Immigration – Persecution – Humanitarian exception

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Where the petitioner, a Guatemalan of Mayan Quiché race and ethnicity, challenges the denial of his request for asylum, the order must be vacated and the case remanded, as (1) the petitioner has established the requisite nexus between the harms he suffered and his race and ethnicity, (2) the Board of Immigration Appeals did not properly assess his past persecution and fear of future persecution claims and (3) he may be able to obtain discretionary asylum relief based on past persecution alone under the “humanitarian exception.”

Nexus

“[Petitioner Manuel] 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. …

“ …[W]hile 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 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. …

“ … 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 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.”‘ … Consequently, it must be vacated.”

Persecution

“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.’ … We hold that this finding also was not supported by substantial evidence in the record. …

“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: 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. …

“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. …

“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. … 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. …”

Humanitarian exception

“Furthermore, if the agency finds both that Ordonez-Quino has established past persecution and that the government has 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.’ …

“Because we are remanding Ordonez-Quino’s case to determine whether he established past persecution on account of a 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. …

“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. …

“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, [20 I. & N. Dec. 16 (BIA 1989)],’ 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. … 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.”

Ordonez-Quino v. Holder (Lawyers Weekly No. 01-196-14) (33 pages) (Thompson, J.) (1st Circuit) Nancy J. Kelly, John Willshire Carrera and Harvard Immigration & Refugee Clinic on brief for the petitioner; Dara S. Smith, Stuart F. Delery and David V. Bernal on brief for the respondent (Docket No. 13-1215) (July 23, 2014).

Click here for the full-text opinion.