Holder, Jr. v. Mejilla-Romero

Filing 920100406

Opinion

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var WPFootnote1 = '                   The IJ found that "extraordinary circumstances" justified\
Mejilla-Romero\'s failure to timely file his asylum application\
within one year of entry to the United States. See 8 C.F.R.\
§ 1208.4(a)(5). In particular, the IJ ruled that, in light of\
Mejilla-Romero\'s young age upon arriving in the United States,\
compliance with subsequent filing deadlines, and submission of\
"voluminous documentation" in support of his asylum application,\
his application would not be time-barred.\
'

var WPFootnote2 = '                   The report was based on an assessment conducted in June\
2005, shortly before Mejilla-Romero\'s testimony before the IJ, in\
support of his application for asylum. A staff psychologist in the\
Cambridge Health Alliance\'s Latino Mental Health Program evaluated\
Mejilla-Romero as presenting "significant symptoms of anxiety,"\
noting that he had nightmares about running from those who want to\
harm him and that he struggled with intrusive memories of past\
traumatic events. He was preoccupied about his grandmother, whom\
he had not, at that point, heard from since 2002. The report said\
"[t]here is no evidence of psychotic symptoms," "[h]e is alert and\
oriented," and that he had "good impulse control," as well as "very\
good insight into his problems." In addition to the experiences\
with Hubert and the gang, the report also noted an incident in\
Honduras in which Mejilla-Romero said he had a live snake thrown at\
him and other occasions on which he claimed to have fended off\
possible sexual assaults. The report did not specify who had\
thrown the snake or attempted to sexually assault him.\
              The report also discussed incidents involving Mejilla-Romero\'s\
family two weeks earlier in their housing project in Boston,\
observing that Mejilla-Romero, his mother, and other siblings had\
been threatened, and that the family was "terrified" of violence in\
this country. The recent rounds of violence included his mother\'s\
partner being attacked with a bat and having his arm broken, the\
family car being vandalized, and men banging on their apartment\
door with a bat. The family was moved to a different location.\
              The psychologist concluded that Mejilla-Romero presented "a\
constellation of symptoms indicative of . . . Post Traumatic Stress\
Disorder (PTSD)." The report did not attempt to attribute the PTSD\
to specific events. It concluded that Mejilla-Romero was affected\
by ongoing post-traumatic symptoms resulting from the "traumatic\
experiences he was exposed to in his first eleven years of life in\
Honduras" and that the "extremely violent events" of the past two\
weeks had led to "an exacerbation of his symptoms."\
'

var WPFootnote3 = '                   See Ravix v. Mukasey, 552 F.3d 42, 44-46 (1st Cir. 2009)\
(holding that incidents including being "struck in the head by a\
stone" and threatened at gunpoint did not rise to the level of past\
persecution); Santosa v. Mukasey, 528 F.3d 88, 92-93 (1st Cir.\
2008) (holding that a series of incidents in which the Indonesian\
petitioner was targeted for his Chinese ethnicity, including being\
bullied as a child and adolescent, attacked by a group of ten\
people as a teenager, having rocks thrown at his store, and having\
his car destroyed, did not rise to the level of past persecution);\
Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (holding\
that "ugly, discriminatory, and regrettable" incidents, including\
"vandalization of the family home," a failed sexual assault when\
the petitioner was fourteen years old, a mugging at knifepoint, the\
bombing of the petitioner\'s church, and episodes in which crowds\
"threatened and threw stones at [the petitioner] and her fellow\
worshipers" did not rise to the level of past persecution); Bocova,\
412 F.3d at 263 (holding that two incidents in which the petitioner\
was arrested, beaten, and threatened with death did not rise to the\
level of past persecution).\
'

var WPFootnote4 = '                   In Mejilla-Romero\'s October 2004 affidavit in support of\
his application for asylum, he stated that he recalled that many of\
his grandmother\'s neighbors were "upset" because his family had\
less money than the neighbors and his grandmother built her home on\
a "used piece of land in the neighborhood." He also said that his\
family\'s differences from the neighbors "became even clearer" when\
he realized that his family flew the Liberal Party\'s red flag and\
the neighbors flew the National Party\'s blue flags. These\
affidavit statements do not compel the conclusion that his\
encounters with Hubert were based on the political beliefs of\
Mejilla-Romero or his family. Moreover, he did not mention these\
events in his subsequent testimony before the IJ and indeed\
testified he did not know why Hubert threw stones at him or did not\
like his grandmother.\
'

