                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0083p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                              X
                                  Petitioner, -
 LUISA MARGARITA DIAZ-ZANATTA,
                                               -
                                               -
                                               -
                                                  No. 08-3097
           v.
                                               ,
                                                >
                                               -
                                Respondent. -
 ERIC H. HOLDER, JR., Attorney General,
                                               -
                                              N
               On Appeal from the Board of Immigration Appeals.
                                No. A76 428 081.
                               Argued: December 11, 2008
                           Decided and Filed: March 4, 2009
       Before: KENNEDY, BATCHELDER, and DAUGHTREY, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Douglas S. Weigle, BARTLETT & WEIGLE, Cincinnati, Ohio, for Petitioner.
Michael C. Heyse, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Barry L. Frager, FRAGER LAW FIRM, Memphis,
Tennessee, for Petitioner. Michael C. Heyse, Mary Jane Candaux, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
                                   _________________

                                        OPINION
                                   _________________

        ALICE M. BATCHELDER, Circuit Judge. Luisa Margarita Diaz-Zanatta seeks
review of the denial of her petition for asylum and withholding of removal. An immigration
judge (“IJ”) found that, because Diaz-Zanatta had “assisted or otherwise participated in the
persecution” of others, see 8 U.S.C. §§ 1158(B)(2)(a)(i) and 1231(b)(3)(B)(i), while she was
a member of Peruvian military intelligence, she was ineligible for these forms of relief. The




                                             1
No. 08-3097                  Diaz-Zanatta v. Holder                                                 Page 2


                                                                                                           1
IJ instead granted Diaz-Zanatta a deferral of removal under the Convention Against Torture.
The Board of Immigration Appeals (“BIA”) affirmed and adopted the IJ’s opinion.
Diaz-Zanatta now petitions for review.

         The government contends that the meaning of the statutory language “assisted,
or otherwise participated in the persecution,” as written in 8 U.S.C. §§ 1158 and 1231,
is plain and unambiguous, and, in any event, is controlled by Fedorenko v. United States,
449 U.S. 490 (1981), a case involving these terms in a different statute and in the context
of the denaturalization of an individual who had been a guard at a Nazi concentration
camp. We disagree with the government’s view, and conclude that the legal analysis of
these terms when applied to an alien who is accused of having “assisted or participated
in persecution” in the context of working for a legitimate arm of a recognized
government differs materially from that analysis when applied to an alien who served
as a Nazi concentration camp guard. Because we further conclude that in applying the
persecution bar to Diaz-Zanatta, the IJ erred as a matter of law by failing to conduct the
appropriate analysis and make the necessary findings of fact, we will remand the case
for further proceedings.

                                         I. BACKGROUND

         In 1993, Diaz-Zanatta graduated from military intelligence school and became
an intelligence analyst with a division of the Peruvian military — the Servicio de
Inteligencia del Ejercito (“SIE” or “army intelligence”). The SIE was charged with
collecting intelligence about and apprehending terrorists, who were then supposed to be
handed over to the Directorate Against Terrorism (“DIRCOTE”) for placement in the
judicial system. Diaz-Zanatta was required to gather information on individuals and
pass that information up the chain of command. For example, one of Diaz-Zanatta’s first
assignments was to attend a meeting for an organization at the University of San Marcos


         1
           The relief granted Diaz-Zanatta by the BIA — deferral of removal under the CAT — is “a less
durable form of relief and is not as desirable as the other forms of relief that the immigration judge
denied.” Singh v. Gonzales, 417 F.3d 736, 738 n.1 (7th Cir. 2005) (quotation marks and citation omitted).
“Specifically, deferral of removal has two significant limitations: (1) it does not confer a right to release
for aliens in the government’s custody, and (2) it may be terminated at any time.” Id. (quotation marks,
editorial marks, and citations omitted).
No. 08-3097                Diaz-Zanatta v. Holder                                     Page 3


and report whether a particular professor had communist tendencies. Shortly after
beginning her employment with the SIE, Diaz-Zanatta became aware of conduct by other
factions of the Peruvian military that led her to believe that human rights violations were
taking place at the hands of the military, and that the suspected terrorists were not being
handed over to the judicial system for trial. The first such instance occurred in June
1993, when Diaz-Zanatta heard screams coming from the basement of the building in
which she worked.

