*1 413-414, Wilson, S.Ct. 519 U.S.
882). that, on the therefore hold based
We us, no Fourth Amendment
record before Accordingly, we affirm occurred.
violation judgment of conviction.
So ordered. MEJILLA-ROMERO,
Selvin Asael
Petitioner, HOLDER, Jr., Attorney
Eric H.
General, Respondent.
No. 08-2336. Appeals, States
United Court
First Circuit. Nov. 2009.
Submitted April
Decided *2 as a
grаndmother child Honduras the mistreatment he suffered at the hands of antagonists neighbor two and a street —a “persecution.” They —amounted *3 in had found addition he failed to the mistreatment “on account show was grounds of the five protected of’ and show requisite failed to connection to government action or inaction existed. Thus, past-persecution he had not met the prong. rejected Mejilla-
The BIA and IJ also Romero’s assertions that he suffer fu- will if ture returned to Honduras gang on account of his resistance to mem- an bership, ongoing grand- feud with his Willshire-Carrera, Kelly, Nancy J. John neighbor’s family, mother’s possi- Immigration and the Harvard Clinic homeless, bility may that he be although Legal were on Greater Boston Services They he has some there. also both petitioner. brief for eligi- found that he had failed to establish bility withholding for of removal or relief West, General, Tony Attorney Assistant under Both the BIA CAT. and IJ Grimes, Division, E. Senior Civil James record, all considered the evidence of as Counsel, Immigration Litigation Office of we, say have and we cannot the record Minick, Attor- Litigation, and William C. compels us reach different conclusions Immigration Litigation, were ney, Office legal requirements asylum, to the for as respondent. on brief removal, withholding of and CAT relief. LYNCH, Judge, Before Chief SELYA deny Mejilla-Romero’s petition. We STAHL, Judges. Circuit I. LYNCH, Judge. Chief child, Mejilla-Romero As a lived with Mejilla-Romero, age then Selvin Asael grandmother his small Honduran eleven, illegally entered the States United Mejilla-Romero town of Arimis. While Brownsville, inspection and without near growing up, he had a series of bad Texas, July eigh- 2002. He is now neighbor encounters with a named “Hu- years petitions teen old. He for review of Mejilla-Romero’s bert.” Hubert called Immigration the Board of a final order of “[cjommunists” said, at- (BIA) Appeals denying application his family, they “[p]eo- tack on the were removal, asylum, -withholding pro- dying, starving.” are ple that are Hu- Against Tor- tection under Convention Mejilla-Romero threw stonеs at bert also (CAT). ture petition- and once threw machete that hit Judge leg, leaving BIA er’s scar. On another Immigration The and the visible (IJ) occasion, Mejilla-Rome- rejected the claims on a number of Hubert attacked machete, home with a independently grounds. They grandmother’s sufficient ro’s claims, rejected past persecution destroyed garden. Mejil- which and he once his that when lived with his la-Romero claims the shock from the at- asserted garden ailing tack on the sent his aunt to both his own testimony and in state- hospital, ultimately where she died. ments he psychologist made to a whom he in support saw application. his Mejilla-Romero great also had difficul- report That inwas evidence and was re- males, gang young aged ties with a ferred to the IJ his decision. older, fifteen and who came to Arimis from occasions, another town. On several States, While in the Mejilla- United Mejilla-Romero gang waited for outside of again father, Romero also met with his attempted money. to steal school and his who later returned to Honduras. Though pushed him members and once father, grandmother, and members of house, leaving threw him from a small him grandmother’s family currently reside entangled disentangled wire. He was *4 in he fears that he will be “uncle,” by a man he called his may who if homeless he returns. July not have been a blood relative. In a Federal authorities Mejilla- served affidavit, Mejilla-Romero stated that Romero with Appear Notice to day boys” these “older also threw snakes at after he country. entered this There were him several times and that he “feared that proceedings hearings spread out over him; they sexually target” wanted to a number of years Mejilla-Romero as no further offered details and did not de- made legal efforts to achieve status. scribe these incidents in his be- October after it had been determined Mejilla-Romero fore the IJ. believes that that he was ineligible for Temporary Pro- all of these incidents wеre motivated Status, Mejilla-Romero tected filed ap- an wanting members’ to recruit him plication asylum, for withholding of remov- Mejilla-Romero into gang. their concedes al, and CAT relief. neither he nor his ever contact- ed police or other authorities about In hearings before an July IJ between any of these incidents. 2005 and Mejilla-Romero November testified in support of application his
Additionally, Mejilla-Romero’s one of relief. He was then between thirteen and uncles was killed Mejilla- when years fourteen old. The IJ also reviewed years Romero was five old. A Honduran documentary evidence and heard testimo- court issued an arrest shortly warrant af- ny Mejilla-Romero’s from mother and ma- death, ter stating his that his killer had ternal aunt. The mother was not Hon- been indicted “for the crime of assassina- duras at the time of the incidents with tion” calling for his arrest “as expe- petitioner and had no firsthand knowledge ditiously possible.” A copy of this of the encounters. The aunt had left Hon- warrant was in evidence before the IJ. duras in 1998. She appear did not Although Mejilla-Romero does not recall scheduled cross-examination on what was murder, the circumstances of his no evi- to have been day her second testimony; compelled dence the conclusion that there the IJ took her absence into account. The any was connection petitioner’s between IJ considered the testimony of both the mistreatment and his uncle’s death. aunt, mother and the opinion as his shows. Mejilla-Romero is eighteen years now old, having spent years the seven since his At the close of proceedings in November illegal entry in the Boston area with his the IJ “given observed that mother. country, Mejilla- While amount of material and evidence” it Romero and have also been sense to “ma[de] do a written decision.” violence, victims of traumatizing discussed In a twenty-page written decision on Hubert’s, 5, 2007, Mejilla- the IJ allowed brother a relative of which March asylum application file his late1 occurred after she had left Honduras. It Romero to rejected application for relief. also cited her that she would not living consider elsewhere in Honduras in Mejilla-Romero’s own The IJ deemed part “because she is uncertain as to where that he had a testimony credible and found she would reside.” subjective returning to Honduras. fear of found, however, Mejilla-Rome- specific decision The IJ IJ’s detailed incon- past persecu- ro not either sistencies in the testimony. had established mother’s For instance, on tion or his mistreatment based the IJ noted that the mother had result, statutory grounds. initially Mejilla-Romero’s As a grand- one of the said presumption persecution telephone no future mother had told her conver- Mejilla- Mejilla-Romero arose. The IJ further found that sation that was at risk Romero had not carried his burden of from Hubert and gangs, but later testi- showing objectively reasonable fear of fied that she why learned reasons Mejilla-Romero statutory Mejil- future left Honduras when grounds. la-Romero upon described them to her country. arrival in this The IJ further comprehensively The IJ reviewed the *5 “initially observed that the mother testi- mother, testimony Mejilla-Romero’s of de- belonged organization fied that she to [an voting pages more than four of the deci- ‘Lined,’ called] but later testified that ‘Lin- thoroughly reciting sion to her account. was an organization wealthy ed’ individ- Mejilla-Romero’s mother had left Hondu- uals not ‘poor people’ who did want such as in fearing ras for the United States [Mejilla-Romero’s grandmother] to reside violent, sexually boyfriend that her abusive on their land.” kill if she remained in that would her boy- that country. No evidence connected The IJ also summarized the aunt’s testi- Mejilla-Romero’s mony, fa- family being friend —who was not which described her Mejilla-Romero “targeted” dispute ther —with the encounters over a land and refer- applied asylum, by had. The mother for but enced the murder of her bi’other a application neighbor, consequence her was denied. As of March as a of such dis- Temporary putes. she had Protected inconsistencies in Sta- The IJ noted testimony, observing tus. aunt’s that she had family stated that her was a member of Among by addressed “Lined” also group but that the had tar- description IJ was mother’s of her geted man her and who family’s history ‘persecuted’ on “being murdered her brother had been member of their in ongoing basis involvement organization. The aunt never ap- property disputes.” The decision not- IJ’s plied Temporary but received ed several incidents of serious violence Protected Status against described the moth- er, including killing Mejilla-Romero’s of her step-father The IJ found that a hired “soldier” and the murder of her mother’s was “often unclear” States, "extraordinary age arriving upon 1. The IJ found that circum in the United com justified Mejilla-Romero's deadlines, stances” failure to pliance subsequent filing and timely asylum application file his within one submission of "voluminous documentation” year entry to the United States. See 8 support asylum application, ap of his 1208.4(a)(5). particular, § C.F.R. the IJ plication not be time-barred. would that, light Mejilla-Romero’s young ruled harassment, unpleasantness, inconsistencies above by “numerous and marred Application INS, [own] to her compared