An interesting decision from the US Court of Appeals for the Ninth Circuit recently. Goes to show that when you are an immigration attorney, dealing every day with so many different nations, and so many different cultures, ethnicities and religious sub groups within those nations, and especially when dealing with asylum claims, you have to also be a historian, anthropologist, therapist etc.
In the case of Mendoza-Pablo v Holder, decided on February 7, 2012, the US Court of Appeals for the Ninth Circuit granted a petition by a member of the Mam Mayan group, an indigenous ethnic group whose members live predominantly in Guatemala and who were largely persecuted during Guatemala's horrendous civil war. I actually have handled asylum applications from Guatemala but have never heard about Mam Mayans until today.
The facts of the case are very compelling but hardly, in my humble opinion, would qualify him under the strict legal standards for asylum. After all, Mendoza Pablo applied for asylum two decades after the events that could otherwise qualify him for asylum occurred and in the meantime he had lived in Mexico for the majority of his life, bringing into issue the question of firm resettlement.
In short, at some point in 1982, when Mendoza-Pablo’s mother was eight months pregnant with him, Guatemalan government soldiers burned their village to the ground, massacring many of the village’s inhabitants in the process. Though Mendoza-Pablo’s immediate family, along with some other villagers, escaped the attack by hiding in the mountains, his paternal grandparents and two aunts were killed when government soldiers locked them in their homes and burned them alive. Outside observers have estimated that “[i]n Todos Santos (the town) sixty to eighty people were killed in 1981-1982” and “[t]he army also burned an estimated 150 or more houses.
Very shortly thereafter, Mendoza-Pablo was born, several weeks premature. Food was scarce in the mountains and Mendoza-Pablo’s mother, unable to breast feed, sought to nourish him with tea made from wild herbs. He became severely maknurished as a result. When he was roughly three months old, Mendoza-Pablo’s family decided that, in light of the foregoing events, remaining in Guatemala posed a danger to their lives. Accordingly, the family traveled to Mexico, where, however, they did not have lawful status, as a result of which Mendoza-Pablo was unable to attend school and had difficulty obtaining employment. In addition,Mendoza-Pablo was often sick and frequently had nightmares.
When Mendoza Pablo was 20 years old, he made his way to the United States and applied for asylum.
Four problems here as I mentioned. Firm resettlement in Mexico, the fact that the events occurred more than twenty years before, third, and that country conditions have vastly changed in Guatemala i.e. no more civil war. fourth Pablo Mendoza did not submit any psychological evaluation or expert witness to prove his point that the initial events in Guatemala had such long term effects on his psyche as to constitute almosta type of second hand persecution throughout the remainder of his life, then exacerbated by further deprivations in Mexico due to his family's flight there.
So how did the Court manage to find for him? As the Court succintly put it: "This case requires us to determine whether Mendoza-Pablo’s early deprivations growing directly out of the unquestionable persecution of his mother and, more generally, his and his parents’s fear of further persecution growing directly out of the Guatemalan government’s across-the-board persecution of Mayans, constitutes persecution under the INA."
Incredibly, the Court just bypassed the matter of the the lack of psych report or expert witness, stating that "While the precise long-term effect of these circumstances on Mendoza-Pablo’s physical and mental development may
well be impossible to determine, it would fly in the face of common
experience not to recognize the likelihood that these deprivations would have some deleterious and long-lasting effects." Based on this "common experience" approach, the Court went on to conclude that where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."
I think this case is important for several reasons. First for reaffirming that children and infants can be victims of persecution even though they may not have recollection of the events. Secondly, there are a lot of cases where the parents flee to the US with children in tow and they include them in their asylum application. For a lot of Guatemalans and Salvadorans in particular who fled their country because of the blood baths of their civil wars during the 80s, their applications remained pending in a sort of nightmare administrative limbo for several years, if not decades, because of a combination of an overworked INS that let cases linger in dark cobwebby worners of their offices, some class lawsuits and subsequnt settlements against the INS for not properly adjudicating the existing applications for relief for nationals of those countries, and other factors. The result being that I have had several recent cases where those children have now grown up to be over 21, and for one reason or another, are no longer protected under the Child Status Protection Act and they are now left with the option of filing an asylum application on their own without having any recollection of what made their parents flee in the first place. This case and other recent ones by the Ninth Circuit and other Circuits may pave the way for these children to succeed on their claim of asylum based on the persecution suffered by their parents decades before, if they can show lingering effects from that persecution that has affected their lives in such a way as to qualify as persecution.
Very interesting case that kind of went through unnoticed by the legal community but that I think we can all use to advocate on behalf of our clients whom previously we thought had no chance of succeeding on their own asylum applications. The link to the entire decision can be found here.