        Diaz-Zanatta testified that she reported her concerns to her supervisor and
requested an immediate transfer. In August 1993, she was reclassified to work at a
broadcasting department of Peruvian intelligence. Over the ensuing years, Diaz-Zanatta
was assigned a number of different jobs. The precise chronology and details of these
jobs are not clear from the record, but it appears that from this point on, Diaz-Zanatta
worked as an operative for the SIE. On one of her assignments, Diaz-Zanatta was placed
at the Real Felipe Museum where she worked undercover as a secretary and provided
information to the SIE. On another assignment, Diaz-Zanatta listened to and transcribed
telephone conversations of designated individuals.

        Diaz-Zanatta claimed that she was mistreated throughout her tenure at SIE. Early
in her career, after she first expressed concern to her supervisor about the possibility that
human rights violations were taking place, the supervisor began sexually harassing her.
Throughout her career, she was sexually harassed by a number of different individuals
in the Peruvian military. Diaz-Zanatta claimed that Major Ricardo Anderson, one of the
supervisors who had sexually harassed her, came to her house, broke the windows,
pointed his gun at her sister, and then beat Diaz-Zanatta until she lost consciousness.
When she reported this to the police, the military threatened her and demanded that she
retract her accusations.

        In late 1996, Diaz-Zanatta had a discussion with an old friend, Mariela Barreto,
who was also an SIE agent. Barreto told Diaz-Zanatta that she had been a member of
a para-military group that was responsible for many deaths and disappearances around
Peru, including the massacre of a number of professors and students at La Cantuta
No. 08-3097             Diaz-Zanatta v. Holder                                      Page 4


University. Because she had felt very guilty about her involvement in these atrocities,
Barreto said, she had leaked information about them to the magazine “Si,” and now she
was suspected of leaking this information and feared for her life. Less than a month
later, Barreto was found dead, her body dismembered. About a week after that, another
of Diaz-Zanatta’s colleagues who had spoken out about the abuses of the Peruvian
military was found beaten and paralyzed. Diaz-Zanatta characterized these incidents as
creating a period of “hysteria” in the Peruvian intelligence community. It was clear that
the beating and killing of Diaz-Zanatta’s colleagues was carried out by individuals
linked to the Peruvian military and SIE. In fact, Diaz-Zanatta’s former supervisor Major
Anderson, was among those the police arrested.

       Diaz-Zanatta was deeply troubled by all of this. In an effort to substantiate the
claims of her former colleagues and to save the life of a journalist who had spoken out
against human rights abuses, she began secretly to leak information to the press. Not
surprisingly, Diaz-Zanatta also began to fear for her own life. On one occasion,
government agents attempted to run over her with a vehicle, but instead struck and
severely injured one of Diaz-Zanatta’s female colleagues. About a week later, a friend
warned Diaz-Zanatta that her life was in jeopardy, and on December 16, 1997, Diaz-
Zanatta left SIE and fled to the United States.

       Since arriving in the United States, Diaz-Zanatta has spoken out repeatedly
against the human rights violations that were carried out by the Peruvian government,
making public declarations to numerous press outlets, including CNN, CBS, ECCO, The
Miami Herald, El Nuevo Herald, London’s BBC, and Italian televison. For her efforts,
she has received death threats while she has been living in the United States, and she
fears that she would be tortured or killed if she were to return to Peru.

       Diaz-Zanatta applied for asylum and withholding of removal. The IJ denied
Diaz-Zanatta’s application on the grounds that she was ineligible for these forms of
relief because, while working for SIE, she had:

       assisted or otherwise participated [in persecution] by writing the reports
       or by transcribing the verbatim conversations that she heard and by
No. 08-3097             Diaz-Zanatta v. Holder                                      Page 5


       sending them up the chain of command. Not unlike the death camp
       guard in [Fedorenko v. United States, 449 U.S. 490 (1981)], who
       participated in the process even if he did not operate the gas chambers,
       respondent was an important part of operating this process.
Diaz-Zanatta argued that, at least initially, she did not know that such persecution was
taking place, and that the persecution was being carried out by rogue paramilitary
elements within Peruvian intelligence, not by the general Peruvian intelligence
community itself. The IJ did not make any findings on these arguments, but instead, by
equating Federenko’s holding that the statute at issue there contains no involuntary
assistance exception to the persecution bar, 449 U.S. at 512, to a holding that there is no
exception for lack of knowledge of the persecution, noted that “her knowledge was
immaterial.” The BIA affirmed and adopted the IJ’s opinion.