suffering, as even basic Nelson v. “generally it still corrob- but that Asylum,” Cir.2000), F.3d and consist of narrative. The Mejilla-Romero’s orated” systemic mistreatment rather than a series explicit make credibil- not otherwise IJ did Gonzales, of isolated events. Bocova v. the mother’s or ity findings regarding (1st Cir.2005).” Against testimony. aunt’s backdrop, the IJ held the encoun- Mejil- took into account explicitly The IJ to no more ters described “amount[ed] at the time these events “age la-Romero’s than a series of isolated altercations with a “[bjehaviors occurred,” noted that ... disgruntled neighbor group associate with may typically not adult boys younger who bullied children.” The may produce harm persecution or serious explicitly psychologist’s considered the IJ damage physical psychologi- lasting report2 but concluded that the trauma Me- in a child and thus constitute cal trauma jilla-Romero experienced had was not reject any not persecution.” The IJ did shown to be connected to Hubert or the testimony on Mejilla-Romero’s the basis of gang, particularly given Mejil- the trauma overly having simplistic. it basic or been young la-Romero suffered as child trav- Mejilla-Romero’s allowing for Even eling unaccompanied to the United States. special credibility and the consideration as He found insufficient evidence of causation children, Mejilla- found that the IJ experiences from the in Honduras as to experiences Romero’s bad to the level of past persecution. rise doubt, troubling,” while “without a did not found, IJ further an independent as “persecution.” rise the level of The IJ ground, there was no evidence that holdings qualify per- cited our that “to *6 secution, person’s experience Mejilla-Romero physically pun- must rise “was ever report report was The based on assessment The also discussed incidents involv- 2005, shortly Mejil- conducted in June before ing Mejilla-Romero’s family two weeks earli- IJ, sup- before the la-Romero's Boston, housing project er in their observ- port application asylum. A of his for staff mother, ing Mejilla-Romero, that his psychologist Cambridge in the Health Alli- threatened, siblings other had been and that Program ance's Latino Mental Health evaluat- was "terrified” of violence in this Mejilla-Romero presenting "significant ed as country. The recent rounds of violence in- symptoms anxiety,” noting that he had partner being cluded his mother’s attacked nightmares running about from those who broken, having with a bat and his arm struggled want to harm him and that he with vandalized, being bang- car and men past intrusive memories of traumatic events. ing apartment on their dоor with bat. The preoccupied grandmother, He about was his family was moved to a different location. not, point, whom he had at that heard from psychologist Mejilla- The that concluded report The "[t]here since 2002. said is no presented symp- Romero "a constellation of psychotic symptoms,” evidence of "[h]e is toms indicative of ... Post Traumatic Stress oriented,” "good alert and and that he had (PTSD).” report Disorder The did at- not control,” impulse "very good well as in- tempt specific to attribute the PTSD to events. sight problems.” into his In addition to the Mejilla-Romero It concluded that was affect- experiences gang, with Hubert and the post-traumatic ongoing symptoms ed re- report also noted an incident in Honduras in sulting experiences from the "traumatic he Mejilla-Romero which said had live exposed years was to in his first eleven of life snake thrown at him and other occasions on "extremely possible in Honduras” that the which he claimed to have fended off violent report specify past sexual assaults. did not events” of two weeks had led to "an attempted who had thrown the snake or symptoms.” exacerbation of his sexually assault him. Mejilla-Romero found that possessing a or character- IJ could miti- ished belief (em- gate by “safely the risks he faced sought to overcome.” relo- istic that others added). cating]” elsewhere Honduras. The IJ phasis rejected the future claim and Mejilla- that The IJ also determined likely it petitioner the claim that was objec- to establish an Romero had failed subject would be to torture. tively fear that he would suffer reasonable addition, IJ determined Me- Mejilla- persecution in Honduras. future jilla-Romero’s carry failure to the “lesser Romero testified he feared he would be proving burden” of his claim meant living on the streets and would be killed he had failed to meet the more exacting “boys” neighbors.” and “the requirements withholding of removal. observed, he also testified that аs the IJ The IJ also concluded that although there grandmother living his with “various Mejilla-Romero could be a risk that would in Honduras and that his father relatives” encounter violence in country had returned to as well. The sufficiently threat was not extreme to Mejilla-Romero noted that had offered IJ qualify him for CAT relief. his father and no “as whether ... grandmother have encountered rejected Mejilla-Romero’s The BIA ap- ... gangs difficulties with ‘Hubert’ or with peal two-page opinion in a Sep- issued on Mejilla- may who still wish to recruit” agreed tember 2008. The BIA with Accordingly, Romero. the IJ found that Mejilla-Rome- IJ’s determination Mejilla-Romero’s “testimony own ro had “failed to meet his burden of estab- —com- forthcoming failure to be bined lishing persecution, past or that he would about the whereabouts of his father— persecuted be if returned to Honduras on greatly objective- whether ] [he] account of statutorily protected one undercut ly ‘living on the streets’ or future grounds, fear[ed] tortured the future.” It persecution at the hands of ‘Hubert’ and also cited two additional BIA decisions gangs.” the ... “squarely pre- address[ed]—and Mejilla-Romero the claim that clude[d]” independently likely The IJ found it Me- persecuted had been on the basis of his jilla-Romero reside with “could either membership group in a social that consist- grandmother father or or relocate” to an- *7 young ed of men who had gang resisted successfully other area and avoid Hubert recruitment. gangs. and the The IJ cited to several reports the record that reflected Hondu- The BIA affirmed the IJ’s conclusion “pervasive gang problem” Mejilla-Romero’s ras’s and other that the actions of “dis- gruntled neighbor youths social issues. the IJ also noted and a of specific Department Amnesty persecution.” State did not rise to the level of decision, reports, by peti- separate International submitted As a it basis for its tioner, Mejilla-Romero gov- emphasized which reflected the Honduran that also had allеged persecution ernment’s commitment to “children’s not shown his involved rights emphasized government and welfare” “some connection action or inaction, government’s progress protected ground Honduran inves- related to a for victimizing asylum,” required by tigating crimes children. Since as our caselaw. The Arimis, BIA agreed holding Hubert’s lived and a also with the IJ’s Department report Mejilla-Romero’s satisfy indicated that failure to the re- State gang membership primarily quirements asylum necessarily Honduran “is for meant centers,” large stringent he had failed to meet the more [two] confined urban 70 removal, withholding finding past persecution and it A gives
standard for
rise
present
presumption
that his failure to
“evi-
to the
of a
affirmed
well-founded fear
establishing
likely
persecution.
it is more
of future
dence
Orelien v. Gon
zales,
(1st Cir.2006).
67,
subject
he would be
to tor-
than not that
467 F.3d
71
arises,
upon
presumption
return to Honduras” rendered When that
ture
the burden
for
relief.
ineligible
government
him
CAT
shifts to the
to show that
changed circumstances have eliminated the
petition for review followed.
This
petitioner’s fear
persecution
or that he
may practicably
persecution
avoid future
II.
by relocating
part
to another
of his coun
single-member
review both the
We
Id.;
try.
see
also
8 C.F.R.
and the IJ’s
BIA decision
decision. See 8
1208.13(b)(l)(i).
§
1003.1(e)(5);
§
C.F.R.
Hernandez-Bar
9,
Ashcroft,
rera v.
373 F.3d
20
Cir.
any showing
past perse
Absent
2004).
engage
We do not
de novo re
cution,
applicant may “prevail
on an
view of the record but instead evaluate
claim
... a
proving
well-found
Mejilla-Romero’s challenges to the IJ’s
persecution
ed fear of future
independent
findings
and BIA’s
of fact under the “high
Orelien,
presumption.”
at
F.3d
ly deferential” substantial evidence stan
so,
71. To do
he must demonstrate that
Gonzales,
Nikijuluw
dard.
v.
427 F.3d
subjectively
his fear is both
genuine and
(1st Cir.2005).
accept
We must
objectively reasonable.
Id.
they
BIA
findings
long
IJ and
“so
substantial,
reasonable,
are ‘supported
The term “persecution” has not
probative
evidence on the record con
statutorily
been
precedents
defined. Our
”
(quoting
sidered as a whole.’
Id.
INS v.
finding
hold that a
of past persecution
Elias-Zacarias,
478, 481,
U.S.
“requires
totality
that the
a petitioner’s
(1992)).
S.Ct.
also Dias Gomes v.
566 F.3d
the IJ’s and BIA’s determi
(1st Cir.2009).
Mejilla-Romero’s
nations that
experiences
that the
Mejilla-Romero asserts
IJ
persecution
to the level
not rise
did
evidence.
that he
by
concluding
substantial
BIA erred in
had
supported
and
were
Mejil-
BIA considered
IJ and the
prove
Both the
the “on ac
not met his burden
neighbor
with his
encounters
la-Romero’s
argues that the BIA
prong.
count of’
He
of his
the source
gang, which are
and the
of the attacks
mischaracterized the nature
Both determined
persecution.
claims of
overlooking a
family,
him and his
against
altercations,
un-
whilе
isolated
that these
dispute
political
decades-old
purportedly
fortunate,
sufficiently severe to
were not
family
neighbors,
and its
as
between
finding
a
required for
high
bar
meet
that
types
gangs
of violent
well as
upholding
caselaw
Our
past persecution.
and BIA did
operate in Honduras.
IJ
perse-
about what constitutes
findings
BIA
Mejil
the claim that the treatment
reject
that conclusion.3
supports
cution
had a
la-Romero received
Honduras
sympathy
peti-
for
one can have
While
sup
and that was also
political motivation
tioner,
basis on which
find
that is not a
This, too,
by substantial
ported
evidence.
to find
compelled
BIA
were
the IJ
ground on which
provides
independent
Bocova, 412 F.3d at
they did.
other than
deny
petition.
we must
psychological-
The IJ also found
263.
establish,
not
much
The evidence does
to be
not been shown
evidence had
effects
Mejilla-
that
compel, the conclusion
less
mistreatment of
connected to the
causally
necessary connec-
Romero has drawn the
opposed
as
Mejilla-Romero
grounds. Mejilla-
the five
causes,
to tion to one of
and was insufficient
to other
testimony contained no clear ex-
persecution.
Romero’s
establish
for the motivation
Hubert’s
planation
determi-
supportable
and BIA’s
The IJ’s
certainly
not link it to
did
behavior
not suffer
Mejilla-Romero did
nation that
Hubert’s
any political feud between
by itself to
is sufficient
from
aunt,
with his
and his own. Hubert lived
reaching the
without
deny
petition,
neighboring property.
who owned
against
actions
question of whether
only that he had
Mejilla-Romero testified
on account of one of
him were motivated
“[cjommu-
heard Hubert call his
grounds.
statutorily protected
the five
“[pjeople
describe them as
573, nists” and
See,
Mukasey,
Khan v.
549 F.3d
e.g.,
(1st Cir.2008).
starving.”4 Nothing
are
dying,
are
576-77
old,
mugging
knifepoint, the bomb-
years
a
at
Mukasey,
44-46
Ravix v.
552 F.3d
3. See
church,
episodes
Cir.2009)
ing
petitioner's
(1st
(holding that incidents includ
and threw stones
which crowds "threatened
being
a stone” and
ing
"struck in the head
worshipers”
petitioner]
at
and her fellow
[the
gunpoint
rise to the
did not
threatened
past persecution);
not rise to the level of
did
persecution);
v.
past
Santosa Muka
level of
Bocova,
(holding that two
Cir.2008) (hold
73 cases). argument ignores First targeted And specifically was Mejilla-Romero law, in membership pro expressly a which is to the con- basis of his Circuit on the comprised of individ group” trary. explicitly tected “social We have affirmed the joining gangs squarely is who resisted uals visibility inquiry relevance of the social to precedent BIA on the defini precluded Holder, group analysis. Faye v. 580 social correctly BIA The group.” tion of “social Scatambuli, Cir.2009); 558 F.3d S- See Matter precedent. cited to its legal There no error in of F.3d at 59-60. was E-G-, (declining Dec. at 594-95 24 I. & N. analysis. the BIA’s gang to member “persons find resistant to fails, well, for Petitioner’s claim as of a group purposes a ship” social found, Mejil BIA another reason. As the asylum petitioner’s persecution Honduran la-Romero did not show that the Hondu S-E-G-, determination); 24 I. & Matter way in government any ran was involved (BIA 2008) (holding N. Dec. 583-88 neighbor in either the incidents with his group “consisting] proposed that a social gang, his encounters with the street have been sub young Salvadorans who purported “persecution.” bases efforts criminal ject to recruitment any present Nor did he evidence6 join to ... but who have refused gangs, government unwilling Honduran was visibility’ d[id] the ‘social test and fail[ed] fact, prosecute his assailants. he testi particular group”). a social qualify not as that, knowledge, fied to his no effort had analy- Mejilla-Romero argues that this been made to contact the authorities about as a matter of law to sis was insufficient received, the mistreatment he and there that, any in judicial review and permit no authorities evidence were event, group the BIA’s definition of social aware of the attacks. Failure to inform law argu- first legal based on error. The is peti of threats or attacks a enforcement merit, utterly without as we detail ment is tioner claims to have suffered is material argument, the second below. As to rejection government to the of claims of these BIA decisions erred asserts that complicity past persecu participation or visibility analysis” a using “social See, Gomes, F.3d at e.g., tion. Dias “abandoned, explanation” without (holding petitioners’ failure inform artic- group analysis of social first method Brazilian threats police “sever[ed] Acosta, 19 I. & N. Dec. ulated Matter of any action or inaction of the threats from 1985). (BIA too, argument, That Brazil”); government Castillo-Diaz on which the without merit. decisions (1st Cir.2009) Holder, v. 562 F.3d 27-28 explained the reason for the BIA relied peti determination that (upholding Id’s body They actions. are built on a BIA’s report rape tioner’s failure to oc precedent integrated BIA consider- years old curred when she was fifteen visibili- “particularity” ation of and “social in precluded government her claim of determinations, group into social ty” attack, noting in the while IJ’s volvement greater specificity to “giv[ing] means of govern consideration of evidence “that the group, which was the definition of a social power El ment of Salvador has the Matter [Acosta].” first determined S-E-G-, rape signif- cases and attaches (collecting prosecute 24 I. & N. Dec. at 582 them, with citations to the authorities opening is devoid of citation to 6. His brief point. appellant parts the record on this See of the record on which Rios-Jimenez (1st Cir.2008) Principi, ”) 28(a)(9)(A)) 39 n. 5 R.App. (quoting Fed. P. relies.' ("[Alppellant’s argument '[the] must contain (second original). alteration in appellant’s and the reasons for contentions *11 74 Mejilla-Romero’s a for warrant his arrest.7 rape”); conviction for penalty
icant Galicia, (finding peti- emphasis at 448 the flaws in 396 F.3d Honduras’s criminal to contact authorities after justice tioner’s failure not the system does alter fact that holding peti- basis for that beating was a supported the IJ’s determination was tioner not show that the harassment “did substantial evidence. government was the or a suffered IJ’s BIA’s findings The and that control”). not group could government the Mejilla-Romero a lacked well-founded urges Mejilla-Romero that failure to fear persecution of future were also sup contact should not bar his claim authorities ported by substantial evidence. As the IJ past he claims to fall into persecution; held, Mejilla-Romero’s the fact that fa exception. argues an He that efforts to ther, grandmother, his and members of unnecessary are when involve authorities grandmother’s his reside Hondu they it is clear from record that “would objective ras undercuts reasonable unwilling” or help. have been unable Mejilla-Romero’s ness of fear that he S-A-, 22 See In re I. & N. Dec. 1335 persecution would as a suffer “street (BIA 2000). argument again The misses “at child”8 or the hands of ‘Hubert’ and supportably the mark. The BIA found gangs.” Mejilla-Romero the ... did not Mejilla-Romero that what suffered did not testify as to whether of his relatives persecution amount to and further that he who Honduras faced ongoing remained government did not un- establish difficulties Hubert the gangs. unwilling to help able or him. a petitioner’s family fact that mem recognized The IJ there had been “se- bers “continue to live in safety” relative govern- vere of the Honduran critici[sm]” country of origin is relevant to an antigang ment’s But measures. the IJ finding IJ’s of failure to establish a well- record, specific reports also cited in the persecution. founded fear Budiono v. which govern- indicated the Honduran Cir.2008); Mukasey, F.3d ment combating gang was committed to INS, see Aguilar-Solis also v. 168 F.3d welfare,
violence promoting child (1st Cir.1999) (“Without 565, 573 some ex Mejilla-Romero’s testimony well as that he planation, fact that close relatives con if did not know incidents with Hubert peacefully tinue to live in the alien’s had been reported police and that homeland undercuts the alien’s claim that no one had contacted the authorities re- return.”). persecution awaits his experiences garding his with the gang. Moreover, addition, although Mejilla found the IJ did not discuss the IJ point, safely Romero could record evidence showed that relocate elsewhere to Honduran authorities had avoid violence. previously Mejilla-Romero’s inter- ar family’s behalf, vened on indicting gument government Me- failed to pro jilla-Romero’s uncle’s and issuing safely killer a duce that he evidence could relocate copy 7. The "particular IJ’s decision included of the ran children constituted a social warrant documentary in its recitation of the group” purposes determination evidence. explaining “[pjoverty, homelessness youth vague far too are all encom- analyze eigh- There is no need to whether passing pe- to be characteristics set the teen-year-olds are "street children” or wheth- protected group rimeters within the er "street children” suffer scope Immigration and Naturalization Gonzales, Escobar Honduras. Cf. Act”). (3d Cir.2005) (rejecting argument by younger petitioner that homeless Hondu- father, photograph deportation misplaces Honduras within elsewhere *12 Mejilla-Romero’s leg, affida- the scar on Having failed to show proof. of burden numerous vits on conditions it was past persecution, that he suffered country reports, psychological and the to demonstrate burden Mejilla-Romero’s far-reaching This consider- evaluation. not avoid future that he could sufficiently ation the IJ of the record is Honduras. part to another of by moving facilitate our review of the decision clear to Orelien, at 71. Substantial 467 F.3d See that and demonstrates to the court the IJ’s the IJ’s and BIA’s de- supported evidence in the ruling supportable had a basis rec- so, had not done since that he terminations Gonzales, Pan v. 489 ord as a whole. See Hon- could avoid both internal relocation (1st Cir.2007) 80, (“Although an F.3d 87 IJ “primarily gangs, which are duran street may simply ignore not substantial testimo- areas, urban particular confined” to ” documentary she need not proof, nial and ‘Hubert,’ “all oc- which “difficulties every piece of evi- discuss ad nauseam Arimis.”9 in and around curred long given dence. So as the IJ has rea- made that the IJ failed argument An is soned consideration to the evidence as a in the record be- the evidence to consider whole, supportable findings, made and ade- testimony. Mejilla-Romero’s own yond quately explained reasoning, her no more written decision lengthy the IJ’s (internal omitted). exigible.”) citation thoroughly re- The IJ proves otherwise. Mejilla-Romero’s related asser Mejilla-Romero, of viewed BIA fully tion