Ordonez-Quino v. Holder , 760 F.3d 80 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1215
MANUEL ORDONEZ-QUINO,
Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Nancy J. Kelly, John Willshire Carrera, and Harvard
Immigration & Refugee Clinic, on brief for Petitioner.
Dara S. Smith, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, Office of
Immigration Litigation, on brief for Respondent.
July 23, 2014
THOMPSON, Circuit Judge. Petitioner Manuel Ordonez-Quino
seeks review of a Board of Immigration Appeals' ("BIA") decision
affirming an Immigration Judge's ("IJ") denial of his requests for
asylum, withholding of removal, and protection under the United
Nations Convention Against Torture. Among other things, he says
the BIA's and IJ's determinations that he did not demonstrate past
persecution on account of a protected ground were not supported by
substantial evidence. Because we agree, we grant his petition and
remand for further proceedings.
I. Facts
We take the facts primarily from Ordonez-Quino's
affidavit and testimony before the IJ, who found him credible,
supplementing with some history for context. See Ayala v. Holder,
683 F.3d 15, 16 (1st Cir. 2012).
Ordonez-Quino was born in Zacualpa, Department of Quiché,
Guatemala, on December 4, 1974. He is an indigenous Mayan Quiché.
His native language is Quiché; he speaks very little Spanish.
Ordonez-Quino grew up during the most violent period of
the brutal civil war that ravaged Guatemala from 1962 through 1996.
In his affidavit and testimony, he related haunting childhood
memories of the Guatemalan military's attacks on his family and
their community. He said the Guatemalan government singled them
out for persecution because of their indigenous race and ethnicity,
their real and imputed political opinions, and their membership in
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various social groups. During the attacks, he said, the military
"shot at us, bombed us, destroyed our homes[,] and killed our
people. I witnesse[d] many terrible things."
In 1980, during one such attack, a military helicopter
dropped a bomb next to Ordonez-Quino and his father. Ordonez-Quino
was only five or six years old. His father was trying to carry him
to safety in the surrounding mountains when the nearby explosion
knocked Ordonez-Quino to the ground. His father scooped him back
up and ran into hiding, but the damage was done. Either as a
result of the explosion or the fall, Ordonez-Quino suffered a
severe illness, experiencing high fevers and extreme headaches for
days. Because soldiers controlled the area, his parents could not
seek medical attention and instead applied traditional remedies.
Due to his injuries, Ordonez-Quino ultimately became almost
completely deaf in both ears.
From that time forward, Ordonez-Quino's hearing loss
affected him deeply. Because he could not hear, he lost his
ability to speak clearly. It was difficult for him to communicate
and develop relationships. He struggled to learn at the same pace
as his peers. He was more vulnerable to violence because he could
not hear the onset of military raids.
In the years that followed, soldiers continued to
victimize Ordonez-Quino's community. At some point, his family's
home and lands were destroyed. To survive, they went to work at a
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farm on the coast of Guatemala. They all "worked very hard and
lived very hard lives," but Ordonez-Quino suffered more because he
could not understand Spanish or hear what his supervisors yelled at
him. He says he "live[d] in constant anxiety and fear."
Some time later, Ordonez-Quino went to work in the
textile mills in Guatemala City, where he was often mistreated
because he could not hear or understand Spanish. During this
period, his parents helped him arrange a marriage to a Quiché woman
from his hometown. They later had a daughter together.
While he was in Guatemala City, Ordonez-Quino reports
that he was repeatedly targeted by racist gangs because of his
Quiché ethnicity. Again, his inability to hear or to understand
Spanish put him in greater danger because he could not hear the
gangs' threats or detect their approach.
Ordonez-Quino left Guatemala City after a violent gang
attack in 2005, when gang members "started beating [him] as if they
were going to kill [him]." While fleeing the gang, he ran into a
barbed wire fence, causing permanent scars to his head and arm.
Fearing that he might not be able to escape if he were
attacked again, Ordonez-Quino returned briefly to his hometown
where he hid in his family's home. He came to the United States
soon after because his family warned him it was not safe to stay in
Guatemala. Today, his family tells him not to return to Guatemala
due to ongoing violence against the Mayan Quiché community.
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II. Administrative Proceedings
Ordonez-Quino entered the United States through Mexico
without inspection in July 2005. He made his way to Providence,
Rhode Island to live with family members, and he found work at the
Michael Bianco factory in New Bedford, Massachusetts.
On March 6, 2007, U.S. Immigration and Customs
Enforcement raided the factory and detained Ordonez-Quino, along
with over 300 other workers. The next day, the government issued
a Notice to Appear, charging Ordonez-Quino with removability under
8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had entered the United
States without inspection or parole.1
On October 4, 2010, Ordonez-Quino appeared before an IJ
in Boston, Massachusetts, seeking (1) asylum pursuant to 8 U.S.C.
§ 1158; (2) withholding of removal pursuant to 8 U.S.C.
§ 1231(b)(3); and (3) protection under the Convention Against
Torture pursuant to 8 C.F.R. §§ 1208.16-18. Ordonez-Quino had
great difficulty testifying because he could not hear his
1
Ordonez-Quino was taken first to Fort Devens, Massachusetts,
and then transferred to a detention facility in El Paso, Texas. On
March 22, 2007, he appeared before an IJ in El Paso without
counsel, without a Quiché translator, and without hearing
assistance. The IJ ordered him removed in short order. Ordonez-
Quino subsequently obtained counsel and appealed the IJ's decision,
arguing he had not received a full and fair hearing, in violation
of his due process rights. Both Ordonez-Quino and the Department
of Homeland Security moved to remand his case to the IJ, and the
BIA acquiesced. He later applied for and was granted a change of
venue to Boston, Massachusetts.
