Mendoza-Pablo v. Holder
2012 U.S. App. LEXIS 2392
9th Cir.2012Background
- Mendoza-Pablo, a Mam Mayan from Guatemala, fled after villagers were attacked and family members killed during Guatemala's civil war.
- He was born prematurely in a mountain refugee context and suffered severe malnutrition as an infant, with the family subsequently fleeing to Mexico and lacking lawful status there.
- In 2002 he entered the United States illegally and pursued asylum, withholding of removal, and CAT protection; initial proceedings included continuances for counsel and a requested psychological evaluation.
- An IJ denied relief, finding Mendoza-Pablo credible but insufficiently persecuted, emphasizing lack of personal witnessing, lack of expert psychological evidence, and the civil war context as non-persecutory.
- The BIA affirmed, concluding Mendoza-Pablo’s exposure was second-hand and that emotional harm lacked objective evidence; the Board found the persecution remote in time and not tied to a protected ground.
- The Second Circuit granted the petition, holding that a child may suffer past persecution where parental persecution was real and directly affected the child, and remanded for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a child suffer past persecution via indirect effects? | Mendoza-Pablo's harms to family/childhood arise from direct persecution of his mother and village. | Persecution requires direct experiences or eyewitnessing by the petitioner. | Yes; indirect effects may constitute past persecution. |
| Is a child’s persecution limited by lack of personal memory or direct witnessing? | Infants can be persecuted even without memory of events; family harm counts. | Past persecution needs direct or witnessed harm by the petitioner. | Child may be persecuted despite lack of personal memory or direct witnessing. |
| Is expert/objective evidence required to prove emotional harm or psychological impact? | Expert or objective evidence is not strictly required; credibility can sustain the claim. | Lack of objective/psychological evidence defeats the claim. | Not required; absence of expert evidence does not bar relief on remand. |
| Does the time-gap between events and present claims defeat past persecution for a child? | Continuing fear and ongoing deprivation stemming from historical persecution can satisfy past persecution analysis. | Events were remote in time and unrelated to current risk. | Remand to reassess in light of direct-family connections and ongoing effects. |
Key Cases Cited
- Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (child-persecution linked to family/community events)
- Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (persecution includes threats, violence, and harm to family)
- Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2009) (infant subjected to direct physical injury constitutes persecution)
- Lohong v. Gonzales, 484 F.3d 1173 (9th Cir. 2007) (age considerations in persecution claims)
- Singh v. I.N.S., 94 F.3d 1353 (9th Cir. 1996) (threats and violence can establish past persecution without permanent injuries)