that the failed to articulate mother, and his aunt. decision also the basis for its decision is without documentary evidence listed the extensive Mejilla-Romero presented essen merit. that the IJ had record and noted arguments the BIA re tially the same all and all “considered nature of the threats he faced garding the documentary support evidence in street neighbor from his from requests for relief [Mejilla-Romero’s] BIA not now makes to us. The “is removal.” every in minute detail required to dissect documentary attention to the The IJ’s complaining party that a ad contention analysis of in his apparent evidence was only frame “its decisiоn vances” and need ex- Mejilla-Romero’s claim. The decision reviewing to allow a adequate in terms with, cited, on a engaged and relied plicitly agency has court to conclude exhibits, Mejilla- including: range wide thought about the evidence and issues asylum, his moth- application for conclusion.” Romero’s and reached reasoned 128; Raza, asylum, Lopez for his birth certif- F.3d at see also application er’s (1st Holder, icate, 460-61 aunt’s and uncle’s death Perez v. 587 F.3d copies of his Cir.2009). adoption The BIA’s of the IJ’s certificates, to the pertaining documents asylum granted only argues “is that the BIA that humanitarian Mejilla-Romero also (internal grant by failing suffering”) him extraordinary discretion abused its cases of discretionary asylum, "a doc omitted). humanitarian quotation marks even in the absence sometimes available trine we have found that substantial evi Because persecution.” of future Bollanos of a threat supports the IJ’s and BIA's determina dence Gonzales, (1st Cir.2006); v. 461 F.3d Mejilla-Romero’s did mistreatment tion 1208.13(b)(l)(iii). § Howev C.F.R. see also 8 persecution, his “claim for dis not constitute er, explicitly requires a threshold such relief necessarily cretionary also fails.” Akin relief showing past persecution. 8 C.F.R. Gonzales, 44 n. 6 423 F.3d 1208.13(b)(l)(iii); § also Waweru v. Gon see folarin Cir.2005). zales, (1st Cir.2006) (noting (albeit inevitable) of certain opinion points elaboration not decisions about controlled, which facts drew reasonable in- adequate basis for provided more than facts, applied ferences from those review. proof. well-settled Sitting burdens Mejilla-Romero cannot meet Because fact, might trier of I not have found the asylum, stringent standard less controlling same and might facts have application of his arguments support my dissenting reached the conclusion necessarily withholding of removal fail. *13 Yet, that proposes. brother is irrelevant See, Orelien, F.3d at 73. too is e.g., So agency to the task at The saw hand. the anything that the record devoid of would it differently: еmphasized matter the facts compel a fact-finder’s determination that controlling; squarely it found ad- Mejilla-Romero likely “more would than rejected dressed squarely petition- and the if not ... removed” to Hondu- be tortured arguments; er’s made judgment and a 208.16(c)(2). § ras. 8 C.F.R. which, unsympathetic, however fell within by strict We are bound standards of the In supportable universe of outcomes. grant may petition review. not the We words, agency job. other the did its The compels unless the a conclusion evidence and, lead opinion recognizes reality this to by different that reached from the IJ. We mind, my to is faithful the dictates of the engaging are forbidden from in de novo standard of review. acting though review or as we were the IJ In analysis, the “it is duty last the of all hearing the case. justice care, courts of to take gen the The petition for review is denied. good eral community, of the that hard cases do not bad law.” Lopez make de SELYA, Judge, concurring. Circuit Gonzales, Hincapie pleni- This is a hard case. The record is (1st Cir.2007) (quoting Campbell Lord and, by weight tudinous more giving to Paul, 111). East India Co. v. 7 Moo. P.C.C. certain weight gaps facts and less to in the counsel, by join Guided I wise the evidence, drawing and inferences accord- opinion by lead Judge authored Chief ingly, easy it paint heart-wrenching Lynch judgment and in the concur picture of petitioner’s plight. the The dis- court denying petition for the review. senting opinion job a masterful does just painting picture. STAHL, such a Judge, Circuit dissenting. courts, But reviewing there is a rub: I majority dissent the because has re- cases, immigration not luxury peated do have the the same mistakes of the Board of (BIA) of choosing at which empha- will facts to Immigration Appeals Immi- (IJ) size or which gration inferences to draw. Judge by These failing to consider are agency, functions for the ap- the complete record and misstating the propriate requires standard review relevant facts case. of this high degree agency’s of deference to the Thе majority commits two related er- choices. First, majority rors. overlooks that case, In this agency the IJ BIA addressed the denied raised, fairly permissible application theories made considering the actual without BIA, Though majority, entry and the inated with a original IJ data error in his Mejilla-Romero, refer petitioner as Selvin Appear Notice to and was never corrected petitioner’s Celvyn Mejia name is Azael government despite problem. notice of the Apparently Romero. orig- incorrect name protections character- tled to the afforded refu- Both courts put claim he forth. gees. alleging past perse- claim ized merely dispute among on a
cution based majority’s decision also raises a boundaries. This property over neighbors larger By approving concern. the admin- both administrative resulted because error failure to istrative courts’ consider the sub- understanding of the their courts limited Celvyn’s asylum stance of claim and Celvyn’s claim to the oral basis of factual essentially adopting approach this same just Celvyn gave when he was itself, majority obligation avoids the testifying about years age, system thirteen court to treat children who our young when he was a refugee protection events that occurred seek with the care and fact, law, required by attention administrative years to eleven old. child of five guidance and international norms. This supporting evidence submit- the extensive in a failure has resulted decision that is Celvyn’s claim supports case ted incorrect legally both inflicts *14 ac- persecution violent on that he suffered price human on a child11 terrible who has at- imputed political opinion count of an protection. turned to the United States family’s him because of his tributed to ad- long-standing land activism. Where Below, I first recount the factual basis of a decision that ministrative courts render claim, I Celvyn’s asylum drawing as must asylum the basis of an Second, dоes not address complete from the record. I ex- here, claim, they as did we are applicant’s plain required that a remand is because con- failed to at a minimum to remand for the administrative courts issue a required actually merits on the claim by pre- decision put the actual claim forth sideration of Third, by Celvyn. explain sented I how cannot, majority as the applicant. the We majority misap- the and the courts below here, in the simply review the facts does plied asylum Celvyn’s the standard to on a ratio- first instance and affirm based Fourth, explain I claim. how record by agency. nale not considered compels evidence the conclusion that Cel- Second, majority if is correct even vyn persecution suffered on account of his failure remedy that it can the lower courts’ why family’s political activities and he the substance of claim to consider granted asylum. therefore should be in the by conducting a review of the facts I. The Factual appeal, majority’s at- Basis first instance Celvyn’s Claim tempt'to review the record is ineffective. majority reference to
While the makes complete The facts as drawn from supporting extensive evi- some Celvyn’s family record are as follows. has the basic dence it still mischaracterizes activism in long political been involved claim, limit- largely of his content Arimis, province rural in the their town of a ing analysis its to the oral Olancho, Honduras, and has suffered child, traumatic stress diagnosed post decades of on account of (PTSD), testifying and about disorder activity. Celvyn’s step-grandfather, Angel very Herrera, he Lin- founding events that occurred when was a member of ed, organization A review of the record as a whole a local activist of landless young. Celvyn peasants organized is enti- land takeovers compels the conclusion (INA) eighteen, qualifies vyn, still Immigration and National Act who is now 11. The 101(b)(1) 101(c)(1), §§ person INA and a "child” as an unmarried such. Seе defines 1101(b)(1) (c)(1). meaning § twenty-one years age, Cel- under U.S.C. per- family reported legally ting. actions which were the murder to and other authorities, leg- who issued a criminal in- Honduran land reform missible under dictment, Lincol but never arrested Godo or oth- the time. was named islation of Coleman, erwise resolved the case. a The earliest who was land- after Lincoln memory Celvyn testified about was province in Olancho and ex- reform leader witnessing body the dead of his uncle with secretary League of the of Peas- ecutive head, a significant machete wound to the in the 1970s. The Lincol ants of Olancho five-year-old traumatic event for a child. wealthy opposed were activists area. The land- land-owning elite memories, Celvyn From his earliest re- supported by owners were aided neighbors harassing threatening calls military. In police local political for their views. When Angel group was killed of soldiers three, Celvyn was his mother fled to the in Lincol and because of his involvement United escape brutally States abusive the land reform movement. an- relationship with a member of one of the member, other brother-in-law wealthy local Celvyn families. was left to sister, Celvyn’s mother’s was also killed elderly grandmother live with his and his for his involvement the Lincol move- young two cousins in the home in Arimis ment. appropriated that sat on land. Though very young, possessed age-appropri-