                            II. STANDARD OF REVIEW

       Where the BIA summarily adopts the IJ’s decision without issuing its own
opinion, we review the decision of the IJ as the final administrative order. Hasan v.
Ashcroft, 397 F.3d 417, 419 (6th Cir. 2005). “[T]he factual findings of the IJ are
reviewed under the substantial-evidence standard, and we will not reverse those findings
‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’”
Singh v. Gonzales, 451 F.3d 400, 403 (6th Cir. 2006) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). But “[a] determination based on flawed reasoning . . . will not satisfy
the substantial evidence standard, and the agency’s use of an inappropriately stringent
standard when evaluating an applicant’s testimony constitutes legal, not factual error.”
Balachova v. Mukasey, 547 F. 3d 374, 380 (2d Cir. 2008) (internal quotations and
citations omitted). “[W]e generally review questions of law de novo, but ‘defer to the
[IJ]’s reasonable interpretations of the INA.’” Singh, 451 F.3d at 403 (quoting Patel v.
Gonzales, 432 F.3d 685, 692 (6th Cir. 2005)).
No. 08-3097                  Diaz-Zanatta v. Holder                                                Page 6


                                           III. ANALYSIS

         A. Legal Standards

         Congress has prohibited the granting of asylum and withholding of removal to
any alien 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) (applying to asylum); accord
§ 1231(b)(3)(B)(i) (virtually identical language applying to withholding of removal); see
also § 1158(b)(1)(A) (making the designation of the alien as a “refugee” a condition for
granting asylum); § 1101(a)(42) (defining “refugee” as not including anyone who
participated in persecution, and using language identical to that in § 1158(b)(2)(A)(i)).

         Fedorenko remains the standard for invoking this “persecution bar” — i.e., for
deciding whether an alien’s conduct amounts to assisting or participating in persecution.
But, as the circuit courts have applied this statute to aliens who were not Nazi
concentration camp guards, two distinct requirements have emerged. First, the alien
must have done more than simply associate with persecutors; there must have been some
nexus between the alien’s actions and the persecution of others, such that the alien can
fairly be characterized as having actually assisted or otherwise participated in that
persecution. See Singh v. Gonzales, 417 F.3d 736 (7th Cir. 2005). And second, if such
a nexus is shown, the alien must have acted with scienter; the alien must have had some
level of prior or contemporaneous knowledge that the persecution was being conducted.
See Castenada-Castillo v. Gonzales, 488 F.3d 17 (1st Cir. 2007); Singh, 417 F.3d at 740.
Heretofore this circuit has not spoken to the persecution bar in circumstances other than
the alien’s involvement in prison or concentration camps, and this case requires us to
consider whether we should adopt the reasoning and the requirements set out in the cases
decided in those other circuits.2

         2
           The leading agency adjudication on this issue, In re A-H-, 23 I.&N. Dec. 774, 784 (Att’y Gen.
2005), is consistent with this approach, finding that a leader-in-exile could reasonably be considered to
have assisted or participated in persecution because he “was aware of the atrocities committed,” and
encouraged or condoned them.
         Furthermore, in this opinion, the Attorney General carved out an exception for civil war situations
that appears to apply in this case.
No. 08-3097                  Diaz-Zanatta v. Holder                                                  Page 7


         We turn first to the nexus requirement as illustrated by the Seventh Circuit’s case
of Singh v. Gonzales, 417 F.3d 736 (7th Cir. 2005). Harpal Singh was a “head
constable” in the Punjabi police force. Singh acknowledged that the Punjabi police
force, on multiple occasions, “crossed the line” and persecuted innocent civilians, but
he denied having any direct involvement with these activities.3 The Seventh Circuit
noted that the case law as it pertains to Nazi concentration camp guards is quite clear:
membership in the ranks of Nazi concentration camp guards, regardless of any direct
involvement in the atrocities carried out at the camp, is sufficient to constitute assistance
in prohibited persecution. Id. at 739 (collecting cases). But the court distinguished
Singh’s case from that of a Nazi guard: “Unlike 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.” Id. (internal citations
omitted). Accordingly, “simply being a member of a local Punjabi police department
during the pertinent period of persecution is not enough to trigger” application of the
persecution bar. Id. at 739-40. “Rather, . . . the record must reveal that the alien actually
assisted or otherwise participated in the persecution of another on account of race,
religion, nationality, membership in a particular social group, or political opinion.” Id.


         In the context of a civil war between a government and opposition groups, the BIA has
         determined that ‘persecution’ does not include ‘harm which may result incidentally’
         from, or that is directly related to, the military objectives of the armed conflict, including
         ‘the drafting of youths as soldiers, the unofficial recruiting of soldiers by force, the
         disciplining of members of a rebel group, or the prosecution of draft dodgers.’
Id. at 784 (quoting In re Rodriguez-Majano, 19 I.&N. Dec. 811, 815 (BIA 1988), and citing INS v.
Elias-Zacarias, 502 U.S. 478 (1992)). Consequently, in light of the fact that Peru is in a state of civil war
in which its democratic government faces opposition from the Shining Path rebel group, we could conclude
that Diaz-Zanatta’s activities fall within this exception and, therefore, would not amount to persecution
under the agency’s prevailing case law.
         3
          Singh admitted to some involvement:
         Yet, Singh does admit that he brought — supposedly unwittingly but certainly
         repeatedly — innocent Sikhs into the police station where they were wrongfully beaten
         by others. Singh similarly concedes that he went on nighttime raids that led to false
         charges against and beatings of innocent Sikh families. He asserts that his role in these
         raids was limited to standing guard outside homes to prevent occupants from escaping
         while other officers were unjustifiably arresting and beating the family members inside.
         Additionally, Singh states that while he was personally opposed to his police force’s
         oppression of his fellow Sikhs, he elected to continue working for the police for
         financial reasons.
Singh, 417 F.3d at 736.
No. 08-3097             Diaz-Zanatta v. Holder                                      Page 8


at 740 (emphasis in original). And the court noted that Fedorenko, the seminal case on
matters of persecution assistance, had acknowledged that persecution cases outside of
the context of Nazi prison guards might present more difficult problems with regard to
what actions would constitute assistance. Id. at 739.

       We read Singh to stand for the proposition that in order for the persecution bar
to apply, there must be some actual connection between the actions of the alien and the
persecution of others. Singh’s mere membership in the Punjabi police force would not
suffice because it would have been entirely possible for him, as head constable, to
engage only in the traditional, legitimate law enforcement activities of the police force.
In that case, although other members of the Punjabi police force may have persecuted
civilians, there would not necessarily have been any link between Singh’s actions and
any such persecution, and it would be impossible to characterize Singh as having
actually “assisted or otherwise participated in the persecution of another.”

       Other circuits also require some actual connection between the actions of the
alien and the persecution of the victims. The Eleventh Circuit, in Chen v. U.S. Attorney
General, 513 F.3d 1255 (11th Cir. 2008), after reviewing Fedorenko and the
development of the law in this area, held:

       The standard for determining whether an asylum applicant is ineligible
       for asylum and withholding of removal due to assistance or participation
       in persecution is a particularized, fact-specific inquiry into whether the
       applicant’s personal conduct was merely indirect, peripheral and
       inconsequential association or was active, direct and integral to the
       underlying persecution.
Chen, 513 F.3d at 1259. The Second Circuit drew a similar distinction:

       Where the [alien’s] conduct was active and had direct consequences for
       the victims, we concluded that it was ‘assistance in persecution.’ Where
       the [alien’s] conduct was tangential to the acts of oppression and passive
       in nature, however, we declined to hold that it amounted to such
       assistance.
Xie v. INS, 434 F.3d 136, 143 (2d Cir. 2006). “[T]he mere fact that [the alien] may be
associated with an enterprise that engages in persecution is insufficient by itself to
No. 08-3097             Diaz-Zanatta v. Holder                                      Page 9


trigger the effects of the persecutor bar.” Gao v. United States Attorney General, 500
F.3d 93, 99 (2d Cir. 2007) (noting that Fedorenko itself, albeit in dicta, had disapproved
of the “guilt by association” approach; and making it clear that something more than
mere association with persecutors is required).

