Mendoza-Pablo, et al v. Holder

Filing

FILED OPINION (A. WALLACE TASHIMA, JOHNNIE B. RAWLINSON and JED S. RAKOFF) GRANTED; REMANDED., Judge: JBR Concurring & dissenting, Judge: JSR Authoring. FILED AND ENTERED JUDGMENT. [8058885]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN UBALDO MENDOZA-PABLO,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.





No. 07-73592
Agency No.
A 97-589-307
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
July 21, 2011—San Francisco, California
Filed February 7, 2012
Before: A. Wallace Tashima and Johnnie B. Rawlinson,
Circuit Judges, and Jed S. Rakoff, Senior District Judge.*
Opinion by Judge Rakoff;
Partial Concurrence and Partial Dissent by Judge Rawlinson

*The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

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COUNSEL
Robert L. Lewis, Law Office of Robert L. Lewis, Oakland
Califoria, for the petitioner.
Gregory G. Katsas, Daniel E. Goldman, and Yamileth G.
Handuber, United States Department of Justice, Civil Division/Office of Immigration Litigation, Washington, DC, for
the respondent.

OPINION
RAKOFF, Senior District Judge:
Petitioner Juan Ubaldo Mendoza-Pablo petitions for review
of a decision of the Board of Immigration Appeals (“BIA”)
denying his applications for asylum, withholding of removal,
and protection under the Convention Against Torture
(“CAT”) on the ground, inter alia, that Mendoza-Pablo had

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not been the victim of past persecution because he was never
“personally challenged or confronted by any potential persecutor.” We grant the petition.
The pertinent facts are as follows.1 Mendoza-Pablo is a
member of the Mam Mayan group, an indigenous ethnic
group whose members live predominantly in Guatemala. His
family originally hailed from the village of Todos Santos. In
1982, when Mendoza-Pablo was born, the Guatemalan government was engaged in a fierce and largely one-sided civil
war with insurgent groups predominantly of Mayan ethnicity.
In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the
Second Circuit, citing the Report of the “Commission for Historical Clarification” (which was established by the June 23,
1994 Oslo Accord as part of the United Nations-brokered
peace process), described this conflict as follows:
. . . 83% of the identified victims of the violence
were Mayan . . . [and] state forces and related
paramilitary groups were responsible for 93% of
[documented human rights] violations . . . .
[T]hroughout the armed confrontation the [Guatemalan Government] designed and implemented a strategy to provoke terror in the population . . . . Mayans
as a group . . . were identified by the Army as guerrilla allies . . . [leading to] . . . massacres, scorched
earth operations, forced disappearances and executions . . . .
1

These facts derive in substantial part from Mendoza-Pablo’s testimony
before the Immigration Judge (“IJ”). Because the IJ found his testimony
credible, and this finding was upheld by the BIA, we accept as true the
facts testified to by Mendoza-Pablo. See Ladha v. INS, 215 F.3d 889, 900
(9th Cir. 2000) (“[W]hen an alien credibly testifies to certain facts, those
facts are deemed true, and the question remaining to be answered becomes
whether these facts, and their reasonable inferences, satisfy the elements
of the claim for relief.”). For present purposes, this also includes information Mendoza-Pablo credibly testified he learned from his mother about
events surrounding his birth and early years.