Celvyn’s grandmother was an active and understanding ate political divisions of Lincol visible member and the Liberal *15 family between wealthy his and their Party, political party supportive a leftist neighbors. rights peasants. land for landless In the 1970s, she was involved with Lincol In experi- addition to the trauma that he through Angel. sup- her husband She also five, age enced at the when he witnessed ported group during land invasions and body, his uncle’s dead Celvyn was also by delivering selling other actions and food repeatedly physically taunted and assault- brought and sweets to the activists. She by neighbor ed Mejia, named Hubert mother, young daughter, Celvyn’s her who was a member of wealthy the same along with her when she sold the food. family that owned the land on which Cel- years Several Angel’s after her husband vyn’s grandmother was squatting. Hubert murder, Celvyn’s grandmother put Celvyn would throw stones at when he was practice by squatting Lincol beliefs into on walking outside and on two occasions he piece unused of land the town of brutally family Celvyn, attacked when it, building Arimis and her home on which grandmother, his and his two young cous- greatly antagonized wealthy, her land-own- ins were alone in the house. Hubert ing neighbors. She flew the red Liberal wielded a during machete both attacks. home, Party flag above that while her Though he did not understand the nu- wealthy neighbors flew the blue National ances, Hubert, Celvyn perceived that Party flag. him, other neighbors like did not like Cel- vyn’s family political because of and eco- family continued to targeted be disputes nomic noted that during the uncle, —he Celvyn’s its activism when Carlos attacks Hubert called him grand- and his Augusto Erazo, Romero who was involved mother “people “Communists” and Lincol, was murdered 1996. He dying, starving.” are that are (“Godo”) by Gregorio Mejia, was killed from cousin that owned the Hubert’s first violent assault on the fam- squat- ily land on which Celvyn mother was occurred when was about ten because, many assaults on the old, the record is unclear on though years attack, police anything wouldn’t do here.” Hubert During “[t]he point. that, living, “Where I was Celvyn and He also testified machete and chased wielded home, police family’s no force.” The re- there was around the grandmother his pro- that the authorities would not hitting Celvyn. belief punching peatedly was a conclusion based on dec- Celvyn, leav- tect them weapon his Hubert threw experience. The landowners who inch scar on ades of large, eight ing a family’s work with Lined en- opposed of the scar was entered leg. photo A right joyed support police, the active of the local into evidence. military government soldiers had assault, safety for his after this Fearing Celvyn’s step-grandfather. When killed arranged for Cel- Celvyn’s grandmother family reported the uncle’s murder in young cousins leave vyn and his two never the authorities arrested travel to the United States. Honduras and prosecuted respon- the landowner who was ap- his cousins were Celvyn and Indeed, Department sible. of State Salvador, presumably in El prehended trend, noting confirmed this in its 1999 authorities, and returned to Salvadoran Country Report that the “local landown- return, Celvyn’s Following Arimis. his province ers” Olancho had formed him did not kept indoors and grandmother vigilante groups,” “large-scale apparently school, for fear of more go let him resistance from the without authorities. to her activ- opposed violence from those short, Celvyn Celvyn In felt under early when ism. home, eleven, siege, confined to his fearful of grandmother’s fears were sub- neigh- instance of violence from again when Hubert attacked the next stantiated time, a machete and sure that no one could or would family. This Hubert used bors house, it, him. I destroy protect put the entire As he would be “[I]f to ransack and house, I leaving and the interior of the assume that the one slashing windows *16 side, neighbors get He used his machete to cut would me on one the house. also destroy agriculture veg- neighbors get other would me on the other down and Celvyn, surrounding the house. side.” etation cousins grandmother, young his and his Celvyn The violence inflicted on because during at home the attack and feared
were family’s of his land reform activism was their lives. The violence toward the only physical not the and emotional trauma young chil- elderly grandmother and three young boy experienced in Arimis. As dren, along with the destruction of the shows, the record Honduras suffers from a home, overwhelming that when were so gang problem. Though he tremendous (his sister) mother’s saw the Celvyn’s aunt eight years about or nine very young, aftermath, a attack she suffered heart old, Celvyn attempted faced recruitment A days four later. death certificate died by gang older members his town. He aunt, evidence, into admitted this recruitment and suffered ter- resisted 2, 2002. April showed that she died on ribly Gang members harassed result. attack, Shortly Celvyn’s this second after school, way physi- him on his to and from successfully Celvyn sent to grandmother him, cally bullied and tried to steal his the United States. him, money. They also threw a snake at testified, assaults from appropriately in an and he had to fend off sexual Celvyn also members. In the worst way, gang neither he nor his the same child-like incident, Celvyn brought members to police report to grandmother called 80 house and threw him that he roof of a small suffered on account ground, where he became political opinion imputed
down toward the to him based on family’s in barbed wire. He could not his entangled long-standing land reform ac- They and believed he had been left tivism. free himself considered whether According Celvyn’s to Celvyn past persecution there to die. treat- suffered on ac- he has visible scars from ing psychologist, dispute they count of a with what termed a right arm. “disgruntled neighbor.” the barbed wire his back This was not Cel- friend, Fortuitously, family Celvyn vyn’s Worse, whom they claim. drew exclusively “Uncle,” happened upon him and applicant’s called from the child oral testimony to him freed from the barbed wire. determine supporting the universe of facts his claim. Given that the agency failed to Finally, Celvyn and his mother testified address the actual claim and put evidence Celvyn if consistently that were to return by Celvyn, forth this case should be re- to Honduras he would have no one to care manded for consideration of the merits for him. All of his immediate and extend- I.N.S., the actual claim. See Gailius v. ed members are either dead or live (1st Cir.1998) (“‘[A] 44 F.3d re- States, exception the United with the viewing ... judge court must propri- biological father grandmother. As ety of solely by action [administrative] father, Celvyn for the repeatedly stated ” (altera- grounds invoked agеncy.’ probing under cross-examination that his in original) tion (quoting Chenery SEC v. dad was an absentee father who never 194, 196, Corp., 332 U.S. 67 S.Ct. or cared for raised him and would not take (1947))); L.Ed. 1995 Citizens Awareness addition, care of him now. though his Network, States, Inc. v. United deported father had been Cir.2004) (“It is a bedrock Celvyn neither nor his mother knew where principle may that a court only uphold an or any he was had had contact him administrative action on a rationale ad- departure. since agency vanced in the administrative Celvyn’s As for grandmother, she went proceeding.”). hiding into year she sent impossible It is anywhere to find in the Celvyn to the United States. The very opinion BIA’s abbreviated a discus- did not hear from years her for four until actually sion of the claim by Celvyn made one of aunts traveled to Hondu- consideration of sup- his extensive ras in find her. According porting evidence. In its opinion, which affidavit, supplemental mother’s *17 text, amounts to page one of substantive the aunt grandmother found that the had provides the Board purport- two sentences Arimis, returned to living the same ing explain to the factual Celvyn’s basis of land, house on appropriated the was elder- political persecution claim, which are ill, ly and and feared for her life. The worth quoting full: grandmother reported wealthy the addition, grandmother’s his neighbor, neighbors had made it they clear that were Hubert, destroyed grandmother’s his opposed to her return to Arimis.
house respondent and would call the II. Decisions Below names and throw stones at him. The respondent why did not know Hubert A review of the decisions issued things. did such IJ and the BIA shows that these adminis- trative bodies failed to render a decision This beggarly effort to set forth the basis actually the claim put by Celvyn, forth Celvyn’s persecution claim does not rise resulting persecution. minimum that we should ex- The above ex- to the bare responsible cerpt a administrative also pect only from shows IJ drew grossly The BIA misstates the Celvyn’s testimony analyze court.12 from oral to Cеlvyn’s claim, claim refers content past persecution ignoring pow- to Celvyn’s oral discern to supporting erful evidence introduced at tri- Board support factual for his claim. The Further, al.13 the IJ’s conclusion about political persecution went on to dismiss Celvyn’s past persecution claim starkly sentence, opining that “the claim in one simply shows that he did not consider the disgruntled neighbor ... did actions of Celvyn actually put claim forth: The persecution.” not rise to the level of were, these events While without a absolutely analysis BIA no provided doubt, troubling, they amount to no claim, meaning is no Celvyn’s actual there more than a series of isolated alterca- majority the merits for the decision on disgruntled neighbor. tions with a review. Celvyn’s This conclusion does not address longer than the opinion, though The IJ’s Finally, claim or evidence. the IJ stated BIA’s, did not ana- is no better. The IJ that: Celvyn’s claim—that he was lyze whether There is no evidence in the Record of imputed politi- on account of an persecuted Proceedings that the Respondent was family’s opinion cal based on his decades physically ever punished possessing level of land reform activism—rose a belief or characteristic that others statutory political asy- definition sought to overcome. opinion la- lum. The section the IJ’s stunningly This inaccurate statement re- Persecution” reveals that the beled “Past simply veals that the IJ did not consider Celvyn’s limited the factual basis of IJ Celvyn’s imputed political assertion of following: claim to the family’s opinion his evidence of his dec- “Hubert,” Respondent The testified that ades-long resulting per- land activism and neighbor his former de- secution. home and stroyed grandmother’s machete, frequently with a
windows
though the
plainly
Even
IJ’s decision
“Communist,”
called him a
threw stones
claim,
does not address
the ma-
occasion,
him,
him in
at
and on one
hit
jority
good
thinks the U nonetheless did a
leg
with a machete.