        Ultimately, the Seventh Circuit applied the persecution bar to Singh because he
had, at least indirectly, participated knowingly in the persecution of others.

        [Singh] took innocent Sikhs into custody during that period and
        transported them to the police station, where he knew they would be
        subjected to unjustified physical abuse. Further, Singh participated in
        raids on the homes of innocent Sikh families, guarding those homes to
        prevent escapes while other officers were inside arresting and beating
        family members without cause.
Singh, 417 F.3d at 740. Singh’s role in these activities “qualifies as actual assistance or
participation in persecution” the Seventh Circuit said, even though Singh claimed that
he did not learn until after the fact that the Sikhs whose homes he was guarding were
innocent. Id. (It is worth noting here that Singh did not claim that he did not learn until
after the fact that these Sikhs were being beaten, only that he did not know they were
innocent.) The court found a sufficient nexus between Singh’s actions and the
persecution of others to permit the persecution bar to be applied to him. Although the
court did not expressly address any knowledge requirement, it is clear that the mere
effect of Singh’s actions was not sufficient; his knowledge of the physical abuse was
essential.

        The First Circuit explicitly established the knowledge — or scienter —
requirement in Castaneda-Castillo, 488 F.3d at 22. Castaneda was a lieutenant in the
Peruvian military who had led one of four patrol units in an operation that turned into
a massacre of dozens of innocent villagers. Id. at 19. While two patrol units entered a
village to conduct a search for Shining Path members, Castaneda’s unit set up position
some three to five miles outside the village, with instructions to block any suspects from
escaping that way. Id. Castaneda’s unit never entered the village and he testified that
he was unaware of the massacre until almost three weeks later. Id.
No. 08-3097             Diaz-Zanatta v. Holder                                    Page 10


       Noting that no one denied that the massacres were in fact persecution, the First
Circuit held that, although Castaneda’s blocking of escape routes had the objective effect
of aiding in the massacre of the villagers, the persecution bar should not apply unless
Castaneda had some prior knowledge of an intent to murder the villagers or some
contemporaneous knowledge that the murders were being committed. Id. at 20-22.
Specifically, the court announced:

       We hold that presumptively the persecutor bar should be read not to
       apply to Castaneda 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.
Id. at 22 (editorial marks omitted). In other words, the IJ could not avoid the issue of
whether the alien had the requisite knowledge merely by focusing on the objective effect
of the alien’s actions. The court emphasized that, on remand, the IJ could find that the
alien’s story was not credible, and that he had, in fact, known that the massacre was
going to take place. The court also noted the possibility of “gray-area cases,” such as
those involving willful blindness, strong suspicion, or some other “in between”
assessment, which might prove more difficult. Id. at 21.

       The Second Circuit has also adopted the knowledge requirement. In Gao, the
court held that “the persecutor bar requires some level of culpable knowledge that the
consequences of one’s actions would assist in acts of persecution.” Gao, 500 F.3d at
103. And in Balachova, 547 F.3d at 385, the court held that “notwithstanding the fact
that the persecutor bar does not include a voluntariness requirement, the alien must have
sufficient knowledge that his or her actions may assist in persecution to make those
actions culpable.”

       Finally, the asylum petitioner bears the burden of demonstrating that the
persecution bar does not apply to her. In order to be eligible for asylum, the alien must
be a refugee, 8 U.S.C. § 1158(b)(1)(A); the alien bears the burden of establishing that
No. 08-3097              Diaz-Zanatta v. Holder                                      Page 11


she is a refugee, 8 U.S.C. § 1158(b)(1) (B)(i); but the provisions of § 1158(b)(1) “shall
not apply to an alien if the Attorney General determines that (i) the alien . . . assisted, or
otherwise participated in . . . persecution,” 8 U.S.C. § 1158(b)(2)(A)(i). For asylum
applications filed after April 1, 1997, the denial of asylum is mandatory “if section
[1158(a)(2) or 1158(b)(2)] of the Act applies to the applicant.” 8 C.F.R. § 1208(13)(c).
And “if the evidence indicates that one or more of the grounds for mandatory denial 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).
Similarly, the petitioner seeking withholding of removal bears the burden of proving that
the persecution bar does not apply to her. 8 C.F.R. § 1208.16(d)(2).