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Id. at 150.
During this conflict, the Guatemalan government, “regarding the entire civilian population of many villages as members
of guerrilla groups,” sought to “physically eliminat[e]” all the
people residing in those villages, including children. See Guatemala: Never Again! The Official Report of the Human
Rights Office, Archdiocese of Guatemala, at 32 (Greta Tovar
Siebentritt, trans.) At some point in 1982, when MendozaPablo’s mother was eight months pregnant with him, Guatemalan government soldiers, having accused the residents of
Todos Santos of aiding the guerrillas, burned the village to the
ground, massacring many of the village’s inhabitants in the
process. Though Mendoza-Pablo’s immediate family, along
with some other villagers, escaped the attack by hiding in the
mountains, his paternal grandparents and two aunts were
killed when government soldiers locked them in their homes
and burned them alive. Outside observers have estimated that
“[i]n Todos Santos (the town) sixty to eighty people were
killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.”
Very shortly thereafter, Mendoza-Pablo was born, several
weeks premature. Food was scarce in the mountains and
Mendoza-Pablo’s mother, unable to breast feed, sought to
nourish him with tea made from wild herbs. When he was
roughly three months old, Mendoza-Pablo’s family decided
that, in light of the foregoing events, remaining in Guatemala
posed a danger to their lives. Accordingly, the family traveled
to Mexico, where, however, they did not have lawful status,
as a result of which Mendoza-Pablo was unable to attend
school and had difficulty obtaining employment. In addition,
Mendoza-Pablo was often sick and frequently had nightmares.2
2

In this regard, Mendoza-Pablo testified as follows, “[w]hen I was
growing up in Mexico I would often get very sick and then I think it did
jeopardize me because I would wake up at night just frightened, having
nightmares, frightened and shaking, and I think it’s because of all of that
time we had spent in the mountains and the things that were happening
there.”

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Eventually, in September 2002, Mendoza-Pablo entered the
United States illegally.
In due course, the U.S. Government sought MendozaPablo’s removal, and on May 19, 2003, Mendoza-Pablo
appeared before an IJ without counsel, and was granted a continuance of removal proceedings to obtain legal representation. On October 16, 2003, he filed with the Department of
Homeland Security (“DHS”) an application for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). After the IJ granted two additional
continuances — to allow for attorney preparation, for the resolution of a pending Freedom of Information Act request, and
for Mendoza-Pablo to retain new counsel — on July 7, 2004,
Mendoza-Pablo appeared before the IJ and renewed his applications for asylum, withholding of removal, and CAT protection. On March 20, 2006, four days before the scheduled
merits hearing on those applications, counsel for MendozaPablo filed a motion to continue the proceedings so as to
“allow time for a psychological evaluation” of MendozaPablo, which had not yet been completed because of “scheduling and monetary restraints.” The IJ denied the request, ruling that “no good cause ha[d] been established” for a
continuance.
On March 24, 2006, after a merits hearing, the IJ denied
Mendoza-Pablo’s applications for asylum, withholding of
removal, and CAT protection. The IJ found Mendoza-Pablo
credible in all respects, but held that the substance of his testimony was insufficient to meet his burden of establishing past
persecution. Specifically, the IJ held that Mendoza-Pablo had
not been persecuted because he had never personally “witnessed any atrocities” and he was never “personally challenged or confronted” by the Guatemalan military forces that
attacked Todos Santos. The IJ further emphasized that
Mendoza-Pablo had not adduced any evidence “from a professional standpoint” that he had suffered psychologically as
a result of his childhood experiences. Finally, the IJ stated that

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the attack on Todos Santos and the resultant deaths of
Mendoza-Pablo’s extended family members could not constitute persecution “when the event[s] happened during . . . the
civil war . . . in Guatemala.”
Mendoza-Pablo appealed the IJ’s decision to the BIA,
which, by Order dated August 9, 2007, affirmed the IJ’s decision. Specifically, the BIA held that Mendoza-Pablo’s “second hand exposure” to the civil war in Guatemala was
insufficient to establish past persecution because he did not
personally endure or witness the atrocities perpetrated by the
Guatemalan government against his family and ancestral village. Further, the BIA agreed that Mendoza-Pablo’s testimony
as to any emotional harm he suffered as a result of his childhood experiences was insufficient to constitute past persecution without “expert or objective evidence” that he presently
suffers from a psychological disorder stemming from those
experiences.3 The instant petition for review followed.
DISCUSSION
Because the BIA conducted an independent review of the
IJ’s findings, we review the BIA’s decision and not that of the
IJ. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003);
see also INA, 8 U.S.C. § 1252(a)(1) (Courts review the agency’s “final order of removal”). We review the BIA’s purely
3