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attorney's or the IJ's questions well, despite the assistance of a
hearing aid.2
In addition to his testimony and personal affidavit,
Ordonez-Quino submitted the following materials to the IJ: the
testimony and affidavit of a doctor verifying Ordonez-Quino's
hearing impairment and noting his improvement with a hearing aid;
the report of Guatemala's Commission for Historical Clarification
("Historical Clarification Report" or the "Report"), which, inter
alia, found that the Guatemalan military committed acts of genocide
against indigenous Guatemalans in several regions — including
Ordonez-Quino's hometown of Zacualpa — during the Guatemalan Civil
War;3 decisions by the U.S. Courts of Appeals for the Second and
Ninth Circuits addressing asylum claims brought by indigenous
2
Ordonez-Quino obtained one hearing aid in the United States
prior to appearing before the IJ. He could not afford a second
one, but he says he hopes to get another if he is permitted to stay
in the United States.
3
Comm'n of Historical Clarification, Guatemala Memory of Silence: Report
of the Commission for Historical Clarification, Conclusions and
Recommendations, Conclusions, ¶¶ 38-41 (1999), available at
http://www.aaas.org/sites/default/files/migrate/uploads/mos_en.pdf ("Historical
Clarification Report" or the "Report"). The Commission was established through
the June 1994 Oslo Accord "to clarify with objectivity, equity[,] and
impartiality, the human rights violations and acts of violence connected with
the armed confrontation that caused suffering among the Guatemalan people,"
during the civil war. Id. at Prologue, 11.
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Guatemalans;4 several documents describing ongoing discrimination
against Mayans in Guatemala; numerous reports and articles issued
by the U.S. State Department and prominent human rights
organizations detailing the history of violence and recent human
rights violations against Mayans in Guatemala; and several
documents about gang violence in Guatemala.
After the hearing, the IJ denied Ordonez-Quino's requests
for relief and ordered him removed. Though the IJ found
Ordonez-Quino's testimony credible and excused his failure to seek
4
Those cases were: Perez Calmo v. Mukasey, 267 F. App'x 640(9th Cir. 2008) (unpublished) (remanding IJ's denial of asylum
because (1) petitioner's failure to show persecution was directed
specifically at her did not necessarily preclude finding of past
persecution, and (2) substantial evidence did not support IJ's
finding of no nexus between soldiers' invasion of petitioner's
village and a protected ground); Hernandez-Ortiz v. Gonzales, 496
F.3d 1042 (9th Cir. 2007) (remanding IJ's denial of asylum and
withholding of removal because (1) IJ's adverse credibility
findings were not supported by substantial evidence, and (2) IJ
failed to consider harm petitioners and family suffered from
perspective of small children); Jorge-Tzoc v. Gonzales, 435 F.3d
146 (2d Cir. 2006) (per curiam) (remanding IJ's denial of asylum
because IJ failed (1) to take entire record into account and (2) to
consider harm petitioner suffered cumulatively and from perspective
of small child); and Velasquez v. Ashcroft, 81 F. App'x 673 (9th
Cir. 2003) (unpublished) (remanding IJ's denial of asylum and
withholding of removal because IJ failed to consider whether
violence was committed against petitioner by actors the government
was unwilling or unable to control).
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asylum before the one-year filing deadline,5 the IJ concluded that
Ordonez-Quino did not qualify for asylum because he had not
demonstrated past persecution or a well-founded fear of future
persecution on account of a protected ground.
As for past persecution, the IJ found that the Guatemalan
military attacked Ordonez-Quino's community during the war because
they thought there were guerrillas within or nearby, not because
the community was Mayan Quiché. While the IJ acknowledged that
racism may have informed the military's beliefs about the
community, he said racism itself was not the reason for bombing in
or near the villages, and "[t]he purpose of the bombing was not to
destroy the Mayan Quich[é] community." The IJ further found no
evidence that Ordonez-Quino was later accosted by gangs because of
his Mayan Quiché identity. Accordingly, the IJ held that Ordonez-
Quino had not established the required nexus between the past harm
he suffered and a protected ground.
As for fear of future persecution, while the IJ
acknowledged that the Mayan Quiché population continues to suffer
pervasive discrimination in Guatemala, he found that their present
mistreatment does not rise to the level of persecution. Moreover,
5
The IJ excused Ordonez-Quino's failure to apply for asylum
before the one-year mark because Ordonez-Quino's "hearing loss with
the resultant inability to communicate, as well as the possibility
of some neurological damage resulting from his inability to hear
and to learn . . . constitute[d] exceptional circumstances relating
to the delay in his having filed his application for asylum." The
government has not challenged this decision.
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though Ordonez-Quino might fear further violence, the IJ said he
had not shown he would be targeted by gangs or others in the future
on account of a protected ground. In fact, family members who
share his protected traits are living in Guatemala safely.
Accordingly, the IJ held that Ordonez-Quino was not
eligible for asylum. He likewise found that Ordonez-Quino was not
eligible for relief under the more stringent "clear probability of
persecution" standard for withholding of removal, or for protection
under the Convention Against Torture.
Ordonez-Quino appealed the IJ's decision to the BIA. He
challenged the IJ's finding of no nexus between the past harm he
suffered and a protected ground, and he argued he was eligible for
asylum based both on past persecution and a well-founded fear of
future persecution. He also expressly requested a discretionary
grant of humanitarian asylum based on the severity of the past
persecution he had experienced and the serious harm he would suffer
if returned to Guatemala, in case the BIA found that changed
circumstances in Guatemala undercut the reasonableness of his fear
of future persecution.