(1)
job
enough
because he
narrаted the
Thus,
ignored
imputed po-
the IJ
content
mother’s
opinion
opinion
litical
claim and the extensive evi-
section of the
entitled “Testimonial
(2)
Evidence”,
family’s
decades of activism
included a list of the
dence of
Gonzales,
majority's
important point
13. Because
12. citation to
this is such
Raza
(1st Cir.2007),
my
supports
persecution dissent, pended gives Asylum in full to zero A. Standard actually that the IJ considered indication majority’s Because the discussion of the political opinion Celvyn’s imputed claim or political asylum standard for incomplete, is into account the evidence that he took I relate full applicant test below. An of that support claim. The IJ submitted may eligibility establish asylum based by not сonsidering committed a basic error past persecution alone. See 8 CFR actually put by forth appli- the claim 1208.13(b). § finding A of past persecu- cant, majority and the has chosen to ex- tion gives presumption rise to a that the Quite simply, Celvyn cuse the IJ’s failure. applicant also has a well-founded fear of was entitled to receive merits decision on persecution. future See id. the claim and evidence he submitted to the 1208.13(b)(1). § presumption This can Thus, immigration court. remand is nec- by be rebutted a showing that either essary. changed circumstances have rendered the fear of future moot or that III. The Merits of relocating to part country another Asylum Claim applicant can persecution. avoid future objection, My preliminary as noted 1208.13(b)(l)(i). § See id. pre- Even if the above, Celvyn’s claim is that did not re- sumption rebutted, successfully ap- below, requir- ceive due consideration thus (1) plicant may granted asylum still be if ing a remand. even if the courts applicant compel- has demonstrated a decision, below issued a valid merits I ling reason for being unwilling or unable to believe a review of the entire record shows return to his country arising out of the support there is not substantial evidence to (2) severity of past persecution, Celvyn’s asylum the denial of claim. And applicant has established a pos- reasonable though highly our standard of review is sibility that may suffer other serious cases, deferential in the evidence harm upon removal to country. his home presented in this compels case indeed 1208.13(b)(l)(iii). § See id. Celvyn conclusion that past perse- suffered review, As for our standard we review cution on account of an imputed political the factual findings below for substantial opinion. The administrative courts below evidence, meaning we must ask whether opposite reached the conclusion relying the lower courts’ conclusions are “sup exclusively upon the oral of a reasonable, pоrted by substantial, and young diagnosed pro child with PTSD rather bative evidence on whole, than the record considering the record as a considered Holder, as a whole.” strongly supportive which is Rivas-Mira v. of his claim of (1st persecution. F.3d 2009 WL Relying on oral at *4 Cir. 2009) added). ignoring February (emphasis while other strongly supportive Im precisely portantly, record evidence was “deference the basis of is not due where our remand in Ashcroft, findings Mukamusoni v. and conclusions are based on in Cir.2004), 120-21 or presumptions and ferences that are not rea Further, should be here ignor- sonably record, as well. grounded viewed as *19 ing Celvyn’s persuasive INS, supporting Cordero-Trejo evi- a whole.” v. 40 F.3d
83 added). Cir.1994) (1st other forms of violence (emphasis rapes and where he feared for his life.”14 le we have found reversible Importantly, only BIA error where the and factual gal asylum, When children seek the courts testimony oral respondent’s on the drew approach particular must their cases with supporting evi significant ignored and First, variety of care for reasons. as dence, respondent’s affidavit. including the Department case law and U.S. of Justice Ashcroft, 390 F.3d v. See Mukamusoni reflect, policy experiences a child traumat Cir.2004). 110, 120-21 ways ic that events are different from adult, likely
an
and a child is less
to under
explain
stand and to be able to
the reasons
Age
of the Re-
B.
and Mental Status
upon
him.
violence has been inflicted
spondent
See,
I.N.S.,
e.g.,
Civil
F.3d
Celvyn’s testimony credi-
The IJ found
(1st Cir.1998) (dissenting opinion); Kahss
of
quality
the informa-
ble.
(9th
I.N.S.,
ai v.
Cir.
relay in
oral
Celvyn was able to
tion
1994);
Asylum
“Guidelines
Children’s
by
signif-
testimony was undermined
three
Claims,”
Justice,
Department
U.S.
INS
factors, none of which was considered
icant
(“1998
Policy and Procedure Memorandum
First, Celvyn’s
BIA.
testi-
by the IJ or the
Memo”),
10, 1998,
DOJ
December
avail
that occurred when
mony recounted events
(“The
at
able
Although the same definition of a refu- and Public Policy Analysis of American gee applies to all regardless individuals Asylum Legal Standards and Impact Their age, of their in the examination of the Unaccompanied Minor Asylees,” 24 factual elements of the claim of an unac- (2000) Hamline L.Rev. 13-17 child, (outlining companied particular regard protections and assistance afforded to given should be to circumstances such as law, children in other areas of including stage child’s of development, his/her contract, tort, law). and criminal possibly knowledge limited of conditions country of origin, signif- and their case, In Celvyn’s the IJ16 and the BIA legal icance to the concept refugee limited thеir accounts of the basis of Cel- in-depth report 15. An from Harvard “Why they Universi- asked your did kill uncle?” The ty seeking asylum on minors in the United responded, child my grandmoth- "To make provides examples States anecdotal of this Though er sad.” may eligible children be difficulty: asylum, providing sup- the evidence to children, port may impossible. presenting For claim be their own evidence As an- asylum can be asylum difficult. One other officer officer re- commented on the compelling challenge counted a involving relying case memory, a 10- on children’s year-old girl whose father worked "A lot of what for a sticks isn’t what we need.” corrupt politician. States,” "Seeking Asylum Because the father Alone in the United Schmidt, knew compromising information about J. Bhabha & S. June available politician, parents both were assassinated www.humanrights.harvard.edu/images/ Alone_US_Re- employed while the father was still pd£_files/Seeking_Asylum_ politician. interview, During her port.pdf. orphaned girl primarily focused on the computer analysis past In his persecution that her bring father would is- home sue, from political work rather IJ stated that he than on the considered the fact con- destroyed may experience text that had family. children Fortu- nately, ways parents’ news that are accounts of the different from assas- adults. Flowev- er, supplied by supportive supposed the IJ’s adults consideration of sination — age who realized meaningless given their relevance—existed to IJ did not claim, corroborate story. Celvyn's and fill out the imputed persecution child's address case, Quality another upon Assurance and drew testimony, child’s oral Training Officer recalled that a ignored child was evidentiary support the extensive *21 basic, very say testimony only might to the oral one “child- asylum claim vyn’s boy. Limiting review by young this given like,” understanding political of the con- of the record would portion a small to such engulfed text of the trauma that his young see Mukamu- case, be inexcusable this, Despite life.19 ig- three courts have soni, 120-21, particu- it is but nored the voluminous additional evidence involving a minor. so in a case larly explains great political detail oral Reading transcript Celvyn causes of the violence that and his exactly it testimony, one finds that what IJ, BIA, family experienced. expect thirteen-year-old from a one would now, extent, large majority to a have when he discussing events that occurred quoting contented themselves with from descrip- years to eleven old. His was five Celvyn’s simplistic testimony, using oral of violence is multiple tion of incidents quotations purportedly such to show that expla- he can offer basic simplistic;17 really there is no meat on the bones of his why violence was inflicted nations for such family;18 asylum he shows claim. This strikes me as particu- him and his upon effect, despite Celvyn's age, systematic about the violence inflicted on his for his claim. carry asylum required him to his bur- family, explanation larger the IJ but his con- through It oral alone. den his age development: text is limited his enough, majority appar- not be as the should Q: Okay. your grandmother And did you tell believes, merely ently state he has for the IJ why your mom and father came the United age account. Where the written taken into States? plainly that the IJ neither con- decision shows They through thing A: went the same I went imputed political applicant's the child sidered Before, through. when she was in opinion claim considered his extensive nor family, boys, neighbor, they also the evidence, supporting accepting value at face family would bother our and that's the age reason the IJ's assurance that he has factored in them, placing I all of all amounts to form over substance. almost of them came here. Q: through require IJ demonstrate Okay. you would that the Who told that? analysis that this factor was taken into his My A: mother. She knows that. She told biga account. There is difference between me that. Using magic these two. words should not be enough. me, happened A: When I told her what thing happened she told me the same to me. example, relating neighbor’s 17. For one of his against attacks himself and violent machete cross-examination, 19.Again govern- on elderly grandmother, Celvyn’sstory-telling his attorney probed ment the "on-account-of” el- very simple: asylum Celvyn ement of the standard. knew Q: you? Did he ever harm neighbors that his called him and his A: Yes. but, example "Communists” in a textbook Q: things you? What kind of did he do to imputed political purely what constitutes a One, once, day, running I was be- A: this opinion, he stated that he did not even know hitting he was me and he threw a cause word what that meant: machete at me. Q: happened And what when he threw the Q: Okay. you why And do know Hubert you? machete at your grandmother? didn't like A: He hit me here. A: No. Q: why you Do know said Communists? grabbed it A: He the machete and he threw what A: I don't know that word means. against up, ended me and the machete ends Q: you yourself Okay. And it did did hear up way. you tell what he someone that's said? cross-examination, A: He stated Communists. example, during 18. For Q: you And don't know what he meant why Celvyn explain almost all of his tried to that? fled Honduras. He members had something clearly that there was A: No. understood respondent discrepancies that the larly troubling given contained Ms. Del Car- who, by age child virtue of his men young testimony speak is a Romero’s more to carry cannot development, simply whether Ms. Del Carmen Romero was oral based burden credible in her own Application Asy- *22 lum, alone. Respon- rather than whether the credible, especially dent is since her tes- Evidence The Record C. timony generally otherwise corroborated section, I expand upon Respondent’s testimony. In the the As the in- 1,800- contained in the sources of evidence discrepancies consistencies and con- record, plus page ig- evidence that was in tained Ms. Del Carmen Romero’s tes- BIA and inadequately nored the IJ and timony do not affect the heart of the by majority. considered the Respondent’s asylum clаim or his overall narrative of “Hubert’s” actions or the Testimony 1. The Mother’s Oral “Maras,” they actions of the therefore testimony Celvyn’s explained mother’s prompt do not a negative credibility Celvyn, by age, what virtue of his could finding for Respondent. the (a) short, explained not. the mother findings IJ here made on sepa- three severity pervasive the and nature of the (1) credibility questions: rate the credibili- Celvyn experienced, trauma which ty claim; of Romero to asylum her own (b) goes past persecution; how the on- (2) impact of Romero’s inconsistencies going experienced that he trauma was the (3) Celvyn’s on credibility; and the relia- family’s political activism, result of the bility of Romero’s evidence itas related to element; goes which to the on-account-of Celvyn’s the factual basis of asylum claim. (c) government how the unwilling I take in each turn. protect family, or unable to and at times complicit carrying even out the First, the IJ found that Romero’s testi- persecution. mony contained inconsistencies between placed what she asylum her own written
In order that Celvyn to conclude did not application, which was filed present sufficient compel evidence to what orally she testified to at qualifies Celvyn’s conclusion that he asylum, for asylum majority hearing in explain away validity ques- must 2005. There is no powerful Romero, evidence tion that contained this is true. as she testimony. explained herself, mother’s It does so attempted misin- get work terpreting the findings IJ’s as to the credi- papers authorization after she arrived in bility reliability of the mother’s testi- paid United States. a “notary pub- She mony. important Because this is such an lic” named “Carolina” fill papers out on issue, quote I the immigration judge’s English, papers her behalf in that Romero complete findings as to the mother’s testi- could not read and which were not read mony, who is referred to as Ms. Romero: Spanish. back to her in thought Romero it permit was a work applicаtion
The court notes that but in fact Ms. Romero’s testi- mony asylum it was an application. was often unclear and The infor- contained put numerous mation “Carolina” on the compared inconsistencies as form was inaccuracies, Application Asylum, to her filled with especially freely as Romero regard with why during to the reasons she admitted oral testimony. fled As the family’s Honduras and her government pointed involvement out later in cross-ex- amination, organization. the “Lineol” Those this same “Carolina” was ar- claim, plainly testimony fraud at a later her immigration IJ found rested date. consistent with and therefore reli- said, able. As the IJ found her Therefore, the comment that there IJ’s testimony “generally corroborated” Cel- inconsistencies between Romero’s were vyn’s testimony. He also found that her testimony Celvyn’s hearing at oral inconsistencies between her asylum application previously-adjudicated asylum trial and her claim own absolutely correct. the IJ did not Respon- “affect heart of the solely concluded that this bore rightly claim dent’s or his overall narra- credibility Romero’s as related to her own Thus, tive.” her as related to asy- her asylum claim. And because own *23 Celvyn’s rightly claim is this court before already adjudicated lum claim had been for review.20 way at in years prior and was no issue case, a about Celvyn’s this was conclusion majority The asserts that “the IJ did not prior legal legal claim that had no rele- ... explicit credibility make findings re- present proceedings. vance to the garding the ... testimony.” mother’s Second, because the IJ found shown, as I have the text from testimony generally Romero’s “otherwise opinion plainly the IJ’s contradicts this Celvyn’s testimony, corroborated” majority contention.21 Because the mis- found that the inconsistencies between her findings, reads the IJ’s it discounts the testimony Celvyn’s oral trial and her entirety testimony, leaving mother’s inaccurate, admittedly previously-adjudi- testimony the child’s oral to stand alone as negative impact claim no cated had testimony oral by considered This, too, Celvyn’s credibility. on was a majority. so, majority doing The erred in conclusion, one that fair bolsters Cel- particularly given that Celvyn’s age im- vyn’s claim. posed duty on court broadly con-
Third, reliability as to the of Romero’s sult all available and reliable evidence to testimony regard Celvyn’s asylum with understand claim.22 testimony, properly regarding 20. As to the aunt's the IJ record as a whole claim. The ap- testimony gen- into that the aunt failed to IJ found that the took account mother’s was pear erally regarding for cross-examination after her initial consistent and reliable claim, testimony noting, Celvyn's yet was taken. It is worth heart of her was however, Further, family's that her to the not considered. is other- record long-running political replete explanations activism with with Lincol wise of the broader Party resulting political family's persecution, and the Liberal and the vio- context of the Celvyn’s testimony, including Celvyn’s testimony with lence was consistent and the exten- testimony, supporting presented by mother's and the exten- sive documentation supporting Celvyn. evidence submitted in the Yet sive neither the IJ nor the BIA drew on case. of this material evidence. In other words, "implicitly IJ and BIA did not evidence; reject" concludes, they simply ignored it majority 21. also without cita- Indeed, entirety. record, in its that is the crux of the tion to the that the IJ and BIA "im- problem in this case. rejected plicitly portions Mejilla- those Romero’s mother’s and aunt's narratives that petitioner" majority indicated Hubert’s actions toward 22.I also note tries a second part political dispute. testimony. were of broader This tactic to dismiss the mother’s It simply majority argues not true and the can cite to the mother was "inconsistent” as nothing suggesting. group in the record so What to whether Lincol was the activist with aligned, the IJ and BIA did was fail to which the consider or whether it Celvyn actually put group persecuting claim fоrth or review the was the the land activists. Supporting Evidence Other massacre the on-going political dispute over land in Olancho between testimony, In addition to the mother’s peasants landowners, backed Celvyn presented unusually strong also military, political and the violent repres- evidence of his claim. supporting These sion inflicted activists because of their (1) include the A following. documents (4) work for land reform.25 Supporting Radan, report Angela from Dr. written documentation about the Horcones/Santa Alliance, Cambridge diagnosing Health (5) Celvyn’s affidavit, Clara massacre. Celvyn specific with PTSD because of the which recounts in age-appropriate terms traumatic events that form the basis of his that his had long-running problems (2) asylum claim.23 An affidavit from a wealthy neighbors related to land is- attorney with an Honduran LLM from (6) politics. sues and The affidavit of Cel- University expertise Harvard and an mother, vyn’s detailing family’s politi- rights. Honduran human lays She out the cal activism with Lincol resulting and the history of land reform struggles Olancho (7) they experienced. violence A supple- province, groups the citizen like Lincol mental affidavit from mother de- engaged in land invasions and were claring that Celvyn’s grandmother had “met with violent resistance” land-hold- *24 been located years after four in families, hiding, ing supported by police “local and that she had authorities,” returned to her home in military and the political vio- Arimis, ill, very was and was fearful for spurred by lence the contest between the (3) her life wealthy neighbors because her parties.24 Liberal and National An affi- (8) Bonta, opposed were to her return. A davit from Mark Geog- Professor of death certificate raphy Celvyn’s for uncle University, expert Delta State indicat- ing wound, that he on land conflicts in was killed province, Olancho who machete spent years in and a criminal four Olancho indictment researching issued for Saul (“Godo”) political Gregorio ownership Mejia strife over land in for the murder. (9) the area. history Scheick,26 He details the Erin Affidavits from a schol- 1970s, group formation of the Lincol ar expertise recruitment and group’s Honduras, death of the founder Lincoln violence in Zelaya, and Gustavo Coleman in the legal Alianza, Clara counsel for Casa leading Horcones/Santa
The
depth
breadth
the mother’s testi-
testimony, particularly
the mother's
where
affidavit,
mony
testimony
the aunt's
asylum applicant
ais minor and cannot
affidavit,
significant supporting
and the
evi-
adequately explain why
himself
he was
dence from scholars and other affiants shows
harmed.
family
that the
members were active Lincol
persecuted
members and were
on this
government
23.
right
The
waived its
to cross-
were, however,
ground.