        B. Applying these Standards to Diaz-Zanatta

        In the present case, the IJ’s opinion did not consider whether any evidence in the
record established a nexus between the intelligence gathered by Diaz-Zanatta and the
persecution of individuals at the hands of the Peruvian military, or whether Diaz-Zanatta
had prior or contemporaneous knowledge of any such persecutions. We begin with the
question of nexus.

        The government could establish this nexus with evidence that Diaz-Zanatta
provided intelligence about an individual who was subsequently persecuted. But not on
this record. In this record, the government has shown: (1) that Diaz-Zanatta collected
intelligence information and provided that information to her supervisors in the SIE
(which is a division of the Peruvian military), to be handed over to the DIRCOTE, for
the purpose of prosecuting terrorists; and (2) that other elements of the Peruvian military
have engaged in persecution. More to the point, while some elements of the Peruvian
military undoubtedly engaged in persecution, the government does not dispute that,
overall, the Peruvian military engaged in legitimate activities as well. Absent some
evidence linking Diaz-Zanatta’s information gathering to persecution, we cannot say that
she “actually assisted or otherwise participated in the persecution of another,” Singh, 417
F.3d at 740, or that her actions were anything more than “tangential to the acts of
oppression and passive in nature,” Xie, 434 F.3d at 143.
No. 08-3097               Diaz-Zanatta v. Holder                                   Page 12


          Instead of making any findings with respect to such a nexus, the IJ reasoned that
Diaz-Zanatta had assisted or otherwise persecuted others by “transcribing the verbatim
conversations that she heard and by sending them up the chain of command.” The IJ
concluded that, “[n]ot unlike the [Nazi] death camp guard in Fedorenko, who
participated in the process even if he did not operate the gas chambers, [Diaz-Zanatta]
was an important part of operating this process.” But the IJ’s rote reliance on Fedorenko
here is misplaced for the same reasons that the Seventh Circuit found it inappropriate in
Singh. The Peruvian military intelligence community and the Punjabi police force are
in this respect similar: while some members engaged in some persecution, each engaged
in traditional, legitimate activities as well. The kind of information Diaz-Zanatta was
gathering was being gathered for legitimate (lawful) purposes to be used in courts in
fighting the terrorists who were seeking to overthrow by force the democratic
government of Peru. As the Seventh Circuit recognized, such organizations stand in
stark contrast to Nazi concentration camps, “whose complete existence was premised
upon the persecution of innocent civilians.” Id. at 439. Because Diaz-Zanatta’s mere
employment in the Peruvian military intelligence community does not permit the
conclusion that during that employment she assisted or otherwise participated in any
persecution, it is not sufficient to justify applying the persecution bar to her. Rather, to
justify the application of persecution bar to Diaz-Zanatta, the IJ must find that the record
demonstrates some actual connection between Diaz-Zanatta’s actions and the
persecution(s) in which she is alleged to have assisted or otherwise participated. See id.
at 440.

          The IJ found “instructive,” although not binding, the case of Higuit v. Gonzalez,
433 F.3d 417 (4th Cir. 2006), in which the Fourth Circuit found that the persecution bar
applied to an alien who had been a military intelligence officer for the Marcos
government in the Philippines. But Higuit must be distinguished here, because the
alien, Luis Higuit, had stated, both in his asylum application and in his testimony, “that
individuals he investigated were imprisoned and killed.” Id. at 418. Accordingly, the
government was able to show conclusively an actual connection between Higuit’s
No. 08-3097             Diaz-Zanatta v. Holder                                    Page 13


activities and the persecution of others, and the IJ was therefore correct in concluding
that the alien’s “intelligence activities led to the persecution” of many individuals. Id.

