Mejilla-Romero v. Holder

United States Court of Appeals
For the First Circuit

No. 08-2336

SELVIN ASAEL MEJILLA-ROMERO,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.

Nancy J. Kelly, John Willshire-Carrera, and the Harvard
Immigration Clinic at Greater Boston Legal Services were on brief
for petitioner.
Tony West, Assistant Attorney General, Civil Division, James
E. Grimes, Senior Litigation Counsel, Office of Immigration
Litigation, and William C. Minick, Attorney, Office of Immigration
Litigation, were on brief for respondent.

April 6, 2010
 LYNCH, Chief Judge. Selvin Asael Mejilla-Romero, then

age eleven, entered the United States illegally and without

inspection near Brownsville, Texas, on July 24, 2002. He is now

eighteen years old. He petitions for review of a final order of

the Board of Immigration Appeals (BIA) denying his application for

asylum, withholding of removal, and protection under the Convention

Against Torture (CAT).

The BIA and the Immigration Judge (IJ) rejected the

claims on a number of independently sufficient grounds. They

rejected his past persecution claims, which asserted that when he

lived with his grandmother as a child in Honduras the mistreatment

he suffered at the hands of two antagonists--a neighbor and a

street gang--amounted to "persecution." They found in addition

that he had failed to show the mistreatment was "on account of" any

of the five protected grounds and failed to show the requisite

connection to government action or inaction existed. Thus, he had

not met the past-persecution prong.

The BIA and IJ also rejected Mejilla-Romero's assertions

that he will suffer future persecution if returned to Honduras on

account of his resistance to gang membership, an ongoing feud with

his grandmother's neighbor's family, and the possibility that he

may be homeless, although he has some family there. They also both

found that he had failed to establish eligibility for withholding

of removal or relief under the CAT. Both the BIA and IJ considered

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all the evidence of record, as have we, and we cannot say the

record compels us to reach different conclusions as to the legal

requirements for asylum, withholding of removal, and CAT relief.

We deny Mejilla-Romero's petition.

I.

As a child, Mejilla-Romero lived with his grandmother in

the small Honduran town of Arimis. While Mejilla-Romero was

growing up, he had a series of bad encounters with a neighbor named

"Hubert." Hubert called Mejilla-Romero's family "[c]ommunists" and

said, as an attack on the family, that they were "[p]eople that are

dying, that are starving." Hubert also threw stones at Mejilla-

Romero and once threw a machete that hit petitioner's leg, leaving

a visible scar. On another occasion, Hubert attacked Mejilla-

Romero's grandmother's home with a machete, and he once destroyed

the garden. Mejilla-Romero claims the shock from the attack on the

garden sent his ailing aunt to the hospital, where she ultimately

died.

Mejilla-Romero also had great difficulties with a gang of

young males, aged fifteen and older, who came to Arimis from

another town. On several occasions, the gang waited for Mejilla-

Romero outside of school and attempted to steal his money. The

gang members pushed him and once threw him from a small house,

leaving him entangled in wire. He was disentangled by a man he

called his "uncle," who may not have been a blood relative. In a

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July 2005 affidavit, Mejilla-Romero stated that these "older boys"

also threw snakes at him several times and that he "feared that

they wanted to sexually target" him; he offered no further details

and did not describe these incidents in his testimony before the

IJ. Mejilla-Romero believes that all of these incidents were

motivated by the gang members' wanting to recruit him into their

gang. Mejilla-Romero concedes that neither he nor his family ever

contacted the police or other authorities about any of these

incidents.

Additionally, one of Mejilla-Romero's uncles was killed

in 1996, when Mejilla-Romero was five years old. A Honduran court

issued an arrest warrant shortly after his death, stating that his

killer had been indicted "for the crime of assassination" and

calling for his arrest "as expeditiously as possible." A copy of

this warrant was in evidence before the IJ. Although Mejilla-

Romero does not recall the circumstances of his murder, no evidence

compelled the conclusion that there was any connection between

petitioner's mistreatment and his uncle's death.

Mejilla-Romero is now eighteen years old, having spent

the seven years since his illegal entry in the Boston area with his

mother. While in this country, Mejilla-Romero and his family have

also been victims of traumatizing violence, discussed both in his

own testimony and in statements he made to a psychologist whom he

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saw in support of his asylum application. That report was in

evidence and was referred to by the IJ in his decision.

While in the United States, Mejilla-Romero also met again

with his father, who later returned to Honduras. Though his

father, grandmother, and members of his grandmother's family

currently reside in Honduras, he fears that he will be homeless if

he returns.

Federal authorities served Mejilla-Romero with Notice to

Appear the day after he entered this country. There were

proceedings and hearings spread out over a number of years as

Mejilla-Romero made efforts to achieve legal status. In October

2004, after it had been determined that he was ineligible for

Temporary Protected Status, Mejilla-Romero filed an application for

asylum, withholding of removal, and CAT relief.

In hearings before an IJ between July 2005 and November

2006, Mejilla-Romero testified in support of his application for

relief. He was then between thirteen and fourteen years old. The

IJ also reviewed documentary evidence and heard testimony from

Mejilla-Romero's mother and maternal aunt. The mother was not in

Honduras at the time of the incidents with petitioner and had no

firsthand knowledge of the encounters. The aunt had left Honduras

in 1998. She did not appear for scheduled cross-examination on

what was to have been her second day of testimony; the IJ took her

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absence into account. The IJ considered the testimony of both the

mother and the aunt, as his opinion shows.

At the close of proceedings in November 2006, the IJ

observed that "given the amount of material and evidence" it

"ma[de] sense to do a written decision." In a twenty-page written

decision on March 5, 2007, the IJ allowed Mejilla-Romero to file

his asylum application late1 and rejected the application for

relief.

The IJ deemed Mejilla-Romero's own testimony credible and

found that he had a subjective fear of returning to Honduras. The

IJ found, however, that Mejilla-Romero had not established either

past persecution or that his mistreatment was based on one of the

statutory grounds. As a result, no presumption of future

persecution arose. The IJ further found that Mejilla-Romero had

not carried his burden of showing an objectively reasonable fear of

future persecution on any of the statutory grounds.

The IJ comprehensively reviewed the testimony of Mejilla-

Romero's mother, devoting more than four pages of the decision to

thoroughly reciting her account. Mejilla-Romero's mother had left

1
The IJ found that "extraordinary circumstances" justified
Mejilla-Romero's failure to timely file his asylum application
within one year of entry to the United States. See 8 C.F.R.
§ 1208.4(a)(5). In particular, the IJ ruled that, in light of
Mejilla-Romero's young age upon arriving in the United States,
compliance with subsequent filing deadlines, and submission of
"voluminous documentation" in support of his asylum application,
his application would not be time-barred.

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Honduras for the United States in 1994, fearing that her violent,

sexually abusive boyfriend would kill her if she remained in that

country. No evidence connected that boyfriend--who was not

Mejilla-Romero's father--with the encounters Mejilla-Romero had.

The mother applied for asylum, but her application was denied. As

of March 2007, she had Temporary Protected Status.

Among the testimony addressed by the IJ was the mother's

description of her family's history of "being 'persecuted' on the

basis of their involvement in ongoing property disputes." The IJ's

decision noted several incidents of serious violence against the

family described by the mother, including the killing of her step-

father by a hired "soldier" and the murder of her brother by a

relative of Hubert's, which occurred after she had left Honduras.

It also cited her testimony that she would not consider living

elsewhere in Honduras in part "because she is uncertain as to where

she would reside."

The IJ's decision detailed specific inconsistencies in

the mother's testimony. For instance, the IJ noted that the mother

had initially said that Mejilla-Romero's grandmother had told her

in a telephone conversation that Mejilla-Romero was at risk from

Hubert and the gangs, but later testified that she only learned the

reasons why Mejilla-Romero left Honduras when Mejilla-Romero

described them to her upon his arrival in this country. The IJ

further observed that the mother "initially testified that she

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belonged to [an organization called] 'Lincol,' but later testified

that 'Lincol' was an organization of wealthy individuals who did

not want 'poor people' such as [Mejilla-Romero's grandmother] to

reside on their land."

The IJ also summarized the aunt's testimony, which

described her family being "targeted" over a land dispute and

referenced the murder of her brother by a neighbor, as a

consequence of such disputes. The IJ noted inconsistencies in the

aunt's testimony, observing that she had stated that her family was

a member of "Lincol" but also that the group had targeted her

family and that the man who murdered her brother had been a member

of the organization. The aunt never applied for asylum but

received Temporary Protected Status in 1999.

The IJ found that Mejilla-Romero's mother's testimony was

"often unclear" and marred by "numerous inconsistencies as compared

to her [own] Application for Asylum," but that it still "generally

corroborated" Mejilla-Romero's narrative. The IJ did not otherwise

make explicit credibility findings regarding the mother's or aunt's

testimony.

The IJ explicitly took into account Mejilla-Romero's "age

at the time these events occurred," and noted that "[b]ehaviors

that an adult may not typically associate with persecution or

serious harm may produce lasting damage or physical and

psychological trauma in a child and thus constitute persecution."

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The IJ did not reject any of Mejilla-Romero's testimony on the

basis of it having been overly basic or simplistic.

Even allowing for Mejilla-Romero's credibility and the

special consideration as to children, the IJ found that Mejilla-

Romero's bad experiences in Honduras, while "without a doubt,

troubling," did not rise to the level of "persecution." The IJ

cited our holdings that "to qualify as persecution, a person's

experience must rise above unpleasantness, harassment, and even

basic suffering, Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2004),

and consist of systemic mistreatment rather than a series of

isolated events. Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir.

2005)." Against this backdrop, the IJ held that the encounters

described "amount[ed] to no more than a series of isolated

altercations with a disgruntled neighbor and . . . a group of boys

who bullied younger children." The IJ explicitly considered the

psychologist's report2 but concluded that the trauma Mejilla-Romero

2
The report was based on an assessment conducted in June
2005, shortly before Mejilla-Romero's testimony before the IJ, in
support of his application for asylum. A staff psychologist in the
Cambridge Health Alliance's Latino Mental Health Program evaluated
Mejilla-Romero as presenting "significant symptoms of anxiety,"
noting that he had nightmares about running from those who want to
harm him and that he struggled with intrusive memories of past
traumatic events. He was preoccupied about his grandmother, whom
he had not, at that point, heard from since 2002. The report said
"[t]here is no evidence of psychotic symptoms," "[h]e is alert and
oriented," and that he had "good impulse control," as well as "very
good insight into his problems." In addition to the experiences
with Hubert and the gang, the report also noted an incident in
Honduras in which Mejilla-Romero said he had a live snake thrown at
him and other occasions on which he claimed to have fended off
possible sexual assaults. The report did not specify who had

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had experienced was not shown to be connected to Hubert or the

gang, particularly given the trauma Mejilla-Romero suffered as a

young child traveling unaccompanied to the United States. He found

insufficient evidence of causation from the experiences in Honduras

as to rise to the level of past persecution.

The IJ further found, as an independent ground, that

there was no evidence that Mejilla-Romero "was ever physically

punished for possessing a belief or characteristic that others

sought to overcome." (emphasis added).

The IJ also determined that Mejilla-Romero had failed to

establish an objectively reasonable fear that he would suffer

future persecution in Honduras. Mejilla-Romero testified he feared

he would be living on the streets and would be killed by the "boys"

and "the neighbors." However, as the IJ observed, he also

testified that his grandmother was living with "various relatives"

thrown the snake or attempted to sexually assault him.
The report also discussed incidents involving Mejilla-Romero's
family two weeks earlier in their housing project in Boston,
observing that Mejilla-Romero, his mother, and other siblings had
been threatened, and that the family was "terrified" of violence in
this country. The recent rounds of violence included his mother's
partner being attacked with a bat and having his arm broken, the
family car being vandalized, and men banging on their apartment
door with a bat. The family was moved to a different location.
The psychologist concluded that Mejilla-Romero presented "a
constellation of symptoms indicative of . . . Post Traumatic Stress
Disorder (PTSD)." The report did not attempt to attribute the PTSD
to specific events. It concluded that Mejilla-Romero was affected
by ongoing post-traumatic symptoms resulting from the "traumatic
experiences he was exposed to in his first eleven years of life in
Honduras" and that the "extremely violent events" of the past two
weeks had led to "an exacerbation of his symptoms."

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in Honduras and that his father had returned to that country as

well. The IJ noted that Mejilla-Romero had offered no testimony

"as to whether his father and grandmother . . . have encountered

any difficulties with 'Hubert' or with . . . gangs who may still

wish to recruit" Mejilla-Romero. Accordingly, the IJ found that

Mejilla-Romero's own "testimony–-combined with his failure to be

forthcoming about the whereabouts of his father–-greatly undercut[]

whether [he] objectively fear[ed] 'living on the streets' or future

persecution at the hands of 'Hubert' and the . . . gangs."

The IJ independently found it likely Mejilla-Romero

"could either reside with his father or grandmother or relocate" to

another area and successfully avoid Hubert and the gangs. The IJ

cited to several reports in the record that reflected Honduras's

"pervasive gang problem" and other social issues. However, the IJ

also noted specific State Department and Amnesty International

reports, submitted by petitioner, which reflected the Honduran

government's commitment to "children's rights and welfare" and

emphasized the Honduran government's progress in investigating

crimes victimizing children. Since Hubert's family lived in

Arimis, and a State Department report indicated that Honduran gang

membership "is primarily confined to [two] large urban centers,"

the IJ found that Mejilla-Romero could mitigate the risks he faced

by "safely relocat[ing]" elsewhere in Honduras. The IJ rejected

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the future persecution claim and the claim that it was likely

petitioner would be subject to torture.

In addition, the IJ determined that Mejilla-Romero's

failure to carry the "lesser burden" of proving his asylum claim

meant he had failed to meet the more exacting requirements for

withholding of removal. The IJ also concluded that although there

could be a risk that Mejilla-Romero would encounter violence in

Honduras, this threat was not sufficiently extreme to qualify him

for CAT relief.

The BIA rejected Mejilla-Romero's appeal in a two-page

opinion issued on September 25, 2008. The BIA agreed with the IJ's

determination that Mejilla-Romero had "failed to meet his burden of

establishing past persecution, or that he would be persecuted if

returned to Honduras on account of one of the statutorily protected

grounds, or tortured in the future." It also cited two additional

BIA decisions that "squarely address[ed]––and preclude[d]" the

claim that Mejilla-Romero had been persecuted on the basis of his

membership in a social group that consisted of young men who had

resisted gang recruitment.

The BIA affirmed the IJ's conclusion that the actions of

Mejilla-Romero's "disgruntled neighbor and a gang of youths did not

rise to the level of persecution." As a separate basis for its

decision, it emphasized that Mejilla-Romero also had not shown his

alleged persecution involved "some connection to government action

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or inaction, related to a protected ground for asylum," as required

by our caselaw. The BIA also agreed with the IJ's holding that

Mejilla-Romero's failure to satisfy the requirements for asylum

necessarily meant he had failed to meet the more stringent standard

for withholding of removal, and it affirmed that his failure to

present "evidence establishing that it is more likely than not that

he would be subject to torture upon return to Honduras" rendered

him ineligible for CAT relief.

This petition for review followed.

II.

We review both the single-member BIA decision and the

IJ's decision. See 8 C.F.R. § 1003.1(e)(5); Hernandez-Barrera v.

Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We do not engage in de

novo review of the record but instead evaluate Mejilla-Romero's

challenges to the IJ's and BIA's findings of fact under the "highly

deferential" substantial evidence standard. Nikijuluw v. Gonzales,

427 F.3d 115, 120 (1st Cir. 2005). We must accept the IJ and BIA

findings "so long as they are 'supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.'" Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). Under this standard, we will deny the petition for review

unless "any reasonable adjudicator would be compelled to conclude

to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Scatambuli v.

Holder, 558 F.3d 53, 58 (1st Cir. 2009). We review rulings of law

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de novo but "give substantial deference to the BIA's

interpretations of the underlying statutes and regulations

according to administrative law principles." Scatambuli, 558 F.3d

at 58.

To qualify for asylum, an applicant must establish that

he "suffered past persecution or has a well-founded fear of future

persecution" on the basis of "'race, religion, nationality,

membership in a particular social group, or political opinion.'"

Id. (quoting 8 U.S.C. § 1101(a)(42)(A)); see also Dias Gomes v.

Holder, 566 F.3d 232, 233 (1st Cir. 2009).

A finding of past persecution gives rise to the

presumption of a well-founded fear of future persecution. Orelien

v. Gonzales, 467 F.3d 67, 71 (1st Cir. 2006). When that

presumption arises, the burden shifts to the government to show

that changed circumstances have eliminated the petitioner's fear of

persecution or that he may practicably avoid future persecution by

relocating to another part of his country. Id.; see also 8 C.F.R.

§ 1208.13(b)(1)(i).

Absent any showing of past persecution, an applicant may

"prevail on an asylum claim by proving . . . a well-founded fear of

future persecution independent of any presumption." Orelien, 467

F.3d at 71. To do so, he must demonstrate that his fear is both

subjectively genuine and objectively reasonable. Id.

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 The term "persecution" has not been statutorily defined.

Our precedents hold that a finding of past persecution "requires

that the totality of a petitioner's experiences add up to more than

mere discomfiture, unpleasantness, harassment, or unfair

treatment," Nikijuluw, 427 F.3d at 120, a "threshold [that] is not

easily crossed," Orelien, 467 F.3d at 71. In addition, there is

a separate requirement that an applicant qualifies for asylum "only

when he suffers persecution that is the direct result of government

action, government-supported action, or government's unwillingness

or inability to control private conduct." Nikijuluw, 427 F.3d at

121; see also Dias Gomes, 566 F.3d at 233; Raza v. Gonzales, 484

F.3d 125, 129 (1st Cir. 2007); Orelien, 467 F.3d at 72; Galicia v.

Ashcroft, 396 F.3d 446, 448 (1st Cir. 2005). Applying these

principles, we are required to deny Mejilla-Romero's petition.

First, the IJ's and BIA's determinations that Mejilla-

Romero's experiences did not rise to the level of persecution were

supported by substantial evidence. Both the IJ and the BIA

considered Mejilla-Romero's encounters with his neighbor and the

gang, which are the source of his claims of persecution. Both

determined that these isolated altercations, while unfortunate,

were not sufficiently severe to meet the high bar required for a

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finding of past persecution. Our caselaw upholding BIA findings

about what constitutes persecution supports that conclusion.3

While one can have sympathy for petitioner, that is not

a basis on which to find the IJ and BIA were compelled to find

other than they did. Bocova, 412 F.3d at 263. The IJ also found

the psychological-effects evidence had not been shown to be

causally connected to the mistreatment of Mejilla-Romero in

Honduras, as opposed to other causes, and was insufficient to

establish persecution.

The IJ's and BIA's supportable determination that

Mejilla-Romero did not suffer from persecution is sufficient by

itself to deny the petition, without reaching the question of

whether the actions against him were motivated on account of one of

3
See Ravix v. Mukasey, 552 F.3d 42, 44-46 (1st Cir. 2009)
(holding that incidents including being "struck in the head by a
stone" and threatened at gunpoint did not rise to the level of past
persecution); Santosa v. Mukasey, 528 F.3d 88, 92-93 (1st Cir.
2008) (holding that a series of incidents in which the Indonesian
petitioner was targeted for his Chinese ethnicity, including being
bullied as a child and adolescent, attacked by a group of ten
people as a teenager, having rocks thrown at his store, and having
his car destroyed, did not rise to the level of past persecution);
Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (holding
that "ugly, discriminatory, and regrettable" incidents, including
"vandalization of the family home," a failed sexual assault when
the petitioner was fourteen years old, a mugging at knifepoint, the
bombing of the petitioner's church, and episodes in which crowds
"threatened and threw stones at [the petitioner] and her fellow
worshipers" did not rise to the level of past persecution); Bocova,
412 F.3d at 263 (holding that two incidents in which the petitioner
was arrested, beaten, and threatened with death did not rise to the
level of past persecution).

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the five statutorily protected grounds. See, e.g., Khan v.

Mukasey, 549 F.3d 573, 576-77 (1st Cir. 2008).

Mejilla-Romero asserts that the IJ and BIA erred in

concluding that he had not met his burden to prove the "on account

of" prong. He argues that the BIA mischaracterized the nature of

the attacks against him and his family, overlooking a purportedly

decades-old political dispute between the family and its neighbors,

as well as the types of violent gangs that operate in Honduras.

The IJ and BIA did reject the claim that the treatment Mejilla-

Romero received in Honduras had a political motivation and that was

also supported by substantial evidence. This, too, provides an

independent ground on which we must deny the petition.

The evidence does not establish, much less compel, the

conclusion that Mejilla-Romero has drawn the necessary connection

to one of the five grounds. Mejilla-Romero's testimony contained

no clear explanation for the motivation for Hubert's behavior and

certainly did not link it to any political feud between Hubert's

family and his own. Hubert lived with his aunt, who owned the

neighboring property. Mejilla-Romero testified only that he had

heard Hubert call his family "[c]ommunists" and describe them as

"[p]eople that are dying, that are starving."4 Nothing compelled

4
In Mejilla-Romero's October 2004 affidavit in support of
his application for asylum, he stated that he recalled that many of
his grandmother's neighbors were "upset" because his family had
less money than the neighbors and his grandmother built her home on
a "used piece of land in the neighborhood." He also said that his

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the IJ or the BIA to conclude that these statements signaled that

Hubert's motivations were based on the political beliefs of

petitioner or his family, or on retaliation.

Nothing in the testimony of the mother or aunt, or other

evidence, compels a different conclusion. The IJ did not make a

credibility determination regarding Mejilla-Romero's mother's and

aunt's statements beyond noting the flaws in his mother's testimony

and observing that her account nonetheless "generally corroborated"

Mejilla-Romero's testimony. However, the IJ thoroughly detailed

both the mother's and the aunt's testimony, including statements

that ostensibly linked Mejilla-Romero's encounters with Hubert to

a broader history of politically motivated conflict between their

families. Although the IJ plainly considered this testimony, the

IJ's decision reflected its determination that neither Hubert's nor

the gang's actions linked Mejilla-Romero's experiences to a

political feud.

Neither Mejilla-Romero's mother's "unclear" and

"inconsisten[t]" account, nor his aunt's incomplete and sometimes-

inconsistent testimony compel the conclusion that Hubert's acts

family's differences from the neighbors "became even clearer" when
he realized that his family flew the Liberal Party's red flag and
the neighbors flew the National Party's blue flags. These
affidavit statements do not compel the conclusion that his
encounters with Hubert were based on the political beliefs of
Mejilla-Romero or his family. Moreover, he did not mention these
events in his subsequent testimony before the IJ and indeed
testified he did not know why Hubert threw stones at him or did not
like his grandmother.

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were part of a larger pattern of attacks on account of the

political opinions of petitioner's family. Both the IJ and BIA

implicitly rejected those portions of Mejilla-Romero's mother's and

aunt's narratives that indicated Hubert's actions toward petitioner

were part of a broader dispute concerning the political beliefs of

petitioner or his family.5

Similarly, the IJ's and BIA's conclusion that the

particular gang Mejilla-Romero encountered consisted of teenaged

gang members whose motivation was to steal his money--not to

recruit him--was amply supported by Mejilla-Romero's own testimony.

That conclusion alone breaks any connection to an argument positing

that the cause of petitioner's experience with the gang is that he

belonged to a particular social group, a protected ground.

Even if Mejilla-Romero had shown the attacks were

motivated by his resistance to gangs and gang recruitment, which he

did not do, that would not help his case. Mere refusal to join a

5
The assertion of a broader political dispute depends on
stringing together bits and pieces of the sometimes-confusing and
internally contradictory testimony of petitioner's mother and the
incomplete testimony of his aunt. And to the extent Mejilla-Romero
now argues that, in the absence of an explicit lack-of-credibility
finding, we must take the mother's and aunt's testimony regarding
the purported political feud as credible, his argument is flatly
contradicted by our caselaw. See Kho v. Keisler, 505 F.3d 50, 56
(1st Cir. 2007) ("We have . . . rejected the proposition that
aliens are entitled to a presumption of credibility on review in
this court if there is no express credibility determination made by
an IJ."); Zeru v. Gonzales, 503 F.3d 59, 73 (1st Cir. 2007) ("Nor
is there an assumption that if the IJ has not made an express
finding of non-credibility, the alien's testimony must be taken as
credible.").

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gang does not constitute political opinion. Matter of E-A-G-, 24

I. & N. Dec. 591, 596 (BIA 2008). In seeking judicial review,

Mejilla-Romero argues the BIA was required to find he was a member

of a particular social group because of his purported resistance to

recruitment and antigang political opinions. As the BIA held, any

claim that Mejilla-Romero was specifically targeted on the basis of

his membership in a protected "social group" comprised of

individuals who resisted joining gangs is squarely precluded by BIA

precedent on the definition of "social group." The BIA correctly

cited to its precedent. See Matter of E-A-G-, 24 I. & N. Dec. at

594-95 (declining to find "persons resistant to gang membership" a

social group for purposes of a Honduran asylum petitioner's

persecution determination); Matter of S-E-G-, 24 I. & N. Dec. 579,

583-88 (BIA 2008) (holding that a proposed social group

"consist[ing] of young Salvadorans who have been subject to

recruitment efforts by criminal gangs, but who have refused to join

. . . fail[ed] the 'social visibility' test and d[id] not qualify

as a particular social group").

Mejilla-Romero argues that this analysis was insufficient

as a matter of law to permit judicial review and that, in any

event, the BIA's definition of social group is based on legal

error. The first argument is utterly without merit, as we detail

below. As to the second argument, he asserts that these BIA

decisions erred in using a "social visibility analysis" and

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"abandoned, without explanation" the method of social group

analysis first articulated in Matter of Acosta, 19 I. & N. Dec. 211

(BIA 1985). That argument, too, is without merit. The decisions

on which the BIA relied explained the reason for the BIA's actions.

They are built on a body of BIA precedent that integrated

consideration of "particularity" and "social visibility" into

social group determinations, as a means of "giv[ing] greater

specificity to the definition of a social group, which was first

determined in [Acosta]." Matter of S-E-G-, 24 I. & N. Dec. at 582

(collecting cases). And the argument ignores First Circuit law,

which is expressly to the contrary. We have explicitly affirmed

the relevance of the social visibility inquiry to social group

analysis. Faye v. Holder, 580 F.3d 37, 41 (1st Cir. 2009);

Scatambuli, 558 F.3d at 59-60. There was no legal error in the

BIA's analysis.

Petitioner's claim fails, as well, for another reason.

As the BIA found, Mejilla-Romero did not show that the Honduran

government was in any way involved in either the incidents with his

neighbor or his encounters with the street gang, the bases for his

purported "persecution." Nor did he present any evidence6 that the

6
His opening brief is devoid of any citation to the record
on this point. See Rios-Jimenez v. Principi, 520 F.3d 31, 39 n.5
(1st Cir. 2008) ("[A]ppellant's argument must contain '[the]
appellant's contentions and the reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies.'") (quoting Fed. R. App. P. 28(a)(9)(A)) (second alteration
in original).

-21-
Honduran government was unwilling to prosecute his assailants. In

fact, he testified that, to his knowledge, no effort had been made

to contact the authorities about the mistreatment he received, and

there was no evidence that the authorities were aware of the

attacks. Failure to inform law enforcement of threats or attacks

a petitioner claims to have suffered is material to the rejection

of claims of government participation or complicity in past

persecution. See, e.g., Dias Gomes, 566 F.3d at 233 (holding the

petitioners' failure to inform Brazilian police of gang threats

"sever[ed] the threats from any action or inaction of the

government of Brazil"); Castillo-Diaz v. Holder, 562 F.3d 23, 27-28

(1st Cir. 2009) (upholding IJ's determination that petitioner's

failure to report a rape that occurred when she was fifteen years

old precluded her claim of government involvement in the attack,

while noting IJ's consideration of evidence "that the government of

El Salvador has the power to prosecute rape cases and attaches a

significant penalty to a conviction for rape"); Galicia, 396 F.3d

at 448 (finding the petitioner's failure to contact authorities

after beating was a basis for holding that petitioner "did not show

that the harassment he suffered was by the government or a group

the government could not control").

Mejilla-Romero urges that the failure to contact

authorities should not bar his claim of past persecution; he claims

to fall into an exception. He argues that efforts to involve

-22-
authorities are unnecessary when it is clear from the record that

they "would have been unable or unwilling" to help. See In re S-A-

, 22 I. & N. Dec. 1328, 1335 (BIA 2000). The argument again misses

the mark. The BIA supportably found that what Mejilla-Romero

suffered did not amount to persecution and further that he did not

establish the government was unable or unwilling to help him.

The IJ recognized there had been "severe critici[sm]" of

the Honduran government's antigang measures. But the IJ also cited

specific reports in the record, which indicated that the Honduran

government was committed to combating gang violence and promoting

child welfare, as well as Mejilla-Romero's testimony that he did

not know if the incidents with Hubert had been reported to the

police and that no one had contacted the authorities regarding his

experiences with the gang. Moreover, although the IJ did not

discuss this point, record evidence showed that Honduran

authorities had previously intervened on the family's behalf,

indicting Mejilla-Romero's uncle's killer and issuing a warrant for

his arrest.7 Mejilla-Romero's emphasis on flaws in Honduras's

criminal justice system does not alter the fact that the IJ's

determination was supported by substantial evidence.

The IJ's and BIA's findings that Mejilla-Romero lacked a

well-founded fear of future persecution were also supported by

7
The IJ's decision included a copy of the warrant in its
recitation of the documentary evidence.

-23-
substantial evidence. As the IJ held, the fact that Mejilla-

Romero's father, his grandmother, and members of his grandmother's

family reside in Honduras undercuts the objective reasonableness of

Mejilla-Romero's fear that he would suffer persecution as a "street

child"8 or "at the hands of 'Hubert' and the . . . gangs."

Mejilla-Romero did not testify as to whether any of his relatives

who remained in Honduras faced ongoing difficulties with Hubert or

the gangs. The fact that a petitioner's family members "continue

to live in relative safety" in his country of origin is relevant to

an IJ's finding of failure to establish a well-founded fear of

persecution. Budiono v. Mukasey, 548 F.3d 44, 50 (1st Cir. 2008);

see also Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 1999)

("Without some explanation, the fact that close relatives continue

to live peacefully in the alien's homeland undercuts the alien's

claim that persecution awaits his return.").

In addition, the IJ found Mejilla-Romero could relocate

safely elsewhere to avoid gang violence. Mejilla-Romero's argument

that the government failed to produce evidence that he could safely

8
There is no need to analyze whether eighteen-year-olds
are "street children" or whether "street children" suffer
persecution in Honduras. Cf. Escobar v. Gonzales, 417 F.3d 363,
368 (3d Cir. 2005) (rejecting an argument by younger petitioner
that homeless Honduran children constituted a "particular social
group" for purposes of asylum determination and explaining that
"[p]overty, homelessness and youth are far too vague and all
encompassing to be characteristics that set the perimeters for a
protected group within the scope of the Immigration and
Naturalization Act").

-24-
relocate elsewhere within Honduras misplaces the burden of proof.

Having failed to show that he suffered past persecution, it was

Mejilla-Romero's burden to demonstrate that he could not avoid

future persecution by moving to another part of Honduras. See

Orelien, 467 F.3d at 71. Substantial evidence supported the IJ's

and BIA's determinations that he had not done so, since internal

relocation could avoid both Honduran street gangs, which are

"primarily confined" to particular urban areas, and "difficulties

with 'Hubert,'" which "all occurred in and around Arimis."9

An argument is made that the IJ failed to consider the

evidence in the record beyond Mejilla-Romero's own testimony.

However, the IJ's lengthy written decision proves otherwise. The

IJ thoroughly reviewed the testimony of Mejilla-Romero, his mother,

and his aunt. The decision listed the extensive documentary

evidence in the record and noted that the IJ had "considered all of

9
Mejilla-Romero also argues that the BIA abused its
discretion by failing to grant him humanitarian asylum, "a
discretionary doctrine sometimes available even in the absence of
a threat of future persecution." Bollanos v. Gonzales, 461 F.3d
82, 86 (1st Cir. 2006); see also 8 C.F.R. § 1208.13(b)(1)(iii).
However, such relief explicitly requires a threshold showing of
past persecution. 8 C.F.R. § 1208.13(b)(1)(iii); see also Waweru
v. Gonzales, 437 F.3d 199, 205 (1st Cir. 2006) (noting that
humanitarian asylum "is granted only in cases of extraordinary
suffering") (internal quotation marks omitted).
Because we have found that substantial evidence supports the
IJ's and BIA's determination that Mejilla-Romero's mistreatment did
not constitute persecution, his "claim for discretionary relief
necessarily also fails." Akinfolarin v. Gonzales, 423 F.3d 39, 44
n.6 (1st Cir. 2005).

-25-
the testimony and all of the documentary evidence in support of

[Mejilla-Romero's] requests for relief from removal."

The IJ's attention to the documentary evidence was

apparent in his analysis of Mejilla-Romero's claim. The decision

explicitly cited, engaged with, and relied on a wide range of

exhibits, including: Mejilla-Romero's application for asylum, his

mother's application for asylum, his birth certificate, copies of

his aunt's and uncle's death certificates, documents pertaining to

the deportation of his father, a photograph of the scar on Mejilla-

Romero's leg, affidavits on conditions in Honduras, numerous

country reports, and the psychological evaluation. This far-

reaching consideration by the IJ of the record is sufficiently

clear to facilitate our review of the decision and demonstrates to

the court that the IJ's ruling had a supportable basis in the

record as a whole. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir.

2007) ("Although an IJ may not simply ignore substantial

testimonial and documentary proof, she need not discuss ad nauseam

every piece of evidence. So long as the IJ has given reasoned

consideration to the evidence as a whole, made supportable

findings, and adequately explained her reasoning, no more is

exigible.") (internal citation omitted).

Mejilla-Romero's related assertion that the BIA failed

fully to articulate the basis for its decision is also without

merit. Mejilla-Romero presented essentially the same arguments to

-26-
the BIA regarding the nature of the threats he faced from his

neighbor and the street gang that he now makes to us. The BIA "is

not required to dissect in minute detail every contention that a

complaining party advances" and need only frame "its decision in

terms adequate to allow a reviewing court to conclude that the

agency has thought about the evidence and the issues and reached a

reasoned conclusion." Raza, 484 F.3d at 128; see also Lopez Perez

v. Holder, 587 F.3d 456, 460-61 (1st Cir. 2009). The BIA's

adoption of the IJ's opinion and elaboration of certain points more

than provided an adequate basis for review.

Because Mejilla-Romero cannot meet the less stringent

standard for asylum, his arguments in support of his application

for withholding of removal necessarily fail. See, e.g., Orelien,

467 F.3d at 73. So too is the record devoid of anything that would

compel a fact-finder's determination that Mejilla-Romero would

"more likely than not . . . be tortured if removed" to Honduras.

8 C.F.R. § 208.16(c)(2).

We are bound by strict standards of review. We may not

grant the petition unless the evidence compels a conclusion

different from that reached by the IJ. We are forbidden from

engaging in de novo review or acting as though we were the IJ

hearing the case.

The petition for review is denied.

-Concurring Opinion and Dissenting Opinion Follow-

-27-
 SELYA, Circuit Judge, concurring. This is a hard case.

The record is plenitudinous and, by giving more weight to certain

facts and less weight to gaps in the evidence, and drawing

inferences accordingly, it is easy to paint a heart-wrenching

picture of the petitioner's plight. The dissenting opinion does a

masterful job of painting just such a picture.

But there is a rub: reviewing courts, in immigration

cases, do not have the luxury of choosing at will which facts to

emphasize or which inferences to draw. These are functions for the

agency, and the appropriate standard of review requires a high

degree of deference to the agency's choices.

In this case, the agency addressed the theories fairly

raised, made permissible (albeit not inevitable) decisions about

which facts controlled, drew reasonable inferences from those facts,

and applied well-settled burdens of proof. Sitting as a trier of

fact, I might not have found the same facts controlling and might

have reached the conclusion that my dissenting brother proposes.

Yet, that is irrelevant to the task at hand. The agency saw the

matter differently: it emphasized the facts that it found

controlling; squarely addressed and squarely rejected the

petitioner's arguments; and made a judgment which, however

unsympathetic, fell within the universe of supportable outcomes.

In other words, the agency did its job. The lead opinion recognizes

-28-
this reality and, to my mind, is faithful to the dictates of the

standard of review.

In the last analysis, "it is the duty of all courts of

justice to take care, for the general good of the community, that

hard cases do not make bad law." Lopez de Hincapie v. Gonzales, 494

F.3d 213, 221 (1st Cir. 2007) (quoting Lord Campbell in East India

Co. v. Paul, 7 Moo. P. C. C. 111). Guided by that wise counsel, I

join the lead opinion authored by Chief Judge Lynch and concur in

the judgment of the court denying the petition for review.

-Dissenting Opinion Follows-

-29-
 STAHL, Circuit Judge, dissenting. I dissent because the

majority has repeated the same mistakes of the Board of Immigration

Appeals (BIA) and the Immigration Judge (IJ) by failing to consider

the complete record and misstating the relevant facts of this case.

The majority commits two related errors. First, the

majority overlooks that the IJ and BIA denied Celvyn's10 asylum

application without considering the actual claim he put forth. Both

courts characterized Celvyn's claim as alleging past persecution

based merely on a dispute among neighbors over property boundaries.

This error resulted because both administrative courts limited their

understanding of the factual basis of Celvyn's claim to the oral

testimony Celvyn gave when he was just thirteen years of age,

testifying about events that occurred when he was a young child of

five to eleven years old. In fact, the extensive supporting

evidence submitted in this case supports Celvyn's claim that he

suffered violent persecution on account of an imputed political

opinion attributed to him because of his family's long-standing land

activism. Where administrative courts render a decision that does

not address the basis of an asylum applicant's claim, as they did

here, we are required at a minimum to remand for consideration of

the actual claim put forth by the applicant. We cannot, as the

10
Though the majority, the BIA, and the IJ refer to petitioner
as Selvin Mejilla-Romero, the petitioner's name is Celvyn Azael
Mejia Romero. Apparently the incorrect name originated with a data
entry error in his original Notice to Appear and was never
corrected by the government despite notice of the problem.

-30-
majority does here, simply review the facts in the first instance

and affirm based on a rationale not considered by the agency.

Second, even if the majority is correct that it can remedy

the lower courts' failure to consider the substance of Celvyn's

claim by conducting a review of the facts in the first instance on

appeal, the majority's attempt to review the record is ineffective.

While the majority makes reference to some of Celvyn's extensive

supporting evidence it still mischaracterizes the basic content of

his asylum claim, largely limiting its analysis to the oral

testimony of a child, diagnosed with post traumatic stress disorder

(PTSD), and testifying about events that occurred when he was very

young. A review of the record as a whole compels the conclusion

that Celvyn is entitled to the protections afforded to refugees.

The majority's decision also raises a larger concern. By

approving the administrative courts' failure to consider the

substance of Celvyn's asylum claim and by essentially adopting this

same approach itself, the majority avoids the obligation of our

court system to treat children who seek refugee protection with the

care and attention required by law, administrative guidance and

international norms. This failure has resulted in a decision that

is both legally incorrect and that inflicts a terrible human price

on a child11 who has turned to the United States for protection.

11
The Immigration and National Act (INA) defines a "child" as
an unmarried person under twenty-one years of age, meaning Celvyn,
who is now eighteen, still qualifies as such. See INA §§ 101(b)(1)

-31-
 Below, I first recount the factual basis of Celvyn's

asylum claim, drawing as I must from the complete record. Second,

I explain that a remand is required because the administrative

courts failed to issue a merits decision on the claim actually

presented by Celvyn. Third, I explain how the majority and the

courts below misapplied the asylum standard to Celvyn's claim.

Fourth, I explain how the record evidence compels the conclusion

that Celvyn suffered persecution on account of his family's

political activities and why he therefore should be granted asylum.

I. The Factual Basis of Celvyn's Claim

The facts as drawn from the complete record are as

follows. Celvyn's family has long been involved in political

activism in their rural town of Arimis, in the province of Olancho,

Honduras, and has suffered decades of persecution on account of that

activity. Celvyn's step-grandfather, Angel Herrera, was a founding

member of Lincol, a local activist organization of landless peasants

that organized land takeovers and other actions which were legally

permissible under Honduran land reform legislation of the time.

Lincol was named after Lincoln Coleman, who was a land-reform leader

in Olancho province and executive secretary of the League of

Peasants of Olancho in the 1970s. The Lincol activists were opposed

by the wealthy land-owning elite in the area. The landowners were

aided and supported by the local police and military. In 1982 or

and 101(c)(1), 8 U.S.C. § 1101(b)(1) and (c)(1).

-32-
1983, Angel was killed by a group of soldiers because of his

involvement in Lincol and the land reform movement. In 1982,

another family member, the brother-in-law of Celvyn's mother's

sister, was also killed for his involvement in the Lincol movement.

Celvyn's grandmother was an active and visible member of

Lincol and the Liberal Party, a leftist political party supportive

of land rights for landless peasants. In the 1970s, she was

involved with Lincol through her husband Angel. She also supported

the group during land invasions and other actions by delivering and

selling food and sweets to the activists. She brought her young

daughter, Celvyn's mother, along with her when she sold the food.

Several years after her husband Angel's murder, Celvyn's grandmother

put the Lincol beliefs into practice by squatting on an unused piece

of land in the town of Arimis and building her home on it, which

greatly antagonized her wealthy, land-owning neighbors. She flew

the red Liberal Party flag above that home, while her wealthy

neighbors flew the blue National Party flag.

The family continued to be targeted for its activism when

Cevlyn's uncle, Carlos Augusto Romero Erazo, who was involved with

Lincol, was murdered in 1996. He was killed by Gregorio ("Godo")

Mejia, a cousin from the family that owned the land on which

Celvyn's mother was squatting. The family reported the murder to

the authorities, who issued a criminal indictment, but never

arrested Godo or otherwise resolved the case. The earliest memory

-33-
that Celvyn testified about was witnessing the dead body of his

uncle with a machete wound to the head, a significant traumatic

event for a five-year-old child.

From his earliest memories, Celvyn recalls neighbors

harassing and threatening his family for their political views.

When Celvyn was three, his mother fled to the United States to

escape a brutally abusive relationship with a member of one of the

wealthy local families. Celvyn was left to live with his elderly

grandmother and his two young cousins in the home in Arimis that sat

on appropriated land. Though very young, he possessed an age-

appropriate understanding of the political divisions between his

family and their wealthy neighbors.

In addition to the trauma that he experienced at the age

of five, when he witnessed his uncle's dead body, Celvyn was also

repeatedly taunted and physically assaulted by a neighbor named

Hubert Mejia, who was a member of the same wealthy family that owned

the land on which Celvyn's grandmother was squatting. Hubert would

throw stones at Celvyn when he was walking outside and on two

occasions he brutally attacked the family when Celvyn, his

grandmother, and his two young cousins were alone in the house.

Hubert wielded a machete during both attacks. Though he did not

understand the nuances, Celvyn perceived that Hubert, and other

neighbors like him, did not like Celvyn's family because of

political and economic disputes -- he noted that during the attacks

-34-
Hubert called him and his grandmother "Communists" and "people that

are dying, that are starving."

Hubert's first violent assault on the family occurred when

Celvyn was about ten years old, though the record is unclear on this

point. During the attack, Hubert wielded a machete and chased

Celvyn and his grandmother around the home, repeatedly punching and

hitting Celvyn. Hubert threw his weapon at Celvyn, leaving a large,

eight inch scar on Celvyn's right leg. A photo of the scar was

entered into evidence.

Fearing for his safety after this assault, Celvyn's

grandmother arranged for Celvyn and his two young cousins to leave

Honduras and travel to the United States. However, Celvyn and his

cousins were apprehended in El Salvador, presumably by Salvadoran

authorities, and returned to Arimis. Following his return, Celvyn's

grandmother kept him indoors and did not let him go to school, for

fear of more violence from those opposed to her activism. In early

2002, when Celvyn was eleven, his grandmother's fears were

substantiated when Hubert again attacked the family. This time,

Hubert used a machete to ransack and destroy the entire house,

slashing windows and the interior of the house. He also used his

machete to cut down and destroy the agriculture and vegetation

surrounding the house. Celvyn, his grandmother, and his young

cousins were at home during the attack and feared for their lives.

The violence toward the elderly grandmother and three young

-35-
children, along with the destruction of the home, were so

overwhelming that when Celvyn's aunt (his mother's sister) saw the

aftermath, she suffered a heart attack and died four days later.

A death certificate for the aunt, admitted into evidence, showed

that she died on April 2, 2002. Shortly after this second attack,

Celvyn's grandmother successfully sent Celvyn to the United States.

Celvyn also testified, in an appropriately child-like way,

that neither he nor his grandmother called the police to report the

many assaults on the family because, "[t]he police wouldn't do

anything here." He also testified that, "Where I was living, there

was no police force." The family's belief that the authorities

would not protect them was a conclusion based on decades of

experience. The landowners who opposed the family's work with

Lincol enjoyed the active support of the local police, and military

and government soldiers had killed Celvyn's step-grandfather. When

the family reported the uncle's murder in 1996, the authorities

never arrested or prosecuted the landowner who was responsible.

Indeed, the Department of State confirmed this trend, noting in its

1999 Country Report that the "local landowners" in Olancho province

had formed "large-scale vigilante groups," apparently without

resistance from the authorities.

In short, by 2002, Celvyn felt under siege, confined to

his home, fearful of the next instance of violence from his

neighbors and sure that no one could or would protect him. As he

-36-
put it, "[I]f I would be leaving the house, I assume that the one

neighbors would get me on one side, the other neighbors would get

me on the other side."

The violence inflicted on Celvyn because of his family's

land reform activism was not the only physical and emotional trauma

this young boy experienced in Arimis. As the record shows, Honduras

suffers from a tremendous gang problem. Though he was very young,

about eight or nine years old, Celvyn faced attempted recruitment

by older gang members in his town. He resisted this recruitment and

suffered terribly as a result. Gang members harassed him on his way

to and from school, physically bullied him, and tried to steal his

money. They also threw a snake at him, and he had to fend off

sexual assaults from the same gang members. In the worst incident,

gang members brought Celvyn to the roof of a small house and threw

him down toward the ground, where he became entangled in barbed

wire. He could not free himself and believed he had been left there

to die. According to Celvyn's treating psychologist, he has visible

scars from the barbed wire on his back and right arm. Fortuitously,

a family friend, whom Celvyn called "Uncle," happened upon him and

freed him from the barbed wire.

Finally, Celvyn and his mother testified consistently that

if Celvyn were to return to Honduras he would have no one to care

for him. All of his immediate and extended family members are

either dead or live in the United States, with the exception of his

-37-
biological father and grandmother. As for the father, Celvyn

repeatedly stated under probing cross-examination that his dad was

an absentee father who never raised or cared for him and would not

take care of him now. In addition, though his father had been

deported to Honduras, neither Celvyn nor his mother knew where he

was or had had any contact with him since his departure.

As for Celvyn's grandmother, she went into hiding in 2002,

the year she sent Celvyn to the United States. The family did not

hear from her for four years until one of Celvyn's aunts traveled

to Honduras in 2006 to find her. According to Celvyn's mother's

supplemental affidavit, the aunt found that the grandmother had

returned to Arimis, was living in the same house on the appropriated

land, was elderly and ill, and feared for her life. The grandmother

reported that the wealthy neighbors had made it clear that they were

opposed to her return to Arimis.

II. Decisions Below

A review of the decisions issued by the IJ and the BIA

shows that these administrative bodies failed to render a decision

on the claim actually put forth by Celvyn, that he suffered

persecution on account of a political opinion imputed to him based

on his family's long-standing land reform activism. They only

considered whether Celvyn suffered past persecution on account of

a dispute with what they termed a "disgruntled neighbor." This was

not Celvyn's claim. Worse, they drew exclusively from the child

-38-
applicant's oral testimony to determine the universe of facts

supporting his claim. Given that the agency failed to address the

actual claim and evidence put forth by Celvyn, this case should be

remanded for consideration of the merits of the actual claim. See

Gailius v. I.N.S., 147 F.3d 34, 44 (1st Cir. 1998) ("'[A] reviewing

court . . . must judge the propriety of [administrative] action

solely by the grounds invoked by the agency.'" (alteration in

original) (quoting SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)));

Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 349

(1st Cir. 2004) ("It is a bedrock principle that a court may only

uphold an administrative action on a rationale advanced by the

agency in the administrative proceeding.").

It is impossible to find anywhere in the BIA's very

abbreviated opinion a discussion of the claim actually made by

Celvyn or any consideration of his extensive supporting evidence.

In its opinion, which amounts to one page of substantive text, the

Board provides two sentences purporting to explain the factual basis

of Celvyn's political persecution claim, which are worth quoting in

full:

In addition, his 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.

This beggarly effort to set forth the basis of Celvyn's persecution

claim does not rise to the bare minimum that we should expect from

-39-
a responsible administrative court.12 The BIA grossly misstates the

content of Celvyn's claim and refers only to Celvyn's oral testimony

to discern the factual support for his claim. The Board went on to

dismiss the political persecution claim in one sentence, opining

that "the actions of a disgruntled neighbor . . . did not rise to

the level of persecution." The BIA provided absolutely no analysis

of Celvyn's actual claim, meaning there is no decision on the merits

for the majority to review.

The IJ's opinion, though longer than the BIA's, is no

better. The IJ did not analyze whether Celvyn's claim -- that he

was persecuted on account of an imputed political opinion based on

his family's decades of land reform activism -- rose to the level

of the statutory definition for political asylum. The section of

the IJ's opinion labeled "Past Persecution" reveals that the IJ

limited the factual basis of Celvyn's claim to the following:

The Respondent testified that "Hubert," his
former neighbor in Honduras, destroyed his
grandmother's home and windows with a machete,
frequently called him a "Communist," threw stones
at him, and on one occasion, hit him in the leg
with a machete.

12
The majority's citation to Raza v. Gonzales, 484 F.3d 125
(1st Cir. 2007), supports my view. We have required that the BIA,
at a minimum, frame "its decision in terms adequate to allow a
reviewing court to conclude that the agency has thought about the
evidence and the issues and reached a reasoned conclusion." Id. at
128. Here, the BIA and the IJ have so completely misstated the
factual basis of Celvyn's claim that it is plain that the agency
has not adequately thought about the evidence and therefore could
not have reached a reasoned conclusion.

-40-
Thus, the IJ ignored Celvyn's imputed political opinion claim and

the extensive evidence of the family's decades of activism and

resulting persecution. The above excerpt also shows that the IJ

drew only from Celvyn's oral testimony to analyze his past

persecution claim, ignoring the powerful supporting evidence

introduced at trial.13 Further, the IJ's conclusion about Celvyn's

past persecution claim starkly shows that he simply did not consider

the claim Celvyn actually put forth:

While these events were, without a doubt,
troubling, they amount to no more than a series
of isolated altercations with a disgruntled
neighbor.

This conclusion does not address Celvyn's claim or evidence.

Finally, the IJ stated that:

There is no evidence in the Record of Proceedings
that the Respondent was ever physically punished
for possessing a belief or characteristic that
others sought to overcome.

This stunningly inaccurate statement reveals that the IJ simply did

not consider Celvyn's assertion of imputed political opinion or his

13
Because this is such an important point of disagreement with
the majority, I have appended to my dissent the IJ's complete
analysis of Celvyn's past persecution claim, which can be found on
pages 17 and 18 of the IJ's opinion, under the heading "Past
Persecution." Despite the majority's attempt to paper over the
IJ's failure to review Celvyn's claim, the appended portion plainly
does not include a review of Celvyn's claim or his supporting
evidence. It is simply not there.

-41-
evidence of his family's decades-long land activism and resulting

persecution.

Even though the IJ's decision plainly does not address

Celvyn's claim, the majority thinks the IJ nonetheless did a good

enough job because he (1) narrated the content of the mother's

testimony in a section of the opinion entitled "Testimonial

Evidence", and (2) included a list of the documentary evidence

submitted by Celvyn and asserted that he had considered all such

evidence. The problem, however, is that the IJ's analysis of

Celvyn's past persecution claim, excerpted above and appended in

full to this dissent, gives zero indication that the IJ actually

considered Celvyn's imputed political opinion claim or that he took

into account the evidence submitted in support of that claim. The

IJ committed a basic error by not considering the claim actually put

forth by the applicant, and the majority has chosen to excuse the

IJ's failure. Quite simply, Celvyn was entitled to receive a merits

decision on the claim and evidence he submitted to the immigration

court. Thus, remand is necessary.

III. The Merits of Celvyn's Asylum Claim

My preliminary objection, as noted above, is that Celvyn's

claim did not receive due consideration below, thus requiring a

remand. However, even if the courts below issued a valid merits

decision, I believe a review of the entire record shows there is not

substantial evidence to support the denial of Celvyn's asylum claim.

-42-
And though our standard of review is highly deferential in asylum

cases, the evidence presented in this case indeed compels the

conclusion that Celvyn suffered past persecution on account of an

imputed political opinion. The administrative courts below reached

the opposite conclusion by relying exclusively upon the oral

testimony of a young child diagnosed with PTSD rather than

considering the record as a whole, which is strongly supportive of

his claim of persecution. Relying on oral testimony while ignoring

other strongly supportive record evidence was precisely the basis

of our remand in Mukamusoni v. Ashcroft, 390 F.3d 110, 120-21 (1st

Cir. 2004), and should be here as well.

Further, in ignoring Celvyn's persuasive supporting

evidence, the courts below violated case law, administrative

guidance, and international norms regarding how courts should

analyze children's asylum claims.

A. Asylum Standard

Because the majority's discussion of the standard for

political asylum is incomplete, I relate the full test below. An

applicant may establish eligibility for asylum based on past

persecution alone. See 8 CFR § 1208.13(b). A finding of past

persecution gives rise to a presumption that the applicant also has

a well-founded fear of future persecution. See id. § 1208.13(b)(1).

This presumption can only be rebutted by a showing that either

changed circumstances have rendered the fear of future persecution

-43-
moot or that by relocating to another part of the country the

applicant can avoid future persecution. See id. § 1208.13(b)(1)(i).

Even if the presumption is successfully rebutted, the applicant may

still be granted asylum if (1) the applicant has demonstrated a

compelling reason for being unwilling or unable to return to his

country arising out of the severity of the past persecution, or (2)

the applicant has established a reasonable possibility that he may

suffer other serious harm upon removal to his home country. See id.

§ 1208.13(b)(1)(iii).

As for our standard of review, we review the factual

findings below for substantial evidence, meaning we must ask whether

the lower courts' conclusions are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." Rivas-Mira v. Holder, 2009 WL 323469, at *4 (1st Cir.

February 11, 2009) (emphasis added). Importantly, "deference is not

due where findings and conclusions are based on inferences or

presumptions that are not reasonably grounded in the record, viewed

as a whole." Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994)

(emphasis added). Importantly, we have found reversible legal and

factual error where the BIA only drew on the respondent's oral

testimony and ignored significant supporting evidence, including the

respondent's affidavit. See Mukamusoni v. Ashcroft, 390 F.3d 110,

120-21 (1st Cir. 2004).

-44-
B. Age and Mental Status of the Respondent

The IJ found Celvyn's testimony credible. However, the

quality of the information Celvyn was able to relay in his oral

testimony was undermined by three significant factors, none of which

was considered by the IJ or the BIA. First, Celvyn's testimony

recounted events that occurred when he was between the age of five,

when he witnessed the machete-wounded body of his murdered uncle,

and eleven, when he fled Honduras. Second, Celvyn gave his oral

testimony when he was just thirteen and in the fifth grade. Third,

prior to his oral testimony, Celvyn was diagnosed by a psychologist

at the Cambridge Health Alliance with post traumatic stress

disorder, which she concluded was caused by "exposure to traumatic

events" in Honduras, including being "hung on a barb wire fence,"

being "cut with a machete," and experiencing "death threats,

attempted rapes and other forms of violence where he feared for his

life."14

14
The doctor's evaluation is the only evidence in the record
pertaining to Celvyn's mental health. Nonetheless, the IJ
dismissed the doctor's conclusion as to the cause of Celvyn's PTSD
based on pure speculation. The IJ mused that there was no evidence
in the record that Celvyn's PTSD was caused by the "encounters"
with the neighbors and the gang members rather than "perhaps, the
difficulties involved in traveling unaccompanied to the United
States." In other words, the IJ dismissed the expert's uncontested
causal diagnosis of Celvyn's PTSD based on nothing more than the
IJ's own personal guess that perhaps Celvyn's trauma might have
been caused by his travel to the United States. The majority, in
turn, adopts the IJ's speculative stance on this issue in spite of
the uncontested record evidence identifying the source of Celvyn's
PTSD. The majority's acrobatic attempts to get around the clear
and uncontested findings of the medical professional violate our

-45-
 When children seek asylum, the courts must approach their

cases with particular care for a variety of reasons. First, as case

law and U.S. Department of Justice policy reflect, a child

experiences traumatic events in ways that are different from an

adult, and a child is less likely to understand and to be able to

explain the reasons that violence has been inflicted upon him. See,

e.g., Civil v. I.N.S., 140 F.3d 52, 62 (1st Cir. 1998) (dissenting

opinion); Kahssai v. I.N.S., 16 F.3d 323, 329 (9th Cir. 1994);

"Guidelines for Children's Asylum Claims," U.S. Department of

Justice, INS Policy and Procedure Memorandum ("1998 DOJ Memo"),

December 10, 1998, available at 1998 WL 34032561 ("The harm a child

fears or has suffered . . . may be relatively less than that of an

adult and still qualify as persecution."). For this reason, the

U.S. Department of Justice has mandated that, when considering a

child's asylum claim, an immigration judge must, among other things,

evaluate the child's testimony in light of his age, development, and

experience:

Judges should recognize that children,
especially young children, usually will not be
able to present testimony with the same degree
of precision as adults. Do not assume that
inconsistencies are proof of dishonesty, and
recognize that a child's testimony may be

case law and are surprising. See Cordero-Trejo, 40 F.3d at 487
(deference to BIA "is not due where findings and conclusions are
based on . . . merely personal views of the immigration judge")
(citations omitted). A simple reading of the psychological report
leaves no doubt that Celvyn's PTSD was caused by the extreme
violence he experienced in Honduras at such a young age.

-46-
 limited not only by his or her ability to
understand what happened, but also by his or
her skill in describing the events in a way
that is intelligible to adults.

"Interim Operating Policies and Procedures Memorandum 04-07," U.S.

Department of Justice, September 16, 2004. Because of the

difficulty a child is likely to have in explaining what happened to

him and why,15 the United Nations High Commissioner for Refugees

(UNHCR) has advised that asylum adjudicators should give additional

15
An in-depth report from Harvard University on minors seeking
asylum in the United States provides anecdotal examples of this
difficulty:

For children, presenting their own evidence can be difficult.
One asylum officer recounted a compelling case involving a
10-year-old girl whose father worked for a corrupt politician.
Because the father knew compromising information about the
politician, both parents were assassinated while the father
was still employed by this politician. During her asylum
interview, the orphaned girl focused primarily on the computer
that her father would bring home from work rather than on the
political context that had destroyed the family. Fortunately,
news accounts of the parents' assassination--supplied by
supportive adults who realized their relevance--existed to
corroborate and fill out the child's story. In another case,
a Quality Assurance and Training Officer recalled that a child
was asked "Why did they kill your uncle?" The child responded,
"To make my grandmother sad." Though children may be eligible
for asylum, providing the evidence to support the claim may be
impossible. As another asylum officer commented on the
challenge of relying on children's memory, "A lot of what
sticks isn't what we need."

"Seeking Asylum Alone in the United States," J. Bhabha & S.
S c hmid t , J u n e 2 0 0 6 , a v a i l a b l e a t
www.humanrights.harvard.edu/images/pdf_files/Seeking_Asylum_Alone
_US_Report.pdf.

-47-
weight to objective evidence in order to supplement the child's own

subjective testimony:

Although the same definition of a refugee
applies to all individuals regardless of their
age, in the examination of the factual
elements of the claim of an unaccompanied
child, particular regard should be given to
circumstances such as the child's stage of
development, his/her possibly limited
knowledge of conditions in the country of
origin, and their significance to the legal
concept of refugee status, as well as his/her
special vulnerability. Children may manifest
their fears in ways different from adults.
Therefore, in the examination of their claims,
it may be necessary to have greater regard to
certain objective factors, and to determine,
based upon these factors, whether a child may
be presumed to have a well-founded fear of
persecution.

UNHCR, "Policies and Procedures in Dealing with Unaccompanied

Children Seeking Asylum," February 1997, 12-13 (emphasis added).

Nor is this guidance unique to the immigration context. It has

numerous correlates in other areas of juvenile justice. See

Kristine K. Nogosek, "It Takes a World to Raise a Child: A Legal and

Public Policy Analysis of American Asylum Legal Standards and Their

Impact on Unaccompanied Minor Asylees," 24 Hamline L. Rev. 1, 13-17

(2000) (outlining the protections and assistance afforded to

children in other areas of law, including contract, tort, and

criminal law).

-48-
 In Celvyn's case, the IJ16 and the BIA limited their

accounts of the basis of Celvyn's asylum claim to the oral testimony

given by this young boy. Limiting review to such a small portion

of the record would be inexcusable in any case, see Mukamusoni, 390

F.3d at 120-21, but it is particularly so in a case involving a

minor. Reading the transcript of Celvyn's oral testimony, one finds

that it is exactly what one would expect from a thirteen-year-old

discussing events that occurred when he was five to eleven years

old. His description of multiple incidents of violence is

simplistic;17 he can only offer basic explanations for why such

16
In his analysis of the past persecution issue, the IJ stated
that he considered the fact that children may experience
persecution in ways that are different from adults. However, the
IJ's supposed consideration of Celvyn's age was meaningless given
that the IJ did not address Celvyn's imputed persecution claim,
only drew upon the child's oral testimony, and ignored the
extensive evidentiary support for his claim. In effect, despite
Celvyn's age, the IJ required him to carry his asylum burden
through his oral testimony alone. It should not be enough, as the
majority apparently believes, for the IJ to merely state he has
taken age into account. Where the written decision plainly shows
that the IJ neither considered the child applicant's imputed
political opinion claim nor considered his extensive supporting
evidence, accepting at face value the IJ's assurance that he has
factored in age amounts to placing form over substance. I would
require that the IJ demonstrate through his analysis that this
factor was taken into account. There is a big difference between
these two. Using magic words should not be enough.
17
For example, relating one of his neighbor's violent machete
attacks against himself and his elderly grandmother, Celvyn's
story-telling was very simple:

Q: Did he ever harm you?
A: Yes.
Q: What kind of things did he do to you?
A: One, once, this day, I was running because he was hitting me and
he threw a machete at me.

-49-
violence was inflicted upon him and his family;18 and he shows only

a very basic, one might say "child-like," understanding of the

political context of the trauma that engulfed his young life.19

Q: And what happened when he threw the machete at you?
A: He hit me here.
. . .
A: He grabbed the machete and he threw it against me and the
machete ends up, ended up this way.

18
For example, during cross-examination, Celvyn tried to
explain why almost all of his family members had fled Honduras. He
clearly understood that there was something systematic about the
violence inflicted on his family, but his explanation of the larger
context is limited by his age and development:

Q: Okay. And did your grandmother tell you why your mom and father
came to the United States?
A: They went through the same thing I went through. Before, when
she was in Honduras, also the family, the boys, the neighbor, they
would bother our family and that's the reason all of them, almost
all of them came here.
Q: Okay. Who told you that?
A: My mother. She knows that. She told me that.
. . .
A: When I told her what happened to me, she told me the same thing
happened to me.

19
Again on cross-examination, the government attorney probed
the "on-account-of" element of the asylum standard. Celvyn knew
that his neighbors called him and his family "Communists" but, in
a textbook example of what constitutes a purely imputed political
opinion, he stated that he did not even know what that word meant:

Q: Okay. And do you know why Hubert didn't like your grandmother?
A: No.
Q: Do you know why he said Communists?
A: I don't know what that word means.
Q: Okay. And did you hear it yourself or did someone tell you
that's what he said?
A: He stated Communists.
Q: And you don't know what he meant by that?
A: No.

-50-
Despite this, three courts have ignored the voluminous additional

evidence that explains in great detail the political causes of the

violence that Celvyn and his family experienced. The IJ, BIA, and

now, to a large extent, the majority have contented themselves with

quoting from Celvyn's simplistic oral testimony, using such

quotations to purportedly show that there really is no meat on the

bones of his asylum claim. This strikes me as particularly

troubling given that the respondent is a young child who, by virtue

of his age and development, simply cannot carry his asylum burden

based on his oral testimony alone.

C. The Record Evidence

In this section, I expand upon the sources of evidence

contained in the 1,800-plus page record, evidence that was ignored

by the IJ and BIA and inadequately considered by the majority.

1. The Mother's Oral Testimony

Celvyn's mother's testimony explained what Celvyn, by

virtue of his age, could not. In short, the mother explained (a)

the severity and pervasive nature of the trauma that Celvyn

experienced, which goes to past persecution; (b) how the on-going

trauma that he experienced was the result of the family's political

activism, which goes to the on-account-of element; and (c) how the

government was unwilling or unable to protect the family, and at

times even complicit in carrying out the persecution.

-51-
 In order to conclude that Celvyn did not present

sufficient evidence to compel the conclusion that he qualifies for

asylum, the majority must explain away the validity of the powerful

evidence contained in the mother's testimony. It does so by

misinterpreting the IJ's findings as to the credibility and

reliability of the mother's testimony. Because this is such an

important issue, I quote the immigration judge's complete findings

as to the mother's testimony, who is referred to as Ms. Romero:

The court notes that Ms. Romero's testimony
was often unclear and contained numerous
inconsistencies as compared to her Application
for Asylum, especially with regard to the
reasons why she fled Honduras and her family's
involvement with the "Lincol" organization.
Those discrepancies contained in Ms. Del
Carmen Romero's testimony speak more to
whether Ms. Del Carmen Romero was credible in
her own Application for Asylum, rather than
whether the Respondent is credible, especially
since her testimony otherwise generally
corroborated the Respondent's testimony. As
the inconsistencies and discrepancies
contained in Ms. Del Carmen Romero's testimony
do not affect the heart of the Respondent's
asylum claim or his overall narrative of
"Hubert's" actions or the actions of the
"Maras," they therefore do not prompt a
negative credibility finding for the
Respondent.

The IJ here made findings on three separate credibility questions:

(1) the credibility of Romero as to her own asylum claim; (2) the

impact of Romero's inconsistencies on Celvyn's credibility; and (3)

the reliability of Romero's evidence as it related to the factual

basis of Celvyn's asylum claim. I take each in turn.

-52-
 First, the IJ found that Romero's testimony contained

inconsistencies between what she placed in her own written asylum

application, which was filed in 1996, and what she testified to

orally at Celvyn's asylum hearing in 2005. There is no question

that this is true. Romero, as she explained herself, attempted to

get work authorization papers after she arrived in the United

States. She paid a "notary public" named "Carolina" to fill out

papers on her behalf in English, papers that Romero could not read

and which were not read back to her in Spanish. Romero thought it

was a work permit application but in fact it was an asylum

application. The information "Carolina" put on the form was filled

with inaccuracies, as Romero freely admitted during oral testimony.

As the government pointed out later in cross-examination, this same

"Carolina" was arrested for immigration fraud at a later date.

Therefore, the IJ's comment that there were

inconsistencies between Romero's oral testimony at Celvyn's hearing

and her previously-adjudicated asylum application is absolutely

correct. However, the IJ rightly concluded that this bore solely

on Romero's credibility as related to her own asylum claim. And

because her own asylum claim had already been adjudicated years

prior and was in no way at issue in Celvyn's case, this was a

conclusion about a prior legal claim that had no legal relevance to

the present proceedings.

-53-
 Second, because the IJ found that Romero's testimony

"otherwise generally corroborated" Celvyn's testimony, he found that

the inconsistencies between her oral testimony at Celvyn's trial and

her admittedly inaccurate, previously-adjudicated asylum claim had

no negative impact on Celvyn's credibility. This, too, was a fair

conclusion, and one that bolsters Celvyn's claim.

Third, as to the reliability of Romero's testimony with

regard to Celvyn's asylum claim, the IJ plainly found her testimony

consistent with Celvyn's and therefore reliable. As the IJ said,

he found that her testimony "generally corroborated" Celvyn's

testimony. He also found that any inconsistencies between her

testimony at Celvyn's trial and her own asylum claim did not "affect

the heart of the Respondent's asylum claim or his overall

narrative." Thus, her testimony as related to Celvyn's claim is

rightly before this court for review.20

The majority asserts that "the IJ did not . . . make

explicit credibility findings regarding the mother's . . .

testimony." However, as I have shown, the text from the IJ's

20
As to the aunt's testimony, the IJ properly took into account
that the aunt failed to appear for cross-examination after her
initial testimony was taken. It is worth noting, however, that her
testimony as to the family's long-running political activism with
Lincol and the Liberal Party and the resulting violence was
consistent with Celvyn's testimony, Celvyn's mother's testimony,
and the extensive supporting evidence submitted in the case.

-54-
opinion plainly contradicts this contention.21 Because the majority

misreads the IJ's findings, it discounts the entirety of the

mother's testimony, leaving the child's oral testimony to stand

alone as the only oral testimony considered by the majority. The

majority erred in doing so, particularly given that Celvyn's age

imposed a duty on the court to broadly consult all available and

reliable evidence to understand his claim.22

21
The majority also concludes, without citation to the record,
that the IJ and BIA "implicitly rejected those portions of Mejilla-
Romero's mother's and aunt's narratives that indicated Hubert's
actions toward petitioner" were part of a broader political
dispute. This is simply not true and the majority can cite to
nothing in the record so suggesting. What the IJ and BIA did was
fail to consider the claim Celvyn actually put forth or review the
record as a whole regarding his claim. The IJ found that the
mother's testimony was generally consistent and reliable regarding
the heart of Celvyn's claim, yet her testimony was not considered.
Further, the record is otherwise replete with explanations of the
broader political context of the family's persecution, including
Celvyn's testimony and the extensive supporting documentation
presented by Celvyn. Yet neither the IJ nor the BIA drew on any of
this material evidence. In other words, the IJ and BIA did not
"implicitly reject" this evidence; they simply ignored it in its
entirety. Indeed, that is the crux of the problem in this case.
22
I also note that the majority tries a second tactic to
dismiss the mother's testimony. It argues that the mother was
"inconsistent" as to whether Lincol was the activist group with
which the family was aligned, or whether it was the group
persecuting the land activists. The breadth and depth of the
mother's testimony and affidavit, the aunt's testimony and
affidavit, and the significant supporting evidence from scholars
and other affiants shows that the family members were active Lincol
members and were persecuted on this ground. There were, however,
a few times in the mother's oral testimony where her answers were
translated so as to suggest that the family was persecuted by
Lincol, rather than because of membership in Lincol. However,
Celvyn's attorney objected on the record several times to just this
translation. As his lawyer explained, in Spanish the word "por"
means both "by" and "because of." Any inconsistencies in the
mother's testimony were the result of a translation error to which

-55-
2. Other Supporting Evidence

In addition to the mother's testimony, Celvyn also

presented unusually strong supporting evidence of his claim. These

documents include the following. (1) A written report from Dr.

Angela Radan, Cambridge Health Alliance, diagnosing Celvyn with PTSD

because of the specific traumatic events that form the basis of his

asylum claim.23 (2) An affidavit from a Honduran attorney with an

LLM from Harvard University and an expertise in Honduran human

rights. She lays out the history of land reform struggles in

Olancho province, the citizen groups like Lincol that engaged in

land invasions and were "met with violent resistance" by land-

holding families, supported by "local police and military

authorities," and the political violence spurred by the contest

between the Liberal and National parties.24 (3) An affidavit from

Mark Bonta, Professor of Geography at Delta State University, an

expert on land conflicts in Olancho province, who spent four years

in Olancho researching the political strife over land ownership in

the area. He details the history of the formation of the Lincol

Celvyn's attorney objected. The majority ought not rely on a few
instances of objected-to translation errors as a basis for
dismissing the mother's testimony, particularly where the asylum
applicant is a minor and cannot himself adequately explain why he
was harmed.
23
The government waived its right to cross-examine Dr. Radan,
leaving her affidavit uncontested in the record.
24
The government also waived cross-examination as to this
affiant, leaving her affidavit uncontested in the record.

-56-
group in the 1970s, the death of the group's founder Lincoln Coleman

in the Horcones/Santa Clara massacre in 1975, the on-going political

dispute over land in Olancho between peasants and landowners, backed

by the military, and the violent political repression inflicted on

activists because of their work for land reform.25 (4) Supporting

documentation about the Horcones/Santa Clara massacre. (5) Celvyn's

affidavit, which recounts in age-appropriate terms that his family

had long-running problems with wealthy neighbors related to land

issues and politics. (6) The affidavit of Celvyn's mother,

detailing the family's political activism with Lincol and the

resulting violence they experienced. (7) A supplemental affidavit

from Celvyn's mother declaring that Celvyn's grandmother had been

located after four years in hiding, that she had returned to her

home in Arimis, was very ill, and was fearful for her life because

her wealthy neighbors were opposed to her return. (8) A 1996 death

certificate for Celvyn's uncle indicating that he was killed by a

machete wound, and a criminal indictment issued for Saul Gregorio

("Godo") Mejia for the murder. (9) