Lawyers Journal

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 for protection."⁷

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 mother.

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 his family.

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 BIA."¹⁰

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 Cir. 2010).
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. 2005).
⁷Mejilla-Romero, 600 F.3d at 77 (Stahl, N., dissenting).
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.