The BIA also ruled that Mendoza-Pablo had failed to establish “an
objectively reasonable well-founded fear of [future] persecution” because
(a) the Guatemalan government’s attacks on his family’s village occurred
over 20 years ago and are thus “too remote” and (b) his “general claim that
[he] ‘could be killed’ by unknown persons is insufficient to support an
asylum claim.” Similarly, many of the factual circumstances relied on by
Judge Rawlinson in her partial dissent relate solely to whether MendozaPablo has a well-founded fear of future persecution. However, because we
conclude that the BIA erred in holding that Mendoza-Pablo had not been
subject to past persecution, we do not reach this question. On remand, the
BIA will have to address this question anew, with the burden of proof
properly placed on the Government rather than Mendoza-Pablo. See
Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005).

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factual determinations for substantial evidence. Li v. Holder,
559 F.3d 1096, 1102 (9th Cir. 2009); see also INS v. EliasZacarias, 502 U.S. 478, 481 (1992) (BIA factual determinations must be upheld if it is “supported by reasonable, substantial, and probative evidence on the record considered as
a whole”). However, we review de novo both “purely legal
questions” and “mixed questions of law and fact requiring us
to exercise judgment about legal principles.” United States v.
Ramos, 623 F.3d 672, 679 (9th Cir. 2010); Kankamalage v.
INS, 335 F.3d 858, 861 (9th Cir. 2003). While “[t]he BIA’s
interpretation of immigration laws is entitled to deference
. . . [,] we are not obligated to accept an interpretation clearly
contrary to the plain and sensible meaning of the statute.”
Kankamalage, 335 F.3d at 862; see also Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9
(1984).
The Attorney General may, in his discretion, grant asylum
to applicants determined to be refugees within the meaning of
the Immigration and Nationality Act (“INA”), 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1). An applicant qualifies as a
refugee when he “is unable or unwilling to return to his home
country because of a well-founded fear of future persecution
on account of race, religion, nationality, membership in a particular social group, or political opinion.” Navas v. INS, 217
F.3d 646, 654 (9th Cir. 2000). We presume that an applicant
has a “well-founded fear of future persecution,” and is therefore eligible for asylum, where he presents proof establishing
his past persecution. Fisher v. INS, 79 F.3d 955, 960 (9th Cir.
1996) (en banc). Once past persecution is established, the burden then shifts to the Government to rebut this presumption
by showing, inter alia, “a fundamental change in circumstances such that the applicant no longer has a well-founded
fear of persecution.” Deloso v. Ashcroft, 393 F.3d 858, 863-64
(9th Cir. 2005).
[1] Persecution is defined as “the infliction of suffering or
harm . . . in a way regarded as offensive.” Li v. Ashcroft, 356

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F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation
marks omitted). We have recognized that, in light of this general definition, persecution can “come[ ] in many forms,”
including physical, economic, and emotional harm. See Knezvic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004) (citing
cases).
[2] This case requires us to determine whether MendozaPablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his
and his parents’s fear of further persecution growing directly
out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA.
Mendoza-Pablo was born in the mountains several weeks premature, very shortly after his pregnant mother fled from Guatemalan government forces that had attacked her ancestral
village, burned the village to the ground, and massacred its
inhabitants, including several of Mendoza-Pablo’s close relatives. Despite his mother’s best efforts, Mendoza-Pablo was
severely malnourished throughout the first few months of his
life, because his mother was too malnourished to breastfeed.
Faced with the very real threat of further persecution, the family, just months after the village was massacred, fled the country. Although Mendoza-Pablo’s family succeeded in escaping
to Mexico, their unlawful status there directly led to further
deprivations suffered by Mendoza-Pablo, including lack of
schooling and difficulty finding employment.
[3] The BIA concluded that the foregoing does not to constitute “persecution” because Mendoza-Pablo’s experiences,
in its view, constituted “second hand exposure” to the violence perpetrated against the inhabitants of Todos Santos. As
an initial matter, it is clear from our case law that an infant
can be the victim of persecution, even though he has no present recollection of the events that constituted his persecution.
See Benyamin v. Holder, 579 F.3d 970, 792 (9th Cir. 2009)
(enduring genital mutilation as a five-day-old infant consti-