var WPFootnote5 = '                   The assertion of a broader political dispute depends on\
stringing together bits and pieces of the sometimes-confusing and\
internally contradictory testimony of petitioner\'s mother and the\
incomplete testimony of his aunt. And to the extent Mejilla-Romero\
now argues that, in the absence of an explicit lack-of-credibility\
finding, we must take the mother\'s and aunt\'s testimony regarding\
the purported political feud as credible, his argument is flatly\
contradicted by our caselaw. See Kho v. Keisler, 505 F.3d 50, 56\
(1st Cir. 2007) ("We have . . . rejected the proposition that\
aliens are entitled to a presumption of credibility on review in\
this court if there is no express credibility determination made by\
an IJ."); Zeru v. Gonzales, 503 F.3d 59, 73 (1st Cir. 2007) ("Nor\
is there an assumption that if the IJ has not made an express\
finding of non-credibility, the alien\'s testimony must be taken as\
credible.").\
'

var WPFootnote6 = '                   His opening brief is devoid of any citation to the record\
on this point. See Rios-Jimenez v. Principi, 520 F.3d 31, 39 n.5\
(1st Cir. 2008) ("[A]ppellant\'s argument must contain \'[the]\
appellant\'s contentions and the reasons for them, with citations to\
the authorities and parts of the record on which the appellant\
relies.\'") (quoting Fed. R. App. P. 28(a)(9)(A)) (second alteration\
in original).\
'

var WPFootnote7 = '                   The IJ\'s decision included a copy of the warrant in its\
recitation of the documentary evidence.\
'

var WPFootnote8 = '                   There is no need to analyze whether eighteen-year-olds\
are "street children" or whether "street children" suffer\
persecution in Honduras. Cf. Escobar v. Gonzales, 417 F.3d 363,\
368 (3d Cir. 2005) (rejecting an argument by younger petitioner\
that homeless Honduran children constituted a "particular social\
group" for purposes of asylum determination and explaining that\
"[p]overty, homelessness and youth are far too vague and all\
encompassing to be characteristics that set the perimeters for a\
protected group within the scope of the Immigration and\
Naturalization Act").\
'

var WPFootnote9 = '                   Mejilla-Romero also argues that the BIA abused its\
discretion by failing to grant him humanitarian asylum, "a\
discretionary doctrine sometimes available even in the absence of\
a threat of future persecution." Bollanos v. Gonzales, 461 F.3d\
82, 86 (1st Cir. 2006); see also 8 C.F.R. § 1208.13(b)(1)(iii). \
However, such relief explicitly requires a threshold showing of\
past persecution. 8 C.F.R. § 1208.13(b)(1)(iii); see also Waweru\
v. Gonzales, 437 F.3d 199, 205 (1st Cir. 2006) (noting that\
humanitarian asylum "is granted only in cases of extraordinary\
suffering") (internal quotation marks omitted).\
              Because we have found that substantial evidence supports the\
IJ\'s and BIA\'s determination that Mejilla-Romero\'s mistreatment did\
not constitute persecution, his "claim for discretionary relief\
necessarily also fails." Akinfolarin v. Gonzales, 423 F.3d 39, 44\
n.6 (1st Cir. 2005).\
'

var WPFootnote10 = 'Though the majority, the BIA, and the IJ refer to petitioner\
as Selvin Mejilla-Romero, the petitioner\'s name is Celvyn Azael\
Mejia Romero. Apparently the incorrect name originated with a data\
entry error in his original Notice to Appear and was never\
corrected by the government despite notice of the problem. \
'

var WPFootnote11 = 'The Immigration and National Act (INA) defines a "child" as\
an unmarried person under twenty-one years of age, meaning Celvyn,\
who is now eighteen, still qualifies as such. See INA §§ 101(b)(1)\
and 101(c)(1), 8 U.S.C. § 1101(b)(1) and (c)(1).\
'