On January 10, 2013, the BIA affirmed the IJ's decision
in a brief opinion. First, the BIA agreed that Ordonez-Quino had
not established a sufficient link between the past harms he
suffered and a protected ground to qualify for asylum. Second, it
found that the harms Ordonez-Quino said he experienced in the past
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did not amount to persecution. Third, the BIA said that even if
Ordonez-Quino had established past persecution on account of a
protected ground, changed country conditions would have rebutted
his claim to a well-founded fear of future persecution.
Finally, the BIA found that Ordonez-Quino had waived any
claim to humanitarian asylum by not specifically raising it before
the IJ. It went on to say that even if Ordonez-Quino had not
waived this claim, Ordonez-Quino was not eligible for humanitarian
asylum because he had not established past persecution. In a
footnote, the BIA added:
Even if [Ordonez-Quino] had shown that his
injuries during the civil war were on account
of a protected ground sufficient to establish
past persecution, [Ordonez-Quino's] case would
not warrant humanitarian asylum based on the
special considerations discussed in Matter of
Chen, [20 I. & N. Dec. 16, 18-19 (BIA 1989)].
This timely appeal followed.
III. Discussion
Before us, Ordonez-Quino contends that the BIA's and IJ's
determinations that he did not establish past persecution on
account of his race, ethnicity, and/or imputed political opinion
were unsupported by substantial evidence. He further argues that
the BIA committed legal error by treating humanitarian asylum as a
form of relief that an applicant must request independent of a
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past-persecution-based asylum claim in order to preserve it.6 We
address each of his arguments in turn.
A. Standard of Review
We usually review decisions of the BIA, not the IJ.
Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013). But where, as
here, "'the BIA both adopts the findings of the IJ and discusses
some of the bases for the IJ's decision, we have authority to
review the decisions of both the IJ and the BIA.'" Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004) (quoting Chen v. Ashcroft,
376 F.3d 215, 222 (3d Cir. 2004)); see id. ("[W]here the BIA's
decision adopts portions of the IJ's opinion, we review those
portions of the IJ's opinion that the BIA has adopted."); see also
Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012) ("[W]here,
as here, the BIA adopts portions of the IJ's findings while adding
its own gloss, we review both the IJ's and the BIA's decisions as
a unit."); Cabas v. Holder, 695 F.3d 169, 173 (1st Cir. 2012)
("Because the BIA adopted in part the IJ's decision . . . but also
6
Ordonez-Quino also says the BIA erred as a matter of law by
not recognizing imputed political opinion as a basis for asylum.
If that is indeed what the BIA has done here, we agree it would be
error. See Singh v. Mukasey, 543 F.3d 1, 6 (1st Cir. 2008) ("[A]n
imputed political opinion, whether correctly or incorrectly
attributed, may constitute a reason for political persecution
within the meaning of the [Immigration and Nationality] Act."
(internal quotation marks omitted)). But because we find the IJ
and BIA erred by not finding Ordonez-Quino eligible for asylum
based on the grounds of race and ethnicity, we need not deal with
this argument. We likewise need not discuss Ordonez-Quino's
arguments that the BIA and IJ erred by denying his requests for
withholding of removal and Convention Against Torture relief.
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provided additional analysis, we review both decisions.").
We review the BIA's and IJ's interpretations of law de
novo, "subject to appropriate principles of administrative
deference." Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010).
We review their findings of fact — including whether persecution
occurred on account of a protected ground — "under the familiar and
deferential substantial evidence standard." Ivanov, 736 F.3d at
11. We will respect their findings so long as they are "'supported
by reasonable, substantial, and probative evidence on the record
considered as a whole.'" Larios, 608 F.3d at 107 (quoting I.N.S.
v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). "However, 'our
deference is not unlimited,'" and we must reject the BIA's and IJ's
findings if "'we cannot conscientiously find that the evidence
supporting them is substantial, when viewed in the light that the
record in its entirety furnishes, including the body of evidence
opposed to [their] view[s].'" Ivanov, 736 F.3d at 11 (quoting
Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir. 2009)) (internal
brackets omitted); see also Mukamusoni v. Ashcroft, 390 F.3d 110,
119 (1st Cir. 2004). We will reverse if the record would compel a
reasonable fact-finder to reach a contrary conclusion. Vasili v.
Holder, 732 F.3d 83, 89 (1st Cir. 2013) (quoting Chhay v. Mukasey,
540 F.3d 1, 5 (1st Cir. 2008)).
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B. Asylum
To be eligible for asylum, a petitioner must show he is
unwilling or unable to return to his home country "because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see id.§ 1158(b)(1)(B)(i); Ivanov, 736 F.3d at 11. Proof of past
persecution creates a presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1); Ivanov, 736 F.3d at 11.
The government may rebut this presumption by demonstrating, by a
preponderance of the evidence, that "[t]here has been a fundamental
change in circumstances such that the [petitioner] no longer has a
well-founded fear of persecution," or that the petitioner "could
avoid future persecution by relocating to another part of [his]
country of nationality . . . and under all the circumstances, it
would be reasonable to expect [him] to do so." 8 C.F.R.
§ 1208.13(b)(1)(i)(A)-(B).
1. Past Persecution
Persecution is a fluid term, not defined by statute.