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tutes persecution).4 Indeed, at least three Courts of Appeals in
other Circuits have indicated that the quantum of harm suffered by a child “may be relatively less than that of an adult
and still qualify as persecution.” U.S. Dep’t of Justice, Guidelines for Children’s Asylum Claims, 1998 WL 34032561
(1998); see Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004)
(“age can be a critical factor in the adjudication of asylum
claims and may bear heavily on the question of whether an
applicant was persecuted or whether she holds a well-founded
fear of future persecution”); Jorge-Tzoc v. Gonzales, 435 F.3d
146,150 (2d Cir. 2006) (same); Abay v. Ashcroft, 368 F.3d
634, 640 (6th Cir. 2004) (same). Furthermore, as we held in
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007):
Three sister circuits have now vindicated a principle
that is surely a matter of common sense: a child’s
reaction to injuries to his family is different from an
adult’s. The child is part of the family, the wound to
the family is personal, the trauma apt to be lasting.
. . . We now join the Second, Sixth, and Seventh Circuits in affirming the legal rule that injuries to a family must be considered in an asylum case where the
events that form the basis of the past persecution
claim were perceived when the petitioner was a
child.
Id. at 1045-46. Accordingly, the harms suffered by MendozaPablo’s family members “must be considered” in assessing
4

Judge Rawlinson objects that Benyamin is distinguishable from the
instant case in that “the infant in Benyamin was directly subjected to a
physical injury.” This distinction, however, is not controlling. We have
repeatedly held that physical injury is not a necessary prerequisite to persecution. See Knezvic, 367 F.3d at 1211 (collecting cases in which we held
that persecution can include, inter alia, “severe harassment, threats, violence, and discrimination”; “forced institutionalization”; “violence against
family, and seizure of family land and ration card”; and “mental, emotional, and psychological harm”).

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whether the events of his childhood rise to the level of past
persecution.
Moreover, as we have consistently recognized, being
forced to flee from one’s home in the face of an immediate
threat of severe physical violence or death is squarely encompassed within the rubric of persecution, as long as the persecutors’ actions are motivated by the victim’s race or some
other protected consideration. See Knezvic, 367 F.3d at 1211;
see also Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004)
(threats of serious harm or death may constitute persecution).
For instance, in Knezvic, we held that the petitioners, who are
of Serbian ethnicity, had suffered persecution during the civil
war in the former Yugoslavia when they were forced to
“fle[e] their hometown” because they believed that “shelling
and bombardment by hostile Croat army forces threatened
their lives.” Id. at 1208-09 (also noting that the petitioners’
“business and home were destroyed”).
Here, Mendoza-Pablo’s pregnant mother, like the petitioners in Knezvic, fled from her home village as a result of her
(eminently-reasonable) belief that her life — as well the life
of the child in her womb — was in severe and immediate danger because Guatemalan military forces had specifically targeted the village’s inhabitants on the basis of their racial and
ethnic background. The tragic seriousness of the danger was
confirmed when several of Mendoza-Pablo’s relatives were
locked inside of their homes and burned alive by Guatemalan
government soldiers.
[4] The persecution of Mendoza-Pablo’s pregnant mother
directly informs everything that happened to him in the weeks
and months thereafter. Prematurely born to his distraught and
persecuted mother, Mendoza-Pablo suffered intensely during
his first three months of life because of severe malnourishment occasioned by his mother’s flight to the mountains.
While the precise long-term effect of these circumstances on
Mendoza-Pablo’s physical and mental development may well

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be impossible to determine,5 it would fly in the face of common experience not to recognize the likelihood that these
deprivations would have some deleterious and long-lasting
effects.6 Moreover, the well-grounded fear that the government would continue to persecute the remaining family members because of their Mayan ethnicity not only placed the
family in continuous fear but also directly precipitated their
flight to Mexico, which in turn inflicted further serious deprivations on petitioner.
[5] Accordingly, on the particular facts of this case, we
conclude that where a pregnant mother is persecuted in a
manner that materially impedes her ability to provide for the
basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn
child suffers serious deprivations directly attributable not only
to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that
child may be said to have suffered persecution and therefore
be eligible for asylum under the INA. See Jorge-Tzoc, 435
F.3d at 150 (concluding that the petitioner suffered persecution where he “was a child [of seven] at the time of the massa5

To the extent that the dissent suggests that suffering “lingering effects”
in the form of clinically diagnosable psychological illness or permanent
physical injury is a prerequisite to proving past persecution, this is not
supported by the case law of this Circuit. See, e.g., Singh v. I.N.S., 94 F.3d
1353 (9th Cir. 1996) (past persecution established by threats and violence
not resulting in permanent injuries).
6
Nothing in the INA or its implementing regulations requires that a petitioner produce “objective” or “expert” evidence. See Brucaj v. Ashcroft,
381 F.3d 602 (7th Cir. 2004) (no expert testimony required to substantiate
the psychological trauma associated with a petitioner’s persecution); 8
C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration”). Nevertheless, the record in this very case indicates that large numbers of ethnic
Mayans who fled Guatemala to Mexico during the civil war continue to
suffer from a variety of mental illnesses stemming from “traumatic
events” that occurred during the war, including “lack of food,” “lack of
housing,” and “lack of refuge or housing.”

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cres . . . and thus necessarily dependant on both his family
and his community” to an extent that an adult is not).7
[6] For the foregoing reasons, we conclude that the BIA’s
ruling that Mendoza-Pablo did not suffer past persecution
because his exposure to persecution was “second hand”
reflects an incorrect view of the applicable law, which permits
the BIA to take account of the indirect effects of persecution
as well as the direct effects, at least where, as here, the connection between the two is so immediate and strong. We
therefore remand Mendoza-Pablo’s petition to the BIA for
further proceedings not inconsistent with this Opinion.
PETITION GRANTED; REMANDED for further proceedings.

RAWLINSON, Circuit Judge, concurring in part, and dissenting in part:
I agree in principle that an infant may be subjected to persecution. However, I do not agree that the facts of this case
compel a conclusion that Petitioner Juan Ubaldo MendozaPablo was subjected to persecution as an infant. I respectfully
dissent.
Mendoza-Pablo was informed by his mother that he was
born several weeks premature, and was malnourished because
of the family’s forced retreat into the mountains, where food
was scarce. When Mendoza-Pablo was approximately three
months old, Mendoza-Pablo’s family fled to Mexico. In Mex7

In light of these conclusions, we need not reach Mendoza-Pablo’s contention that the IJ abused her discretion in denying Mendoza-Pablo’s
request for a continuance so as to obtain a professional psychological
assessment. On remand the BIA may nevertheless, in its discretion, choose
to remand to the IJ so that the record may be supplemented by a psychological report.

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ico, Mendoza-Pablo was unable to attend school and experienced difficulty in finding employment. Mendoza-Pablo also
reported frequent illness and recurring nightmares.
When asked why he was seeking asylum, Mendoza-Pablo
responded, “I’m applying for asylum because I don’t have
papers or anything . . . I don’t have where to live [sic]. I don’t
have anywhere to go. . . .” 1 When asked what would happen
if he returned to Guatemala, Mendoza-Pablo replied that he
“could be killed or other things that happened to [his] family
could also happen to [him].” However, when asked the identity of his potential killer(s), Mendoza-Pablo admitted that he
did not actually have any ideas as to who might want to kill
him. He speculated that the indigenous people “like [him]”
would want to kill him, but then conceded that he was not
identifiable as indigenous from his appearance.
Mendoza-Pablo never articulated a concrete reason to support his asserted fear of being killed. When the subject was
raised for the final time during the hearing, the best explanation he could muster was:
Well within me I just feel that if I were to be there
that I am an unknown person, that someone could
kill me there. It’s just things that I think about and
it’s something that I am afraid of.
...
Well I’m just afraid that because I’m someone
that’s unfamiliar, an unknown person, that someone
would kill me or perhaps someone burn me, or per1