       Unlike Higuit, Diaz-Zanatta did not testify that any individuals she investigated
were persecuted, and the record does not contain evidence to support the assumption that
they were. The government does not appear to have produced, and the IJ certainly did
not point to, any evidence indicating that Diaz-Zanatta gathered any information about
anyone known to be or later identified as a member of Shining Path or any other terrorist
organization, or that after Diaz-Zanatta provided intelligence information about any
particular individual, that individual was persecuted. Rather, the IJ simply accepted that
it was enough that the evidence in the record established that the Peruvian military
persecuted prisoners suspected of being Shining Path collaborators. But this not
sufficient to establish any connection between Diaz-Zanatta’s actions and the
persecution of anyone; under this reasoning, if Diaz-Zanatta had collected intelligence
solely on teachers in Peru, and no one but lumberjacks had been persecuted by the
military, Diaz-Zanatta would nonetheless have assisted or participated in persecution.

       Nor did the IJ examine whether Diaz-Zanatta had either prior or
contemporaneous knowledge of the persecution being carried out by the military and that
the information she gathered would be used in furtherance of it. Despite Diaz-Zanatta’s
uncontradicted testimony that she did not know how that information was being used,
and that she was not aware of the persecution of any individual about whom she had
gathered information, the IJ concluded that “[Diaz-Zanatta’s] knowledge is immaterial.”
We are persuaded, however, that for the reasons described by the First Circuit in
Castaneda–Castillo, 488 F.3d at 20-21, the persecution bar may be applied to Diaz-
Zanatta only if she had some level of prior or contemporaneous knowledge that the
information she was gathering would be or was being used to persecute individuals.
Like the First Circuit, we can envision “gray-area cases,” such as those involving willful
blindness, strong suspicion, or some other “in between” assessment, see id. at 21, and
we recognize that the persecution bar’s scienter requirement may well be met in some
of these instances. But we need not delve into that issue in this case because the IJ has
No. 08-3097                   Diaz-Zanatta v. Holder                                                  Page 14


made no finding with respect to Diaz-Zanatta’s level of prior or contemporaneous
knowledge.

         In concluding that Diaz-Zanatta’s knowledge was “immaterial,” the IJ appears
to have equated unknowing assistance to involuntary assistance. The IJ cited Fedorenko
for the proposition that “there is no basis for an involuntary assistance exception
regarding persecution of others.” Even assuming this is an accurate characterization of
Fedorenko,4 it has no applicability to Diaz-Zanatta because she never argued that she
provided involuntary assistance.5 Because unknowing assistance is entirely different
from involuntary assistance, the IJ erred to the extent it relied on Fedorenko to disregard
Diaz-Zanatta’s scienter argument.

         To apply the persecution bar to deny Diaz-Zanatta asylum or withholding of
removal, the IJ must determine from the evidence in the record that during her
employment with the Peruvian intelligence service, Diaz-Zanatta supplied information
to the military that was actually used to persecute some individual or individuals, and
that Diaz-Zanatta knew that the information she supplied would be used or was being
used to persecute those individuals. It is not enough that information collected by Diaz-
Zanatta and relayed by her to the SIE was used to persecute individuals if Diaz-Zanatta
had no prior or contemporaneous knowledge of that; neither is it enough that Diaz-
Zanatta knew that persecutions were taking place, if information Diaz-Zanatta collected
and relayed to the military was not used in those persecutions.




         4
            This might be overly broad. See Hernandez v. Reno, 258 F.3d 806, 813 (8th Cir. 2001) (noting
that “[a]lthough it ruled that there was no condition of voluntariness in the provision, the Court indicated
that all aspects relevant to an individual’s conduct must be examined in order to determine whether he
assisted in persecution”).
         5
          We note that the Supreme Court is considering whether the persecution bar applies to individuals
who are compelled to assist or otherwise participate in the persecution of others. Negusie v. Mukasey, No.
07-499 (oral argument was held November 5, 2008). We do not expect the Court’s decision to affect Diaz-
Zanatta’s case in a material way, however, because she has never argued that she was compelled to work
for Peruvian intelligence. In fact, she testified that the reason she did not leave military intelligence earlier
was because she had signed a seven-year contract.
No. 08-3097            Diaz-Zanatta v. Holder                           Page 15


                                IV. CONCLUSION

       For the foregoing reasons, we GRANT Diaz-Zanatta’s petition for review,
VACATE the decision and orders of the IJ and BIA, and REMAND to the BIA for
reconsideration and further proceedings consistent with this opinion.