Ivanov, 736 F.3d at 11 (quoting Lopez de Hincapie v. Gonzales, 494
F.3d 213, 217 (1st Cir. 2007)). We know it requires that "the sum
of [a petitioner's] experiences . . . add up to more than ordinary
harassment, mistreatment, or suffering." Lopez de Hincapie, 494
F.3d at 217. It "normally involves 'severe mistreatment at the
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hands of [a petitioner's] own government,'" or "'non-governmental
actors . . . in league with . . . or . . . not controllable by the
government.'" Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012)
(quoting Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005)). But
within these broad parameters, courts usually assess whether harm
rises to the level of persecution on a case-by-case basis. Sok v.
Mukasey, 526 F.3d 48, 53 (1st Cir. 2008) (quoting Aguilar-Solis v.
I.N.S., 168 F.3d 565, 570 (1st Cir. 1999)).
For purposes of asylum, a petitioner must demonstrate
that the harm he experienced occurred "on account of" a statutorily
protected ground. Ivanov, 736 F.3d at 12. After passage of the
REAL ID Act of 2005, this means a protected ground must be at least
"'one central reason' for the mistreatment," and it must not be
"'incidental, tangential, superficial, or subordinate to another
reason for harm.'"7 Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir.
2008) (quoting In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA
2007)); see 8 U.S.C. § 1158(b)(1)(B)(i). A petitioner need not
provide direct proof of motive, but he must put forth "some
evidence on the subject due to its importance in the statutory
scheme." Singh, 543 F.3d at 5 (citing Babani v. Gonzales, 492 F.3d
20, 22-23 (1st Cir. 2007)).
7
The REAL ID Act of 2005 applies to all applications that,
like Ordonez-Quino's, were filed on or after May 11, 2005. See 8
U.S.C. § 1158 note (effective date of 2005 amendment); Moreno v.
Holder, 749 F.3d 40, 43 (1st Cir. 2014).
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a. Nexus to a Protected Ground
Ordonez-Quino says the IJ's determination that he did not
establish the requisite nexus between the harms he suffered and his
Mayan Quiché race and ethnicity was not supported by substantial
evidence. We agree. In reaching this conclusion, it appears that
the IJ — and the BIA following suit — ignored or unreasonably
interpreted crucial documentary evidence linking Ordonez-Quino's
experiences to his protected Mayan Quiché identity.
With respect to the attack that caused Ordonez-Quino to
lose his hearing, the IJ said:
The bombing which occurred in 1980 and during
the period of the civil war cannot be found to
be precipitated by the Guatemalan army bombing
the Mayan Quich[é] population. Rather, the
bombing attacks were taking place in or near
these communities because it was believed that
there were guerrillas in or near these
communities.
To the extent that a certain racism existed at
that time, it still was not a basis for
bombing in or near the Mayan Quich[é]
villages. Rather, the racism was the basis,
however founded or unfounded, of the
Guatemalan military believing that the Mayan
Quich[é] community was sympathetic to the
guerrilla cause and were harboring guerrillas.
I find based on the documentary evidence that
although [Ordonez-Quino] was injured and
suffered hearing loss because of the bombing
raids that the bombing raids were not directed
at the Mayan Quich[é] community per se, but,
rather, they were on account of the civil war
which was going on at the time and on the
basis of the Guatemalan army seeking to ferret
out and destroy the guerrilla enemies. The
purpose of the bombing was not to destroy the
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Mayan Quich[é] community.
The IJ further found "that the tragic damage to [Ordonez-Quino's]
ears as a result of the bombing during the civil war in 1980 [was]
as a result of the civil war and general conditions of strife and
violence which existed in Guatemala at the time."
The BIA agreed with the IJ's take, reiterating his
finding that "all Mayans were targeted because of their suspected
support of the guer[r]illas," and saying Ordonez-Quino "ha[d] not
shown that he was targeted based on ethnicity rather than being a
victim of violence incident to the civil war."
However, the Historical Clarification Report, as well as
other documentary evidence Ordonez-Quino submitted, tells a
different story. According to the Report, racism was an underlying
cause of the Guatemalan Civil War and "a basic explanatory factor
for the indiscriminate nature and particular brutality with which
military operations were carried out against hundreds of Mayan
communities." Historical Clarification Report, Conclusions, ¶¶ 12,
33. "[D]uring the bloodiest years of the confrontation," "Mayan
communities . . . became a military objective." Id. at Conclusions,
¶ 62. Eighty-three percent of the war's identified victims were
Mayan. Id. at Conclusions, ¶ 1.
Though the army did, as the IJ reported, associate Mayan
communities with guerrilla-supporters, "in the majority of cases,
the identification of Mayan communities with the insurgency was
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intentionally exaggerated by the State, which, based on traditional
racist prejudices, used this identification to eliminate any
present or future possibilities of the people providing help for,
or joining, an insurgent project." Id. at Conclusions, ¶ 31.
The consequence of this manipulation . . . was
massive and indiscriminate aggression directed
against communities independent of their
actual involvement in the guerrilla movement
and with a clear indifference to their status
as a non-combatant civilian population. The
massacres, scorched earth operations, forced
disappearances and executions of Mayan
authorities, leaders[,] and spiritual guides,
were not only an attempt to destroy the social
base of the guerrillas, but above all, to
destroy the cultural values that ensured
cohesion and collective action in Mayan
communities.
Id. at Conclusions, ¶ 32. Furthermore, the army's inflated
perception of Mayans as guerrilla allies "contributed to increasing
and aggravating the human rights violations perpetrated against
them, demonstrating an aggressive racist component of extreme
cruelty that led to the extermination en masse[] of defen[s]eless
Mayan communities purportedly linked to guerrillas — including
children, women[,] and the elderly." Id. at Conclusions, ¶ 85.