The majority ignores this testimony and relies on Mendoza-Pablo’s
later testimony that he “thought” the time spent in the mountains “jeopardized” him. Majority Opinion, p. 1214 n.2. However, Mendoza-Pablo
admitted that he had absolutely no memory of the time spent in the mountains.

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haps something like that could happen to me
although I have no memory of all of that. I don’t
remember any of that.
(Emphases added).
The Immigration Judge (IJ) credited Mendoza-Pablo’s testimony, but held that the testimony was not sufficient to meet
Mendoza-Pablo’s burden of establishing either past persecution or a well-founded fear of future persecution on account
of a protected ground. The IJ based his finding on the following observations:
1.

Mendoza-Pablo’s claim of psychological trauma
was not supported by any evidence.

2.

Mendoza-Pablo did not suffer persecution as
defined by the BIA in Matter of Chen, 20 I&N
Dec. 16 (BIA 1989). The IJ specifically noted
that Mendoza-Pablo never personally witnessed
any of the atrocities inflicted upon his family
members and that Mendoza-Pablo was never
personally confronted by the persecutors.

3.

The fact that Mendoza-Pablo witnessed his
mother crying does not rise to the level of persecution.

4.

Mendoza-Pablo presented no evidence of any
negative residual effect of the three months he
spent in the mountains as an infant.

5.

Mendoza-Pablo’s expressed fear that he would
be killed if he returned to Guatemala was objectively unreasonable in view of Mendoza-Pablo’s
inability to identify anyone who would have reason to kill him.

6.

The persecution of Mendoza-Pablo’s family
took place over twenty years ago and Mendoza-

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Pablo presented no evidence that anyone was
seeking to harm Mendoza-Pablo after the expiration of twenty-plus years.
7.

Peace accords have been negotiated between the
factions previously engaged in civil war in Guatemala and the civil war ceased long ago.2

The Board of Immigration Appeals (BIA) affirmed the IJ’s
denial of relief. The BIA noted that Mendoza-Pablo had absolutely no recollection of the events that formed the basis for
his claim of persecution. The BIA explicitly upheld the IJ’s
determination that Mendoza-Pablo failed to establish that he
was the victim of past persecution. The BIA acknowledged
that Mendoza-Pablo’s persecution claim was predicated primarily on “alleged emotional harm . . .” Nevertheless, the
BIA agreed with the IJ that the lack of objective evidence or
expert testimony in support of the claimed harm rendered
Mendoza-Pablo’s claim without merit.
The BIA also agreed with the IJ that Mendoza-Pablo’s
“second-hand exposure to war” where he “never witnessed
any atrocities or was ever personally challenged or confronted,” was insufficient to establish past persecution.
Finally, the BIA affirmed the IJ’s ruling that there was
insufficient evidence in the record to support a finding that
Mendoza-Pablo had an objectively reasonable fear of future
persecution. The persecution of Mendoza-Pablo’s parents was
too remote to establish an objectively reasonable fear of
future persecution, and Mendoza-Pablo’s claims regarding
how he would be injured if he returned to Guatemala were
entirely speculative.
2

The majority counters that “many” of these facts relate to a fear of
future persecution. Majority Opinion, p. 1216 n.3. Even so, the majority
fails to explain why the findings that address a lack of past persecution do
not constitute substantial evidence.