var WPFootnote12 = 'The majority\'s citation to Raza v. Gonzales, 484 F.3d 125\
(1st Cir. 2007), supports my view. We have required that the BIA,\
at a minimum, frame "its decision in terms adequate to allow a\
reviewing court to conclude that the agency has thought about the\
evidence and the issues and reached a reasoned conclusion." Id. at\
128. Here, the BIA and the IJ have so completely misstated the\
factual basis of Celvyn\'s claim that it is plain that the agency\
has not adequately thought about the evidence and therefore could\
not have reached a reasoned conclusion. \
'

var WPFootnote13 = 'Because this is such an important point of disagreement with\
the majority, I have appended to my dissent the IJ\'s complete\
analysis of Celvyn\'s past persecution claim, which can be found on\
pages 17 and 18 of the IJ\'s opinion, under the heading "Past\
Persecution." Despite the majority\'s attempt to paper over the\
IJ\'s failure to review Celvyn\'s claim, the appended portion plainly\
does not include a review of Celvyn\'s claim or his supporting\
evidence. It is simply not there. \
'

var WPFootnote14 = 'The doctor\'s evaluation is the only evidence in the record\
pertaining to Celvyn\'s mental health. Nonetheless, the IJ\
dismissed the doctor\'s conclusion as to the cause of Celvyn\'s PTSD\
based on pure speculation. The IJ mused that there was no evidence\
in the record that Celvyn\'s PTSD was caused by the "encounters"\
with the neighbors and the gang members rather than "perhaps, the\
difficulties involved in traveling unaccompanied to the United\
States." In other words, the IJ dismissed the expert\'s uncontested\
causal diagnosis of Celvyn\'s PTSD based on nothing more than the\
IJ\'s own personal guess that perhaps Celvyn\'s trauma might have\
been caused by his travel to the United States. The majority, in\
turn, adopts the IJ\'s speculative stance on this issue in spite of\
the uncontested record evidence identifying the source of Celvyn\'s\
PTSD. The majority\'s acrobatic attempts to get around the clear\
and uncontested findings of the medical professional violate our\
case law and are surprising. See Cordero-Trejo, 40 F.3d at 487\
(deference to BIA "is not due where findings and conclusions are\
based on . . . merely personal views of the immigration judge")\
(citations omitted). A simple reading of the psychological report\
leaves no doubt that Celvyn\'s PTSD was caused by the extreme\
violence he experienced in Honduras at such a young age. \
'

var WPFootnote15 = 'An in-depth report from Harvard University on minors seeking\
asylum in the United States provides anecdotal examples of this\
difficulty:\
\
              For children, presenting their own evidence can be difficult.               One asylum officer recounted a compelling case involving a               10-year-old girl whose father worked for a corrupt politician.\
              Because the father knew compromising information about the               politician, both parents were assassinated while the father               was still employed by this politician. During her asylum               interview, the orphaned girl focused primarily on the computer\
              that her father would bring home from work rather than on the               political context that had destroyed the family. Fortunately,               news accounts of the parents\' assassination--supplied by               supportive adults who realized their relevance--existed to               corroborate and fill out the child\'s story. In another case,               a Quality Assurance and Training Officer recalled that a child\
              was asked "Why did they kill your uncle?" The child responded,\
              "To make my grandmother sad." Though children may be eligible\
              for asylum, providing the evidence to support the claim may be\
              impossible. As another asylum officer commented on the               challenge of relying on children\'s memory, "A lot of what               sticks isn\'t what we need."\
\
"Seeking Asylum Alone in the United States," J. Bhabha & S.\
Schmidt, June 2006, available at\
www.humanrights.harvard.edu/images/pdf_files/Seeking_Asylum_Alone_US_Report.pdf. \
'

var WPFootnote16 = 'In his analysis of the past persecution issue, the IJ stated\
that he considered the fact that children may experience\
persecution in ways that are different from adults. However, the\
IJ\'s supposed consideration of Celvyn\'s age was meaningless given\
that the IJ did not address Celvyn\'s imputed persecution claim,\
only drew upon the child\'s oral testimony, and ignored the\
extensive evidentiary support for his claim. In effect, despite\
Celvyn\'s age, the IJ required him to carry his asylum burden\
through his oral testimony alone. It should not be enough, as the\
majority apparently believes, for the IJ to merely state he has\
taken age into account. Where the written decision plainly shows\
that the IJ neither considered the child applicant\'s imputed\
political opinion claim nor considered his extensive supporting\
evidence, accepting at face value the IJ\'s assurance that he has\
factored in age amounts to placing form over substance. I would\
require that the IJ demonstrate through his analysis that this\
factor was taken into account. There is a big difference between\
these two. Using magic words should not be enough.\
'

var WPFootnote17 = 'For example, relating one of his neighbor\'s violent machete\
attacks against himself and his elderly grandmother, Celvyn\'s\
story-telling was very simple:\
\
Q: Did he ever harm you?\
A: Yes.\
Q: What kind of things did he do to you?\
A: One, once, this day, I was running because he was hitting me and\
he threw a machete at me.\
Q: And what happened when he threw the machete at you?\
A: He hit me here.\
. . .\
A: He grabbed the machete and he threw it against me and the\
machete ends up, ended up this way.\
'

var WPFootnote18 = 'For example, during cross-examination, Celvyn tried to\
explain why almost all of his family members had fled Honduras. He\
clearly understood that there was something systematic about the\
violence inflicted on his family, but his explanation of the larger\
context is limited by his age and development:\
\
Q: Okay. And did your grandmother tell you why your mom and father\
came to the United States?\
A: They went through the same thing I went through. Before, when\
she was in Honduras, also the family, the boys, the neighbor, they\
would bother our family and that\'s the reason all of them, almost\
all of them came here.\
Q: Okay. Who told you that?\
A: My mother. She knows that. She told me that.\
. . .\
A: When I told her what happened to me, she told me the same thing\
happened to me. \
'

var WPFootnote19 = 'Again on cross-examination, the government attorney probed\
the "on-account-of" element of the asylum standard. Celvyn knew\
that his neighbors called him and his family "Communists" but, in\
a textbook example of what constitutes a purely imputed political\
opinion, he stated that he did not even know what that word meant:\
\
Q: Okay. And do you know why Hubert didn\'t like your grandmother?\
A: No.\
Q: Do you know why he said Communists?\
A: I don\'t know what that word means.\
Q: Okay. And did you hear it yourself or did someone tell you\
that\'s what he said?\
A: He stated Communists.\
Q: And you don\'t know what he meant by that?\
A: No. \
'

var WPFootnote20 = 'As to the aunt\'s testimony, the IJ properly took into account\
that the aunt failed to appear for cross-examination after her\
initial testimony was taken. It is worth noting, however, that her\
testimony as to the family\'s long-running political activism with\
Lincol and the Liberal Party and the resulting violence was\
consistent with Celvyn\'s testimony, Celvyn\'s mother\'s testimony,\
and the extensive supporting evidence submitted in the case. \
'

var WPFootnote21 = 'The majority also concludes, without citation to the record,\
that the IJ and BIA "implicitly rejected those portions of Mejilla-Romero\'s mother\'s and aunt\'s narratives that indicated Hubert\'s\
actions toward petitioner" were part of a broader political\
dispute. This is simply not true and the majority can cite to\
nothing in the record so suggesting. What the IJ and BIA did was\
fail to consider the claim Celvyn actually put forth or review the\
record as a whole regarding his claim. The IJ found that the\
mother\'s testimony was generally consistent and reliable regarding\
the heart of Celvyn\'s claim, yet her testimony was not considered. \
Further, the record is otherwise replete with explanations of the\
broader political context of the family\'s persecution, including\
Celvyn\'s testimony and the extensive supporting documentation\
presented by Celvyn. Yet neither the IJ nor the BIA drew on any of\
this material evidence. In other words, the IJ and BIA did not\
"implicitly reject" this evidence; they simply ignored it in its\
entirety. Indeed, that is the crux of the problem in this case.\
'

var WPFootnote22 = 'I also note that the majority tries a second tactic to\
dismiss the mother\'s testimony. It argues that the mother was\
"inconsistent" as to whether Lincol was the activist group with\
which the family was aligned, or whether it was the group\
persecuting the land activists. The breadth and depth of the\
mother\'s testimony and affidavit, the aunt\'s testimony and\
affidavit, and the significant supporting evidence from scholars \
and other affiants shows that the family members were active Lincol\
members and were persecuted on this ground. There were, however,\
a few times in the mother\'s oral testimony where her answers were\
translated so as to suggest that the family was persecuted by\
Lincol, rather than because of membership in Lincol. However,\
Celvyn\'s attorney objected on the record several times to just this\
translation. As his lawyer explained, in Spanish the word "por"\
means both "by" and "because of." Any inconsistencies in the\
mother\'s testimony were the result of a translation error to which\
Celvyn\'s attorney objected. The majority ought not rely on a few\
instances of objected-to translation errors as a basis for\
dismissing the mother\'s testimony, particularly where the asylum\
applicant is a minor and cannot himself adequately explain why he\
was harmed.\
'

var WPFootnote23 = 'The government waived its right to cross-examine Dr. Radan,\
leaving her affidavit uncontested in the record. \
'

var WPFootnote24 = 'The government also waived cross-examination as to this\
affiant, leaving her affidavit uncontested in the record. \
'

var WPFootnote25 = 'Celvyn made a written motion to allow telephonic testimony\
from Professor Bonta. It appears from the record that the IJ never\
decided the motion. \
'

var WPFootnote26 = 'The government waived cross-examination as to this affiant\
as well. \
'

var WPFootnote27 = 'The IJ does list all of the exhibits entered into evidence,\
and briefly mentions that the supporting evidence "bolster[s] the\
credibility of [Celvyn\'s] testimony." But the IJ does not discuss\
the content of the evidence as it relates to the factual basis of\
Celvyn\'s past persecution claim, as the appended portion of the\
IJ\'s decision shows.\
'

var WPFootnote28 = 'For example, the majority dismisses the relevance of Celvyn\'s\
affidavit because Celvyn "did not mention these events in his\
subsequent testimony before the IJ and indeed testified that he did\
not know why Hubert threw stones at him or did not like his\
grandmother." (emphasis added). Here, again, the majority takes\
Celvyn\'s inherent disability, namely his age-related difficulty in\
explaining orally the trauma he endured and the political reasons\
for it, and uses that as an excuse to dismiss other forms of\
evidence, rather than as a reason to give particular care and\
consideration to his supporting forms of proof. In other words,\
the majority uses Celvyn\'s disability to exclude rather than\
include additional evidence, which turns the rule governing the\
consideration of juvenile asylum applications on its head. \
'

var WPFootnote29 = 'The majority\'s assertion that Celvyn did not "present any\
evidence that the Honduran government was unwilling to prosecute\
his assailants," is not supported by a review of the record as a\
whole. In addition, where there is evidence, as in this case, that\
the governing authorities are complicit in the persecution and have\
failed to provide protection in the past, there is no requirement\
that the applicant have reported further incidents of harm to those\
very same authorities. See, e.g., In re S-A-, 22 I & N Dec. 1328,\
1335 (BIA 2000) ("[T]he evidence convinces us that even if the\
respondent had turned to the government for help, Moroccan\
authorities would have been unable or unwilling to control her\
father\'s conduct."). Indeed, a reporting requirement would exclude\
many of the most deserving asylum applications because it is common\
sense not to report persecution to government officials who one has\
reason to believe are cooperating with the persecutors. \
'

var WPFootnote30 = 'It is instructive to review data from the Department of\
Justice, Executive Office for Immigration Review, which shows that\
this circuit is among the least likely to reverse a decision of the\
BIA. For example, in 2006, the average reversal rate for all\
circuits was 17.5%, while the First Circuit reversed in just 7.1%\
of cases, making it the third least likely circuit to reverse. See\
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%20Vol%202/vol2no1.pdf. In 2007, the average reversal rate for all circuits was\
15.3%, while the First Circuit reversed in only 3.8% of cases,\
placing it dead last. Id. In 2008, the average reversal rate for\
all circuits was 12.6%, while the First Circuit reversed in just\
4.2% of cases, placing it second from the bottom. See\
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no1.pdf. For the first ten months of 2009, the average reversal rate\
was 11.5%, while the First Circuit reversed in 4.8% of cases,\
making it the fourth least likely circuit to reverse. See\
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no11.pdf. \
'

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