Hernandez-Ortiz v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUILLERMO HERNANDEZ-ORTIZ; 
FLORENTINO HERNANDEZ-ORTIZ, No. 04-71509
Petitioners, Agency Nos.
v.  A76-346-033
ALBERTO R. GONZALES, Attorney A76-346-038
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 20, 2007—San Francisco, California
Filed August 8, 2007
Before: John T. Noonan, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Noonan
9461
HERNANDEZ-ORTIZ v. GONZALES 9463
COUNSEL
Todd Pickles, San Francisco, California, for the petitioners.
Blair O’Connor, United States Department of Justice, Wash-
ington, D.C., for the respondent.
OPINION
NOONAN, Circuit Judge:
Guillermo Hernandez-Ortiz (Guillermo) and his younger
brother, Florentino Hernandez-Ortiz (Florentino), petition for
review of a decision of the Board of Immigration Appeals (the
Board) affirming without opinion a decision of an Immigra-
tion Judge (the IJ) denying their requests for asylum and with-
holding of removal. As the Board’s affirmance was summary,
we review the decision of the IJ. Acosta v. Gonzales, 439 F.3d
550, 552 (9th Cir. 2006). Holding that the IJ erred as a matter
of law, we grant the petition and remand.
FACTS AND PROCEEDINGS
Guillermo and Florentino are natives of Guatemala and are
of Mayan descent. They entered the United States from Mex-
ico without documentation in 1991. Florentino applied for
asylum on December 5, 1997, Guillermo on February 18,
1998. In 2000, the IJ consolidated their petitions. Evidentiary
hearings followed on July 12, 2000, on November 30, 2001,
and on September 12, 2002. The brothers submitted numerous
documents on country conditions in Guatemala, including the
report from the commission established by the Oslo Accord
of June 23, 1994 (Comision para el Esclarecimiento Historico
or CEH). These background documents were accepted into
evidence. The brothers testified to the following events:
9464 HERNANDEZ-ORTIZ v. GONZALES
In 1982, the two brothers, then aged nine and seven respec-
tively, lived in Gracias a Dios, a village of about 500 families
in the northern part of the department of Huehuetenango,
Guatemala. The village was inhabited almost exclusively by
Mayan Indians. The brothers’ parents were Tomas
Hernandez-Perez and Tiburcia Ortiz Enriquez and their older
brother, who was in his twenties, was named Humberto. The
family lived on corn and beans that they planted and raised on
land they owned about 40 minutes walking time distant from
the village. In 1982, their lives were disrupted by the arrival
of the Guatemalan army in Gracias a Dios.
“[A] lot” of soldiers came into the village. They carried
weapons. They permitted no one to leave the village even to
tend to their crops outside the village. The boys’ parents were
afraid of the soldiers and would not let the boys go outdoors.
Humberto, the older brother, was called by the soldiers to
serve in a civil patrol hunting guerillas; he fled, and the sol-
diers told the brothers’ father that he would be killed if he
didn’t find Humberto. The soldiers came in the night and beat
the boys’ father in front of their mother and took him away.
He returned and the family fled to the mountains. A week
later they crossed the border to Mexico and took shelter in a
refugee camp in Chiapas called La Gloria. While they were
there, they learned from a Mexican official that the Guatema-
lan army had killed Humberto. Each brother feared to return
to Guatemala lest he be regarded as a sympathizer with the
guerillas and killed by the army.
The brothers’ testimony was supplemented by that of Jaime
Ross, a psychotherapist practicing in Mountain View, Califor-
nia, who submitted an evaluation of the brothers after he had
interviewed them for three hours in 1999. His report is part of
the record. Dr. Ross found that the brothers had “rather
intense” symptoms of trauma from being driven out of their
home country and losing their brother. Florentino appeared to
him to be more deeply affected than Guillermo; both were
“very traumatized.”
HERNANDEZ-ORTIZ v. GONZALES 9465
At the hearing of September 12, 2002, Florentino corrected
his earlier testimony in which he’d said he’d never left the
United States. He now testified that he had once gone to Mex-
ico to visit his parents at La Gloria; he returned to this country
giving an alias; he was not permitted to enter; he tried again
and succeeded in walking across the border. He concealed his
trip from Guillermo because Guillermo had told him not to
leave. Florentino’s own misstatements to the IJ when first
questioned had been, he said, to continue this deception of his
brother.
At the conclusion of this session, the IJ gave her final deci-
sion orally, denying the brothers’ requests for relief. Appeals
to the Board and then to us followed.
ANALYSIS
[1] Legal Error. In 2004, Joel Flaum, then Chief Judge of
the Seventh Circuit, summed up the law:
[A]ge 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.
The Guidelines for Children’s Asylum Claims
advises that “harm a child fears or has suffered . . .
may be relatively less than that of an adult and still
qualify as persecution.” See Guidelines for Chil-
dren’s Asylum Claims, INS Policy and Procedural
Memorandum from Jack Weiss, Acting Director,
Office of International Affairs to Asylum Officers,
Immigration Officers, and Headquarters Coordina-
tors (Asylum and Refugees) 14, (Dec. 10, 1998),
available at 1998 WL 34032561. Indeed, other
courts have used age as a determinative factor in
deciding whether an applicant is eligible for asylum.
See, e.g., Abay v. Ashcroft, 368 F.3d 634, 640 (6th
Cir. 2004) (overturning, on the basis of age, the
9466 HERNANDEZ-ORTIZ v. GONZALES
immigration judge’s finding that a nine-year-old
applicant had not adequately expressed a fear of
future persecution).
Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004).
In 2006, a per curiam opinion of the Second Circuit
addressed the asylum petition of a native of Guatemala of
Mayan stock who, at the age of seven, had lived in a village
invaded by the Guatemalan army. Jorge-Tzoc v. Gonzales,
435 F.3d 146, 147-48. His sister, his brother-in-law, and his
brother-in-law’s mother were shot. Id. The child did not see
the killings but heard of them. See id. The court took into
account the report of the CEH, written “to clarify with objec-
tivity . . . the human rights violations and acts of violence
connected with the armed confrontation.” Id. at 149 (citation
omitted). The report stated that the violence of the army was
aimed at a particular social group, the Mayans. Id. The court
quoted from the report:
[S]tate forces and related paramilitary groups were
responsible for 93% of the violations documented by
the CEH, including 92% of the arbitrary executions
and 91% of forced disappearances . . . [T]hroughout
the armed confrontation the Army designed and
implemented a strategy to provoke terror in the pop-
ulation [which] became the core element of the
Army’s operations, including those of a strictly mili-
tary nature as well [as] those of psychological nature
and those that were called “development” opera-
tions.
. . . Jorge-Tzoc was a child at the time of the massa-
cres and thus necessarily dependent on both his fam-
ily and his community . . . Further, while the family
remained in their village, Jorge-Tzoc’s mother was
afraid to go out of their home to obtain needed gro-
ceries . . . Jorge-Tzoc’s father lost his land and his
HERNANDEZ-ORTIZ v. GONZALES 9467
animals as a result of [their eventual] move. This
combination of circumstances could well constitute
persecution to a small child totally dependent on his
family and community.
Id. at 150.
[2] Against the background of ethnic cleansing, the court
quoted with approval the summary of the law made by Judge
Flaum in Liu and concluded that it was legal error for the IJ
not to have considered the events in the village and the harm
suffered by Jorge-Tzoc’s family “from the perspective of a
small child.” Id. The IJ’s finding that Jorge-Tzoc did not
establish past persecution was vacated and the case remanded.
Id. at 151.
[3] 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 have already quoted with
approval the INS Guidelines for Children’s Asylum Claims
referenced above. Zhang v. Gonzales, 408 F.3d 1239, 1247
(9th Cir. 2005). 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.
[4] The rule we articulate for this circuit is new but the
principle is old. The three circuit cases reflect this common
sense proposition. The IJ did acknowledge the ages at which
Guillermo and Florentino experienced the injuries to which
they testified. The IJ, however, did not look at the events from
their perspective, nor measure the degree of their injuries by
their impact on children of their ages. She committed legal
error.
9468 HERNANDEZ-ORTIZ v. GONZALES
[5] Credibility. The IJ focused her attention on misrepre-
sentations made by Florentino in connection with his search
for his parents in Chiapas. The relevance of this trip and the
misrepresentations is hard to see. The IJ herself raised the
question whether Florentino’s misstatements were material.
They were not. See Singh v. Ashcroft, 367 F.3d 1139, 1143
(9th Cir. 2004) (“minor inconsistencies or factual omissions
that do not go to the heart of the asylum claim are insufficient
to support [an adverse credibility finding]”).
Florentino’s shaky dating of his trip and his communica-
tions with his parents furnished the IJ with a reason to ques-
tion Guillermo’s dating of a telephone call to their parents in
which he learned the whereabouts of “Comandante Her-
nandez.” The IJ supposed that because Florentino failed to
find his parents at La Gloria during his 1997 trip, the 1998
phone conversation between the brothers and their parents
was an “impossibility.” However, it is not clear that the par-
ents were not in La Gloria in 1998, only that Florentino could
not find them in 1997.
[6] The IJ’s credibility findings, we are compelled to con-
clude, are not supported by substantial evidence. See Cheb-
choub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001).
The IJ’s Alternative Analysis and Findings. Aware of the
fragility of her findings on credibility, the IJ offered what she
styled “Alternative Analysis and Findings of Law.” In this
analysis she accepted the brothers’ testimony as to the events
in their village in 1982, but asked whether they had a fear of
persecution if returned. “The first question” she addressed
was whether they had suffered past harm rising to the level of
the past persecution. The IJ found this question “very, very
difficult.” As in her credibility determination, the IJ did not
take into consideration the age of the brothers in 1982. The
legal error infected her conclusion that the brothers failed to
meet their burden of proof as to whether they were subjected
to past persecution.
HERNANDEZ-ORTIZ v. GONZALES 9469
[7] For the reasons stated, the petition is GRANTED. The
IJ’s decision is VACATED and the case REMANDED for
further consideration of the petitioners’ claims for asylum and
withholding of removal.
GRANTED VACATED AND REMANDED.