3d at 790; see also, e.g., United
States v. Friedrich, 402 F.3d 842, 845-46 (8th Cir. 2005). So
far as appears (if the sergeant’s statement is discounted),
Doe’s presence did not discourage attempts at escape,
help to maintain order, or otherwise contribute to the
persecution. See Singh v. Gonzales, supra, 417 F.3d at 739-40.

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No. 03-3671 9
But maybe participation connotes something less than
assistance. Maybe—but probably not. The Board has not
parsed the terms “assist” and “participate,” but instead has
treated them as interchangeable, In re Rodriguez-Majano, 19
I. & N. Dec. 811, 814 (B.I.A. 1988); see also In re A-H, 23 I. &
N. Dec. 774, 784-85 (A.G. 2005), as we did in Kumpf and the
Fifth Circuit did in Bah v. Ashcroft, 341 F.3d 348, 351 (5th
Cir. 2003) (per curiam). One might think participation
analogous to being a member of a conspiracy, and assis-
tance to being an aider or abettor; but these are equally
serious crimes. Petkiewytsch v. INS, 945 F.2d 871, 880 (6th
Cir. 1991), suggests, however, not implausibly, that par-
ticipation in persecution is graver than mere assistance to
the persecutors.
Liability as an aider or abettor—for it seems unlikely
that Doe could be regarded as an actual member of the
conspiracy to murder the Jesuits—requires that a defen-
dant “support, encourage or incite the commission of a
crime.” People v. Palmer, 220 N.W.2d 393, 397 (Mich. 1974).
In People v. Llanos, 570 N.E.2d 1072, 1073-74 (N.Y. 1991) (per
curiam), for example, the defendant was held not to be an
aider or abettor of drug crimes even though she had
warned a drug dealer that the police were coming. There
was no evidence that the warning had been heeded. She
shouted the warning as the police were climbing the
stairs to the dealer’s apartment, and the police entered the
apartment before the occupants could react.
There are two further wrinkles that neither the Board’s
nor the courts’ decisions point us the way to ironing out:
Doe’s role in the attempt to cover up the massacre, and his
subsequent decision to blow the whistle to the Truth
Commission and the Jesuits. The immigration judge
thought that the cover-up amounted to participation in

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10 No. 03-3671
persecution and that Doe’s subsequent whistleblowing
was irrelevant. Yet because, as we have seen, the form of
affirmance that the Board employed did not commit the
Board to adopting the immigration judge’s reasoning,
we cannot assume that his interpretation of the sig-
nificance of these two factors (a cover-up and redemptive
activity) is the Board’s interpretation. Onwuamaegbu v.
Gonzales, 470 F.3d 405, 412 and n. 5 (1st Cir. 2006); Lin v.
U.S. Dept. of Justice, 416 F.3d 184, 190-91 (2d Cir. 2005); cf.
Miranda Alvarado v. Gonzales, supra, 449 F.3d at 920-24;
Zhang v. Gonzales, 426 F.3d 540, 543-44 (2d Cir. 2005).
A persecution that is covered up is more likely to suc-
ceed than one that is not. So had Doe participated in the
planning of the cover-up before the attack, in order to make
subsequent detection less likely, he would be guilty of
having assisted in the persecution of the murdered priests.
But there is no hint of that. So far as appears, he was first
ordered to destroy incriminating documents after the
murders. Is an accessory after the fact a persecutor?
Probably not. If you help a murderer cover his tracks,
you are an accessory after the fact to the murder, People
v. Zierlion, 157 N.E.2d 72 (Ill. 1959); People v. Prado, 67 Cal.
App. 3d 267, 271 (1977), but you are not a murderer. And
recall the distinction that the cases make between persecu-
tion and killing a witness to the persecution.
As for Doe’s subsequent efforts to reveal facts about the
murders that the high command had concealed, a Second
Circuit case did hold a petitioner’s redemptive act, though
“admirable,” insufficient to override his being found to
have assisted in persecution. Xie v. INS, 434 F.3d 136, 143
(2d Cir. 2006). The court pointed out that the statute that
bars persecutors from obtaining asylum does not say that
engaging in such efforts is a possible defense. Id. at 143-44.

