In a surprising reversal, the U.S. Court of Appeals for the
First Circuit recently vacated its April 6, 2010
decision1 in Mejilla-Romero v. Holder upholding
the denial of asylum to a child. At a panel rehearing Aug. 6, 2010,
the court remanded the case to the Board of Immigration Appeals
(BIA) with instructions to reconsider its decision de novo
in light of its failure to apply child-sensitive administrative
guidelines and international norms for adjudicating children's
asylum claims.2 The two panel decisions mark the first
time the First Circuit has invoked the guidelines.
Issued by the United Nations High Commissioner for
Refugees,3 the INS (now DHS)4 and the
Department of Justice5 beginning in the late 1990s, the
guidelines recognize the profound limitations and vulnerabilities
of children owing to their level of development and inexperience.
As a result, they require adjudicators to give wide latitude to the
oral testimony of children, and to accord greater compensatory
weight to documentary and other objective evidence. The Second,
Sixth, Seventh, and Ninth Circuits have all recognized and applied
the guidelines over the last decade.6
The First Circuit's about-face was ironic given the three-judge
panel's own failure to apply the guidelines back in April, when it
found that the immigration judge had properly denied asylum. That
lapse elicited a passionate dissent from Circuit Judge Norman H.
Stahl, who excoriated his colleagues for upholding a decision that
relied almost exclusively on the oral testimony of a child to
establish the factual basis of his past persecution claim. The
failure of the majority to follow established guidelines for
adjudicating children's asylum claims, he wrote, "has resulted in a
decision that is both legally incorrect and that inflicts a
terrible human price on a child who has turned to the United States
Celvyn Asael Mejia Romero8 was 13 years old when he
testified before the immigration judge. He based his asylum claim
on the persecution he had suffered as a member of a family engaged
in a decades-long struggle for land rights in Honduras. Celvyn's
step-grandfather was a founding member of an organization of
landless peasants that had organized legal takeovers of idle land
under land reform legislation enacted in the 1970s. He was murdered
in the 1980s. Celvyn's uncle and two other family members were also
murdered for their activism, the uncle when Celvyn was just 5 years
old. The record included evidence of government complicity in the
murders, owing to the documented ability of the local landholding
elite to operate vigilante groups with impunity.
Celvyn's grandmother, with whom he lived together with two young
cousins, had established a home on idle land. This earned her the
enmity of her wealthy neighbors -- especially the family that had
owned the land. A sustained effort to evict the newcomers ensued,
producing a series of events that ultimately caused the grandmother
to send her 11-year old grandson -- unaccompanied -- to the United
States, where his mother had fled some years earlier. The last
incident consisted of a terrifying assault inside the family home
by a member of the landowning family, Hugo Mejia (no relation), who
chased the elderly woman and three children wielding a machete, and
proceeded to destroy the interior of the house and the crops
planted around it.
The immigration judge denied Celvyn's claim, finding that the
child-petitioner had failed to establish past persecution. The
board and the First Circuit agreed. In so doing, the courts
virtually ignored more than 1,800 pages of supporting evidence,
including an uncontested diagnosis of post-traumatic stress
disorder that was unequivocally attributed to the attacks, the
affidavits of five experts, and the testimony of the child's
As Judge Stahl pointed out in April, all three courts had based
their conclusions on the oral testimony of a child who, consistent
with his age, was unable to articulate how and why he was harmed
with any degree of complexity. As a result, the courts recounted
the factual basis of the child's claim in terms that were reductive
to the point of caricature. The immigration judge described them as
"a series of altercations with a disgruntled neighbor." According
to the board, Celvyn's "grandmother's neighbor, Hubert, destroyed
his grandmother's house and would call the respondent names and
throw stones at him. The respondent did not know why Hubert did
such things." In the words of the First Circuit majority, "Hubert
attacked Mejilla-Romero's grandmother's home with a machete, and he
once destroyed the garden." That's it for the persecution of this
petitioner. Mere harassment or bullying, of course, does not
constitute persecution. The First Circuit made passing reference to
the murder of Celvyn's family members, but failed utterly to link
these murders to the family's sustained involvement in political
struggle with an entrenched landed elite and its government
backers. Instead, it found that the fifth-grader's testimony
"contained no clear explanation" for the motivation of "Hubert" or
In his dissent, Stahl found that the majority's
mischaracterization of the facts necessarily produced a holding
that failed to address the petitioner's actual claim, preventing
meaningful review. This failure alone, he wrote, called for a
remand. But more troubling, in his view, was the majority's failure
to give effect to guidelines that required recourse to the
objective record to supplement a child's testimony. After his own
exhaustive review of the supporting evidence, Stahl concluded, "if
this is not a case where we can reverse a denial of asylum, I have
trouble imagining the set of facts that would permit such a
reversal."9 He observed in a footnote that the First
Circuit is "among the least likely to reverse a decision of the
The petition for rehearing was brought by attorneys Nancy J.
Kelly, John Willshire-Carrera, and the Harvard Immigration &
Refugee Clinic of Greater Boston Legal Services. The UNHCR, the
Center for Gender & Refugee Studies, Immigration Child Advocacy
Project, National Immigrant Justice Center, Tahirih Justice Center,
professor Deborah Anker, professor Rebecca Sharpless and professor
David B. Thompson all joined as amici.
Amy M. Grunder practices appellate immigration in
Cambridge. Formerly a public finance attorney at Palmer & Dodge
LLP, she has litigated asylum appeals before the Board of
Immigration Appeals and the U.S. Courts of Appeals for the Fourth,
Fifth, Eighth and Eleventh Circuits.
1Mejilla-Romero v. Holder, 600 F.3d 63 (1st
2Mejilla-Romero v. Holder, 2010 U.S. App.
LEXIS 16340 (Aug. 6, 2010) (rehearing).
3UNHCR, Policies and Procedures in Dealing with
Unaccompanied Children Seeking Asylum, February 1997.
4Guidelines for Children's Asylum Claims, U.S.
Department of Justice, INS Policy and Procedures Memorandum (Dec.
10, 1998), available at 1998 WL 34032561.
5Operating Policies and Procedures Memorandum
04-07, Guidelines for Immigration Court Cases Involving
Unaccompanied Alien Children, Executive Office of Immigration
Review, U.S. Dep't of Justice (Sept. 16, 2004).
6Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir.
2006); Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004);
Kholyavskiy v. Mukasey, 540 F.3d 555 (7th Cir. 2008);
Lui v. Ashcroft, 380 F.3d 307 (7th Cir. 2004);
Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir.
2007); Zhang v. Gonzales, 408 F.3d 1239 (9th Cir.
7Mejilla-Romero, 600 F.3d at 77 (Stahl, N.,
8The child-petitioner's correct name. All facts,
including descriptions of the underlying decisions, are taken from
Judge Stahl's dissent. See Mejilla-Romero v. Holder, 600
F.3d at 76 (Stahl, N., dissenting).
9Id. at 92.
10Id. at 92 n.30.