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It is important to keep in mind that our review of the decision of the Board of Immigration Appeals (BIA) is extremely
limited. In order for us to reach a different conclusion, the
record must compel a different result. See INS v. EliasZacarias, 502 U.S. 478, 484 (1992); see also Padash v. INS,
358 F.3d 1161, 1165 (9th Cir. 2002). So long as there is substantial evidence in the record supporting the BIA’s decision,
that decision must be upheld. See id. Such record evidence
supports the BIA’s decision in this case.
“Persecution is an extreme concept that does not include
every sort of treatment our society regards as offensive. . . .”
Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir. 2004)
(citation and internal quotation marks omitted). Our precedent
generally involves some physical harm to the petitioner to
support a claim of past persecution. See Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005) (“Physical violence inflicted against an individual often meets the
requirement of severity that characterizes persecution. . . .”)
(citations, alteration, and internal quotation marks omitted).
As the BIA stated in its decision, Mendoza-Pablo offered no
evidence of physical harm. In addition, Mendoza-Pablo’s
claim of emotional harm was not substantiated by specific testimony, objective evidence or expert testimony. See Nahrvani,
399 F.3d at 1154 (observing that denial of asylum claim was
warranted because petitioner failed to substantiate his claim);
see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006)
(holding that petitioner failed to establish link between emotional harm and alleged persecution). Mendoza-Pablo’s
description of his struggles in Mexico do not establish past
persecution. See Gormley, 364 F.3d at 1178-80 (noting that
economic disadvantage does not constitute persecution). Similarly, Mendoza-Pablo’s vague testimony describing his fear
of future persecution was insufficient. See Lolong v. Gonzales, 484 F.3d 1173, 1179 (9th Cir. 2007) (en banc) (rejecting a “general, undifferentiated claim” of future persecution).

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The cases cited by the majority are easily distinguished.
Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2000) involved
an infant girl who was subjected to female genital mutilation,
a practice we have described as a permanent disfigurement of
the female genitalia with “serious, potentially life-threatening
complications. . . .” Id. at 972 (citation omitted). Unlike
Mendoza-Pablo, the infant in Benyamin was directly subjected to a physical injury with permanent effects, rising to
the level of persecution. See id.3
The cases cited by the majority stand for the unremarkable
proposition that age is a factor to be considered in determining whether persecution has occurred. See Hernandez-Ortiz v.
Gonzales, 496 F.3d 1042 (9th Cir. 2007; see also Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004); Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006); Abay v. Ashcroft, 368
F.3d 634, 640 (6th Cir. 2004). These cases in no way undermine the administrative resolution of Mendoza-Pablo’s asylum claims. Indeed, both the IJ and the BIA expressly
considered Mendoza-Pablo’s age at the time of the asserted
persecution.
The best the majority can do is speculate regarding the likelihood that the “deprivations” experienced by Mendoza-Pablo
“would have some deleterious and long-lasting effects. . . .”
Majority Opinion, p. 1221. The majority cites Brucaj v. Ashcroft, 381 F.3d 602 (7th Cir. 2004), for the proposition that
the credible testimony of the applicant may sustain his burden
of proof. See Majority Opinion, p. 1221 n.6. I have no quarrel
3

The majority responds by citing Knezvic v. Ashcroft, 367 F.3d 1206,
1211 (9th Cir. 2004) for the proposition that persecution “can include inter
alia, severe harassment, threats, violence and discrimination; forced institutionalization; violence against family, and seizure of family land and
ration card; and mental, emotional and psychological harm.” Majority
Opinion, p. 1219 n.4 (parentheses and internal quotation marks omitted).
The flaw in the majority’s argument is that the person seeking asylum
must prove the persecution. See Knezvic, 367 F.3d at 1211, and MendozaPablo failed to do so.

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with the expressed proposition. But the proposition is no substitute for evidence. And the evidence in this case, including
Mendoza-Pablo’s testimony, contains not a shred of proof of
any lingering effects of the deprivations he suffered. Faced
with this lack of evidence, it is incomprehensible that the
majority purports to be compelled to reverse the BIA’s ruling.
I cannot agree.