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No. 03-3671 11
The court added, however: “We of course have no occasion
to, and emphatically do not, conclude that redemptive
behavior is necessarily irrelevant to the inquiry as to
whether an applicant has assisted in persecution. We
decide only that the BIA was not in error when it con-
cluded that in these circumstances Xie’s behavior, even
with its redemptive aspects, amounted to ‘assistance in
persecution’ . . . and that he was therefore ineligible for
asylum.” Id. at 144. So if the Board of Immigration Appeals
thought Doe’s attenuated participation in the persecution
of the Jesuit priests outweighed by his efforts (at personal
risk) to bring the main persecutors to justice, Xie would
not stand in the way of granting him asylum.
So far we have been discussing just the immigration
judge’s first ground for denying asylum to Doe. His
second ground was that Doe had been convicted of mur-
der. The murder trial, however, was a farce. Doe’s lawyer
was on the payroll of the high command and focused his
efforts not on defending his client but on asserting the
innocence of the high command, though no members of
that body were on trial. The lawyer presented no evidence
on Doe’s behalf and conducted no cross-examination of the
prosecutor’s witnesses. The judge did not instruct the
jury on the law. The defendants other than Benavides
and Doe were acquitted even though some of them—the
actual triggermen—had confessed. And Doe was amnes-
tied while his appeal was pending—along with the mem-
bers of the high command, none of whom had been
charged. Independent observers called the trial a “simu-
lated trial,” “rigged from beginning to end;” “the whole
thing was a cover-up” and Doe’s conviction “totally
incomprehensible factually and legally.” It was a kanga-
roo court to make kangaroos blush. The UN Truth Com-

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12 No. 03-3671
mission said that Doe should be pardoned and the mem-
bers of the high command at the time of the murders
expelled from the armed forces. The commission found
that they had ordered the murders and orchestrated the
cover-up, which included Doe’s conviction.
The immigration judge declined to consider the legiti-
macy of Doe’s conviction. His ground was that a conviction
cannot be questioned in an immigration proceeding. That
is true in general, e.g., Mansoori v. INS, 32 F.3d 1020, 1023-
24 (7th Cir. 1994); Pablo v. INS, 72 F.3d 110, 113 (9th Cir.
1995); Chiaramonte v. INS, 626 F.2d 1093, 1098-99 (2d Cir.
1980), because an immigration hearing is not a suitable
forum for adjudicating a collateral attack on a conviction.
But it is not true in a case in which the proceeding
that resulted in the conviction was demonstrably, and it is
fair to say admittedly, a travesty—a parody—of justice.
Esposito v. INS, 936 F.2d 911, 914-15 (7th Cir. 1991).
The distinction is familiar from the history of habeas
corpus. Long before it was considered a routine vehicle for
challenging constitutional errors in criminal proceedings,
the Supreme Court held in Moore v. Dempsey, 261 U.S. 86,
91 (1923) (Holmes, J.), that “if the case is that the whole
proceeding is a mask—that counsel, jury and judge
were swept to the fatal end by an irresistible wave of
public passion, and that the State Courts failed to correct
the wrong, neither perfection in the machinery for correc-
tion nor the possibility that the trial court and counsel saw
no other way of avoiding an immediate outbreak of the
mob can prevent this Court from securing to the peti-
tioners their constitutional rights.” Doe’s murder trial was
of that character. We can find nothing in the immigration
laws, the purposes that animate them, or decisions by
the Board of Immigration Appeals or by the courts that