Radan,
There
a few times in
leaving
examine Dr.
her affidavit un-
testimony
mother’s oral
where her an-
contested in the record.
swers
suggest
were translated so as to
that the
Lincol,
family
persecuted by
was
government
rather than
24. The
also waived cross-exami-
membership
affiant,
because
in Lincol.
leaving
nation as to this
her affidavit
Celvyn's attorney objected on the record sev-
uncontested in the record.
eral
just
limes to
this translation. As his
lawyer explained,
Spanish
"por”
Celvyn
the word
made a written motion to allow
“by”
Any
means both
telephonic
and "because of.”
in-
testimony from Professor Bonta.
in the
consistencies
mother’s
appears
were
It
from the record that the IJ never
the result of a translation error to which
decided the motion.
Celvyn’s attorney objected.
majority
The
ought
rely
government
not
objected-
on few
26. The
instances of
waived cross-examination
dismissing
translation errors as a basis for
as to this affiant as well.
advocacy organization for street children verse the BIA finding we must find that
Celvyn
supports
evidence not
discussing
the risks
conclu-
sion,
it.”);
compels
but
Ashcroft,
Bellido v.
if he
returned to
faces
Honduras.
(8th Cir.2004)
367 F.3d
(reversing
the con-
opinion
The Id’s
fails
review
asylum,
BIA’s
finding
denial of
substantial
evidence,27
BIA, in
tеnt of this
and the
its
support
evidence
for granting asylum, and
cursory two-page opinion, neither men-
remanding for proceedings consistent with
tions nor considers
of the above evi-
I.N.S.,
opinion);
Osorio v.
majority attempts
remedy
dence.
(2d Cir.1994)
1023, 1033
(reversing BIA
the administrative courts’ failure to consid-
asylum,
denial of
finding
applicant
has
by making
er the record as a whole
some
met
“demonstrating
his burden in
eligibili-
attempt
to reference this material. But
ty
political asylum,”
ordering
grant
far cry
analysis.
mere citation is a
from
and withholding
deportation).
Further,
majority
dismisses the rele-
There is no
doubt that
family
important portions
vance of
deeply engaged
in advocating for land
supporting
merely
evidence
because Cel-
reform for several decades in their com-
vyn’s
oral
did not refer to the
munity, and that this activism led to severe
same material.28
reprisals,
including several assassinations
Celvyn
members.
found himself
Celvyn’s Eligibility
Asylum
D.
living
family’s
matriarch,
with the
elderly
1. The Past Persecution Claim
who
anwas
active and
political
visible
ac-
majority,
In contrast
to the
I conclude tivist, and as a
Celvyn
result
suffered the
my
from
review of the
record
there is
same
many
that his
*25
support
not substantial evidence to
the
had, merely
members
political
because of a
Celvyn
lower courts’ conclusion that
did opinion imputed to him.
Vasquez
See
v.
past persecution
not suffer
on account of
I.N.S.,
(1st
62,
Cir.1999) (“An
177 F.3d
65
that,
imputed political opinion. More than
imputed political opinion, whether correct-
I
compels
opposite
believe the record
the
attributed,
ly
incorrectly
or
may constitute
conclusion and that substantial evidence
a reason
political persecution
within
supports
conclusion
Celvyn
the
suf-
meaning
the
of the [Immigration and Na-
past persecution
Act.”)
fered
and has otherwise
tionality]
(quoting Ravindran
asylum
met
I.N.S.,
burden. See I.N.S. v.
754,
Cir.1992));
Eli-
976 F.2d
760
as-Zacarias,
1,
Gonzales,
(7th
502 U.S.
481 n.
112
Mema v.
474 F.3d
(1992) (“To
Cir.2007)
S.Ct.
III. majority Conclusion The opinion refers to the often- mentioned, but never sighted, “rare case, In this the IJ and BIA failed to in case” which the compel- facts are so put decision on the claim issue a merits ling that we will reverse an immigration by Celvyn, requires, which at mini- forth judge’s finding that a petitioner has addition, mum, In a remand. on the mer- prove persecution failed to protect- on a its, IJ, BIA, majority the and the have ground---- [Tjoday’s ed decision indi- majority discounted the vast evidence, case, cates that such a supporting limiting themselves to like the fabled unicorn, simple oral of a child of in only imagination. exists our recounting thirteen events that occurred Gen., Att’y Silva v. U.S. when he was between five and eleven (11th Cir.2006) (Carnes, J., 1248-49 dis- years age. Because claim is senting). I therefore dissent. imputed political opinion based due to family’s activism, political review APPENDIX family history necessary. It was court, below, incumbent on this and those DECISION OF THE IMMIGRATION
to examine record as a whole to under- JUDGE stand the factual basis of his claim. Of course, we required are to review the en- eases,
tire record in all particu- but that is in larly involving true a case a minor. 3. Past Persecution done, all majority When is said and The events as recounted Respon- essentially relies on our standard of review dent do not persecut- establish he was in order to affirm the decisions below. past. ed The Respondent testified argument basically is that our hands “Hubert,” neighbor his former tied, are regardless of how unfortunate Honduras, destroyed his grandmother’s young experiences may child’s have machete, home and windows with a fre- been. if this is not a case where quently “Communist,” him a called threw we can asylum, reverse denial of I have him, occasion, stones at and on one hit him imagining trouble the set of facts that leg with a Respon- machetе. The permit view, would such a my reversal. dent also testified that this court he had has allowed the difficulties standard of re- “Maras,” view in gangs year of fifteen cases to become an ever old impermeable boys more neighboring barrier from the village, mean- when ingful appellate they Quoting pushed review.30 from him attempted to steal Judge Carnes on the Eleventh money. point, Circuit: his At one boys these also cases, It is instructive to review data from the placing reversed in 3.8% it dead Justice, Department Executive Office for average last. Id. In reversal rate for Review, Immigration 12.6%, which shows that this all circuits was while the First Circuit among cases, circuit likely just least to reverse a placing reversed in it sec- 4.2% example, decision of the BIA. For http://www.justice. ond from the bottom. See average reversal rate gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3 for all circuits was 17.5%, just while the First Circuit pdf. reversed in nol. For the first ten months of *28 cases, making 11.5%, likely 7.1% average it third least reversal rate was while circuit to http://www.justice.gov/ cases, reverse. See the First Circuit reversed in 4.8% making likely it the fourth least circuit eoir/vll/ILA-Newsleter/ILA%20Vol%202/vol2n ol.pdf. average http://www.justice.gov/eoir/ reversal rate for reverse. See vll/ 15.3%, all circuits was while the First Circuit pdf. noil. ILA-Newsleter/ILA2009/vol3 (NJ) Tiffany TIFFANY INC. house, Respondent from a small threw Company, Plaintiffs-Appellants, entangled him to become in a wire. causing may typi that an adult not Behaviors
cally associate with or serious INC., eBAY Defendant-Appellee. may produce lasting damage harm or Docket No. 08-3947-cv. in a physical psychological trauma child persecution. and thus constitute See Civ Appeals, United States Court of INS, il v. F.3d 62-63 Cir. Second Circuit. 1998) (dissenting opinion). af Argued: July 2009. a careful review of the Record of
ter Pro (and April Decided: ceedings bearing in mind the Re at the time spondent’s age these events
occurred), the Court concludes that
Respondent past per did not suffer from were,
secution. While these events with doubt, troubling, they
out a amount to no
more than a series of isolated altercations disgruntled neighbor
with a
group boys younger who bullied chil into providing money.
dren them with Awad, (harassment
See F.3d at bullying persecu does not amount to
tion). There is no evidence the Record
of Proceedings Respondent that the physically punished
ever possessing
belief or sought characteristic that others
to overcome. Nor there evidence
that encounters with “Hubert” or the not, perhaps,
“Maras”—and the difficul
ties involved in traveling unaccompanied Respon
to the United States —caused the lasting psychological
dent such trauma so past
as to rise to the level of persecution. (psychological Exhibit 6 evaluation di
Cf
agnosing Respondent with Post-Trau Disorder).
matic Stress Accordingly, this
Court finds that the Respondent did not past persecution.
suffer