Considering these repeated "destructive acts, directed
systematically against groups of the Mayan population," including
"against minors who could not possibly have been military targets,"
the Historical Clarification Report found that "the only common
denominator" among victims was membership in a Mayan ethnic group,
and the Guatemalan military's acts were committed "with intent to
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destroy" these groups, "in whole or in part." Id. at Conclusions,
¶ 111. The Report ultimately concluded that the Guatemalan State
had "committed acts of genocide against groups of Mayan people" in
four regions, including Ordonez-Quino's hometown of Zacualpa,
between 1981 and 1983.8 Id. at Conclusions, ¶¶ 110, 122.
Thus, while the IJ correctly noted that Mayan communities
like Ordonez-Quino's were targeted during the civil war in part
because of their real or imagined connection to guerrilla forces,
the documentary evidence does not support his finding that the
purpose of such attacks "was not to destroy the Mayan . . .
community." In fact, that was precisely the military's aim, as
explicitly found by Guatemala's own Historical Clarification
Commission, and consistent with numerous documentary sources in the
8
The Report adopted the United Nations' definition of
genocide as:
[A]ny of the following acts committed with intent to
destroy, in whole or in part, a national, ethnic[],
racial[,] or religious group, . . . :
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of
the group;
c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical
destruction in whole or in part;
d) Imposing measures intended to prevent births within
the group;
e) Forcibly transferring children of the group to
another group.
Historical Clarification Report, Conclusions, ¶ 109 (citing U.N.
Convention on the Prevention and Punishment of the Crime of
Genocide, art. 2, approved Dec. 9, 1948, 78 U.N.T.S. 277 (entered
into force Jan. 12, 1951)).
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record. Furthermore, the evidence does not support the IJ's
conclusion that the attacks on Ordonez-Quino's village were merely
"a result of the civil war and general conditions of strife and
violence which existed in Guatemala at the time." Rather, the
evidence shows that Ordonez-Quino's community and others were
intentionally targeted by government forces during the war because
of their Mayan identity. Cf. Arevalo-Giron v. Holder, 667 F.3d 79,
82-83 (1st Cir. 2012) (finding agency's determination that
Guatemalan petitioner's father was "a random casualty of the civil
war" was supported by substantial evidence where petitioner did not
allege father was a member of the army, the guerrillas, or the
civil patrol — or a targeted racial or ethnic group).
We do not require an asylum applicant to demonstrate that
he was singled out only due to his protected trait; rather, he must
show that such characteristic was "one central reason" for his
abuse. Singh, 543 F.3d at 5; see Ivanov, 736 F.3d at 14-15
(applying pre-REAL ID Act standard). Rarely will an applicant know
the "exact motivation" of his persecutors — especially when he was
victimized as a young child — and, "'of course, persecutors may
often have more than one motivation.'" See Ivanov, 736 F.3d at 15
(alteration omitted) (quoting Sompotan v. Mukasey, 533 F.3d 63, 69
(1st Cir. 2008)). Ordonez-Quino has amply shown that his Mayan
Quiché identity was "at least one central reason" why he and his
community were targeted by the Guatemalan army, and he need show no
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more than that. Thus, we find that the IJ's conclusion, echoed by
the BIA, that Ordonez-Quino did not demonstrate an adequate nexus
between the harms he experienced during the civil war and a
protected ground is not supported by substantial evidence "'when
viewed in the light that the record in its entirety furnishes,
including the body of evidence opposed to the [IJ's] view.'"9
Ivanov, 736 F.3d at 11 (quoting Kartasheva, 582 F.3d at 105).
Consequently, it must be vacated.10
b. Degree of Harm
Because the IJ found that Ordonez-Quino had not met the
nexus requirement, he did not decide whether the harms Ordonez-
Quino experienced as a Mayan Quiché in Guatemala rose to the level
of past persecution. The BIA, on the other hand, proceeded to find
that, in addition to lacking the requisite nexus, Ordonez-Quino's
"account of being discriminated against due to his ethnicity [did]
not amount to past persecution." "Moreover," the BIA said, "the
isolated nature of both the civil war-related bombing and the
respondent's incident with a gang does not support a claim of
asylum." We hold that this finding also was not supported by
9
This is not the first time that an IJ has ignored the
Historical Clarification Report's findings at his or her peril.
See Jorge-Tzoc, 435 F.3d at 149-50 (finding, inter alia, that IJ
erred when she failed to take into account Report's findings).
10
We do not disturb the IJ's finding that Ordonez-Quino did
not establish a nexus between the 2005 gang attack and his Mayan
Quiché identity. However, on remand the agency may wish to
reconsider this determination after digging deeper in the record.
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substantial evidence in the record.
As a refresher, to constitute persecution, "the sum of [a
petitioner's] experiences must add up to more than ordinary
harassment, mistreatment, or suffering." Lopez de Hincapie, 494
F.3d at 217; see Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.
2005) ("[P]ast persecution requires that the totality of a
petitioner's experiences add up to more than mere discomfiture,
unpleasantness, harassment, or unfair treatment."). The abuse must
also "have reached a fairly high threshold of seriousness, as well
as some regularity and frequency." Ivanov, 736 F.3d at 11 (quoting
Rebenko v. Holder, 693 F.3d 87, 92 (1st Cir. 2012)) (internal
quotation mark omitted). But within these broad guideposts, we
usually assess whether a particular petitioner was persecuted on a
case-by-case basis. See Sok, 526 F.3d at 53 (quoting Aguilar-
Solis, 168 F.3d at 570).