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No. 03-3671 13
would compel the denial of asylum on the basis of such a
conviction.
And had the amnesty not intervened, mooting Doe’s
appeal, his conviction would in all likelihood have been
reversed and in that event would not have barred asylum.
Will v. INS, 447 F.2d 529, 532-33 (7th Cir. 1971); Pinho v.
Gonzales, 432 F.3d 193, 214-16 (3d Cir. 2005); Marino v. INS,
537 F.2d 686, 691-92 (2d Cir. 1976); In re Rodriguez-Ruiz, 22
I. & N. Dec. 1378, 1379-80 (B.I.A. 2000); In re Roldan-Santoyo,
22 I. & N. Dec. 512, 523 (B.I.A. 1999) (en banc), vacated
on other grounds under the name of Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000). It is true that, according
to the State Department’s 2000 country report on El Salva-
dor, under Salvadoran law “a jury verdict cannot be
appealed. However, the defendant may appeal the sen-
tence to the Supreme Court for reduction. [And] a jury
verdict may be overturned by a mistrial determination
that there were serious problems with jury panel selec-
tion or errors in the trial procedure.” There were errors
galore in the trial procedure.
The last question is whether it is true, as the immigration
judge thought, that in any event Doe has no reason to
believe that he’ll be persecuted if he is returned to El
Salvador. Citing the 2000 country report, the immigration
judge described El Salvador as a “constitutional, multiparty
democracy” in which the former rebels now control a
plurality of seats in the national legislature and the
military has been curbed. He failed to mention evidence
that foretold a more ominous destiny for Doe in El Salva-
dor. The members of the high command had reacted to the
Truth Commission’s report with high dudgeon, calling
it “garbage,” a “Jesuit conspiracy,” and “biased and
insolent.” None of them was ever prosecuted, of course,

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14 No. 03-3671
but the Jesuits are still trying to bring them to justice—and
Doe is one of their main witnesses. The ARENA party,
which ruled El Salvador during the civil war, was still in
power at the time of Doe’s immigration hearing and
remains in power. Former members of the high com-
mand, though no longer on active duty, occupy senior
positions in the party. In the face of all the evidence,
ARENA continues to deny that “the distinguished gen-
erals who were members of the high command” had
anything to do with the murders.
All this evidence was ignored by the immigration judge.
The former members of the high command, with the
connivance of their political party, may be unwilling to
tolerate Doe’s assisting the Jesuits’ attempt to have them
prosecuted, perhaps before an international tribunal.
Professor Douglas Cassel, a legal consultant to the Truth
Commission and an expert witness for Doe—and a
witness whose credibility was not questioned by the
immigration judge—testified: “I have never had any
familiarity with any case where I felt more strongly
that there was a higher degree, a virtual certainty of death
or serious physical injury if people were required to return
to their homeland. These are dangerous killers down there.
They have gotten away with murder before. They are
confident that they can get away with murder again . . . .
I believe that there is a very, very high likelihood that if
either of the [Does—that is, either Doe or his wife,
whose asylum case has been severed from her hus-
band’s] were to return to El Salvador, they would be in
grave physical danger of death, torture, or other form of
serious physical injury.”
Granted, the former generals are private persons. But if
the government turns a blind eye to their procuring Doe’s

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No. 03-3671 15
murder, the murder would be persecution within the
meaning of the statute. Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000); Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2d
Cir. 1994).
We do not say that Doe has in fact a well-founded fear of
persecution if he is returned to El Salvador, but only that
the immigration judge’s unexplained disregard of the
evidence of such a fear requires, along with the judge’s
other errors, a remand. The petition for review is there-
fore granted and the matter returned to the Board for
further proceedings (including an updated assessment of
the relevant political conditions in El Salvador) consistent
with this opinion. Gonzales v. Thomas, 547 U.S. 183 (2006)
(per curiam); INS v. Ventura, 537 U.S. 12, 16-17 (2002) (per
curiam); Melendez v. U.S. Dept. of Justice, 926 F.2d 211, 218-
20 (2d Cir. 1991).
V ACATED AND R EMANDED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-07

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