As several of our sister circuits have recognized, "age
can be a critical factor" in determining whether a petitioner's
experiences cross this threshold. Liu v. Ashcroft, 380 F.3d 307,
314 (7th Cir. 2004); see, e.g., Hernandez-Ortiz v. Gonzales, 496
F.3d 1042, 1045 (9th Cir. 2007); Jorge-Tzoc v. Gonzales, 435 F.3d
146, 150 (2d Cir. 2006) (per curiam). Where the events that form
the basis of a past persecution claim were perceived when the
petitioner was a child, the fact-finder must "look at the events
from [the child's] perspective, [and] measure the degree of [his]
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injuries by their impact on [a child] of [his] age[]." Hernandez-
Ortiz, 496 F.3d at 1046. The "'harm a child fears or has suffered
. . . may be relatively less than that of an adult and still
qualify as persecution.'" Liu, 380 F.3d at 314 (quoting Jeff
Weiss, U.S. Dep't of Justice, Guidelines for Children's Asylum
Claims, 1998 WL 34032561, at *14 (Dec. 10, 1998)). Moreover, harm
to a child's family or community — upon whom the child depends —
may contribute to a finding of persecution against the child
himself. See Jorge-Tzoc, 435 F.3d at 150; see also Hernandez-
Ortiz, 496 F.3d at 1045-46.
Ordonez-Quino's past persecution claim is primarily based
on harms he experienced as a Mayan Quiché child growing up during
the Guatemalan Civil War. Those harms include numerous attacks by
Guatemalan soldiers on his village — one of which left him almost
completely deaf and stunted his development — as well as the
ongoing deprivation, relocations, and discrimination he and his
family faced over the years.11
The BIA appears to have committed two errors in assessing
Ordonez-Quino's past persecution claim. First, rather than
considering the harms Ordonez-Quino experienced cumulatively, the
BIA considered only two of the incidents Ordonez-Quino described:
11
Later, Ordonez-Quino says he was threatened and beaten by
gangs as an adult in Guatemala City, but we will not consider these
incidents because we have not disturbed the IJ's and BIA's findings
that these incidents were not linked to a protected ground.
-22-
the 1980 bombing that resulted in his hearing loss, and the 2005
gang attack that precipitated Ordonez-Quino's departure from
Guatemala. By describing the bombing as an "isolated" incident,
the BIA implicitly rejected (without explanation) Ordonez-Quino's
description of the plural "attacks" waged against his village
during the civil war and the trauma he and his family suffered as
a result, thereby again ignoring crucial evidence in the record.
Second and relatedly, there is no indication that the BIA
considered the harms Ordonez-Quino suffered throughout this period
from his perspective as a child, or that it took the harms his
family suffered into account. Ordonez-Quino was very young at the
time of the attacks on his village. He remembers "being extremely
frightened" and "witness[ing] many terrible things" as soldiers
shot at, bombed, and killed members of his community. At age five
or six, he was horrifically injured in a bombing attack that
resulted in a lengthy, severe illness and permanent, near-total
hearing loss. He says that "not being able to hear was . . .
terrifying." This injury altered the course of Ordonez-Quino's
life dramatically — he lost the ability to speak clearly, had
difficulty learning, and became more vulnerable to violence. His
family, upon whom he was totally dependent, suffered greatly during
the attacks as well and eventually was forced to relocate for
survival. This combination of circumstances — bombing attacks,
permanent injury, the loss of a home, the razing of lands, and
-23-
internal displacement lasting years — could certainly support a
finding of past persecution for an adult. Such a string of events
even more strongly supports a finding of past persecution for a
small child, whose formative years were spent in terror and pain.
Because the BIA failed to address the harms Ordonez-Quino
and his family experienced cumulatively and from the perspective of
a child, its determination is not supported by substantial evidence
in the record. Thus, we must vacate the BIA's determination that
the harms Ordonez-Quino and his family suffered did not rise to the
level of past persecution. See Jorge-Tzoc, 435 F.3d at 150.
On remand, bearing these principles in mind, the agency
must determine whether the harms Ordonez-Quino suffered in
Guatemala on account of his Mayan identity meet the standard of
past persecution, viewed in the aggregate and from the perspective
of a child of Ordonez-Quino's age when these events occurred. We
further note that though the agency's review may properly account
for both the cumulative nature of these events and Ordonez-Quino's
youth, correction of either error could prove a sufficient basis
for a finding of past persecution on remand.
2. Well-Founded Fear of Future Persecution
After finding that Ordonez-Quino had not demonstrated
past persecution on account of a protected ground, the IJ went on
to find that Ordonez-Quino also failed to establish a well-founded
fear of future persecution on account of a protected ground. For
-24-
this conclusion, he relied on the ongoing presence of Ordonez-
Quino's family members — who share his protected traits — in their
village. He further said that any gang violence Ordonez-Quino
feared in the future would not be because of his protected
characteristics, "but rather only in furtherance of [the gang's]
reprehensible criminality."
On remand, if the agency determines that the harm
Ordonez-Quino suffered as a Mayan Quiché child in Guatemala rose to
the level of past persecution, a different analysis will be
required. As we set out above, past persecution creates a
presumption of future persecution, which the government can rebut
by demonstrating that there has been a fundamental change of circumstances in
Guatemala such that the applicant's fear can no longer be considered well-
founded.12 8 C.F.R. § 1208.13(b)(1)(i)(A). To overcome the presumption, the
government must show that "'changes in country conditions . . . have negated
the particular applicant's well-founded fear of persecution,'"
taking his individual situation into account. Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 24 (1st Cir. 2004) (quoting Fergiste v.
I.N.S., 138 F.3d 14, 18-19 (1st Cir. 1998)).
Unlike the IJ, after finding that Ordonez-Quino had not
demonstrated past persecution on account of a protected ground, the
12
The government can also rebut the presumption by showing
Ordonez-Quino could avoid persecution by moving to another part of
Guatemala and it would be reasonable to expect him to do so. 8
C.F.R. § 1208.13(b)(1)(i)(B).
-25-
BIA proceeded to hold that even if Ordonez-Quino had shown past
persecution, changed country conditions would have rebutted his
claim to a well-founded fear of future persecution. For support,
the BIA cited this court's decision in Palma-Mazariegos v.
Gonzales, 428 F.3d 30, 32 (1st Cir. 2005). That case treated the
distinct issue of whether a Guatemalan petitioner had a reasonable
fear of future harm based on his refusal to join the guerrilla
forces. Id. at 33. The court there noted that evidence showed the
guerrillas had been integrated into the government after the civil
war and no longer engaged in militant activities. Id. at 35-36.
As a result, the court found that the record supported the BIA's
finding of changed conditions sufficient to rebut that petitioner's
asserted fear of future harm. Id. at 37.
Ordonez-Quino, on the other hand, says he has a well-
founded fear of future persecution based on his Mayan Quiché race
and ethnicity. He provides significant documentation of ongoing
systemic racism and human rights violations against the Mayan
Quiché community. See, e.g., U.S. Dep't of State, 2009 Human
Rights Reports: Guatemala §§ 5-6 (2010) (noting, inter alia,
threats to and murders of indigenous leaders; pervasive
discrimination against indigenous community; and land dispute where
police evicted roughly 80 indigenous community members from their
homes, burned their homes, and destroyed their crops); Guatemalan
Human Rights Comm'n, Guatemala Human Rights Review, January-
-26-
September 2007 7 (2007) (describing violent evictions of indigenous
families from native lands at hands of police officers and military
personnel).
The BIA's quick dismissal of Ordonez-Quino's fear-of-
future-persecution claim with a conclusory statement and an
inapposite case citation, without any reference to the voluminous
record, is not a finding supported by substantial evidence. See
Gailius v. I.N.S., 147 F.3d 34, 46 (1st Cir. 1998) ("In order for
this court to conduct a proper substantial evidence review of the
BIA's decision, the [BIA's] opinion must state with sufficient
particularity and clarity the reasons for denial of asylum."
(internal quotation marks omitted)). The BIA appears not to have
made any attempt to assay the evidence of current conditions in
Guatemala for Ordonez-Quino specifically, and thereby failed to
undertake the type of particularized analysis that our standards
demand. See Hernandez-Barrera, 373 F.3d at 25.
Accordingly, if the agency now finds that Ordonez-Quino
has in fact demonstrated past persecution, it will need to
determine whether the government has rebutted Ordonez-Quino's
corollary presumption of a well-founded fear considering the
evidence put forth in this record and his individual situation.
3. Humanitarian Asylum
Furthermore, if the agency finds both that Ordonez-Quino
has established past persecution and that the government has
-27-
rebutted his fear of future persecution, Ordonez-Quino may
nevertheless be able to obtain discretionary asylum relief based on
past persecution alone under the "humanitarian exception." See
Guerrero v. Holder, 667 F.3d 74, 79 n.5 (1st Cir. 2012) (citing 8
C.F.R. § 1208.13(b)(1)(iii)). This exception permits a
decisionmaker to grant an asylum applicant's request for relief "in
the absence of [a] well-founded fear of future persecution" if:
(A) The applicant has demonstrated
compelling reasons for being unwilling
or unable to return to the country
arising out of the severity of the past
persecution; or
(B) The applicant has established that
there is a reasonable possibility that
he or she may suffer other serious harm
upon removal to that country.
8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B); see also Matter of Chen, 20
I. & N. Dec. 16, 19 (BIA 1989).
To qualify for humanitarian asylum based on the severity
of past persecution, an applicant must prove that he or she
experienced "extraordinary suffering" in the past. Zarouite v.
Gonzales, 424 F.3d 60, 64 (1st Cir. 2005). In other words, "an
[applicant] must show past persecution so severe that repatriation
would be inhumane." Tokarska v. I.N.S., 978 F.2d 1, 2 (1st Cir.
1992) (per curiam) (quoting Baka v. I.N.S., 963 F.2d 1376, 1379
(10th Cir. 1992)) (internal quotation marks omitted); see also
Precetaj v. Holder, 649 F.3d 72, 77 (1st Cir. 2011) ("[T]he
paradigm case is one in which so much abuse has been directed
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against the victim that the suffering is projected into the future
and that a return of the applicant to the place where the harm was
inflicted would magnify the prior suffering.").
A showing of severe harm and the long-lasting effects of
such harm, such as an ongoing or permanent disability, may support
a discretionary grant of humanitarian asylum. See Jalloh v.
Gonzales, 498 F.3d 148, 151 (2d Cir. 2007) (explaining that the
agency requires a showing of both "'severe harm and the long-
lasting effects of that harm'" to obtain humanitarian asylum
(quoting In re N-M-A-, 22 I. & N. Dec. 312, 326 (BIA 1998)));
Mohammed v. Gonzales, 400 F.3d 785, 801 (9th Cir. 2005)
(recognizing female genital mutilation as "a particularly severe
form of past persecution because of its many continuing effects");
Matter of Chen, 20 I. & N. Dec. at 18; cf. Gebru v. I.N.S., 173
F.3d 424 (4th Cir. 1999) (per curiam) (unpublished) (affirming
denial of humanitarian asylum where petitioner "presented no
evidence demonstrating that she suffers from physical and
psychological disabilities like those shown in Matter of Chen").
For example, in Matter of Chen, the first BIA decision invoking
humanitarian asylum, the BIA relied in part on the applicant's
continuing physical disability — he had to wear a hearing aid due
to injuries sustained when rocks were thrown at his head at a young
age, was "always anxious and fearful, and [was] often suicidal" —
in deciding to exercise discretion in the applicant's favor. 20 I.
-29-
& N. Dec. at 20-21.
Ordonez-Quino first specifically requested humanitarian
asylum before the BIA, claiming eligibility based both on the
severity of harm underlying his past persecution and the serious
harm he would suffer if removed to Guatemala. In response, the BIA
said Ordonez-Quino had waived his claim to humanitarian asylum
because he had not explicitly raised it before the IJ.
Alternatively, the BIA said that even if Ordonez-Quino had not
waived his claim, he was not eligible for humanitarian asylum
because he had not established past persecution on account of a
protected ground. Even further, the BIA said, if Ordonez-Quino had
made the requisite showing of past persecution and nexus, he still
would not qualify for humanitarian asylum based on the
considerations discussed in Matter of Chen.
Before us, Ordonez-Quino challenges each of these
conclusions. The government, on the other hand, says we lack
jurisdiction to review the BIA's denial of humanitarian asylum. In
the alternative, it contends the BIA did not abuse its discretion
in refusing to grant humanitarian asylum to Ordonez-Quino. It
further advises that we need not address the BIA's waiver
determination because we can uphold the BIA's decision on either of
these two bases.
Because we are remanding Ordonez-Quino's case to
determine whether he established past persecution on account of a
-30-
protected ground, we need not comment on the BIA's ultimate
conclusions regarding his eligibility for humanitarian asylum.
However, for the sake of clarity on remand, we make a few points.
First, we easily reject the government's jurisdictional
argument. This court has, on numerous occasions, exercised its
power to review agency decisions regarding applicants' requests for
humanitarian asylum based on past persecution alone. See, e.g.,
Precetaj, 649 F.3d at 77-78; Waweru v. Gonzales, 437 F.3d 199, 205
(1st Cir. 2006); Zarouite, 424 F.3d at 64; Tokarska, 978 F.2d at 1-
2. The government's citation to Ang v. Gonzales, 430 F.3d 50, 57-
58 (1st Cir. 2005) — which dealt with an unrelated statute granting
the Attorney General discretion to "parole into the United States
temporarily under such conditions as he may prescribe only on a
case-by-case basis for urgent humanitarian reasons or significant
public benefit any alien applying for admission into the United
States," 8 U.S.C. § 1182(d)(5)(A) — does not convince us that we
lack power to review the agency's humanitarian asylum
determinations.
Second, contrary to the BIA's assertion, Ordonez-Quino
did not waive his claim to humanitarian asylum by not explicitly
requesting it from the IJ apart from his overall past-persecution-
based asylum claim. As the government explains, what we refer to
as "humanitarian asylum" is not a separate form of relief created
by the Immigration and Nationality Act. Rather, it is a
-31-
discretionary form of relief that may be granted to certain asylum
seekers.13 See 8 C.F.R. § 1208.13(b)(1)(iii)(A)-(B). Neither the
BIA nor the government has cited any case — and we have found none
— requiring an asylum seeker to request humanitarian asylum
independent of other past-persecution-based asylum relief before
the IJ in order to preserve his claim to humanitarian asylum before
the BIA.14 The lone case the BIA cites in support of waiver —
Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) — does
not deal with humanitarian asylum. Rather, in that case, the BIA
rejected an applicant's attempt to argue an entirely new basis for
asylum for the first time on appeal, saying he was "eligible for
asylum as a result of his mother's death . . . from an alleged
forced sterilization procedure," when he had previously sought
asylum based only on his religion. Id. Here, on the other hand,
Ordonez-Quino has consistently asserted eligibility for asylum
based on the past harm he experienced in Guatemala on account of
his race and ethnicity.
13
By way of illustration, we note, as did Ordonez-Quino, that
there is no separate space in the asylum application, Form I-589,
for an applicant to make a claim for "humanitarian asylum," as
opposed to "regular" asylum.
14
We have, however, found cases requiring an asylum applicant
to request humanitarian asylum at the agency level — i.e., before
the BIA or IJ — prior to asking this court to review the agency's
denial of such relief. See, e.g., Zarouite, 424 F.3d at 64;
Velásquez v. Ashcroft, 342 F.3d 55, 59 (1st Cir. 2003), abrogated
on other grounds by Bocova v. Gonzales, 412 F.3d 257, 266 (1st Cir.
2005). But that's a different matter.
-32-
Finally, while we make no comment on the merits of
Ordonez-Quino's humanitarian asylum claim, we note that the BIA's
conclusory statement that his case "would not warrant humanitarian
asylum based on the special considerations discussed in Matter of
Chen," even if he had shown his injuries amounted to past
persecution on account of a protected ground — without any
discussion of the severity of the harms Ordonez-Quino suffered —
would not withstand substantial evidence review. See Gailius, 147
F.3d at 46 (explaining that the BIA must state with sufficient
particularity and clarity its reasons for denial of asylum for this
court to conduct a proper substantial evidence review).
Accordingly, if the agency finds upon remand that Ordonez-Quino has
established past persecution but that the presumption of a well-
founded fear of future persecution is rebutted, it must also
determine whether the persecution Ordonez-Quino experienced — as
well as the ongoing harm he suffers today due to his hearing
disability and developmental difficulties, and any harm he might
suffer upon returning to Guatemala — warrant a grant of
humanitarian asylum.
IV. Conclusion
For the foregoing reasons, the order of the BIA affirming
the IJ's decision is vacated and the matter is remanded for
proceedings consistent with this decision.
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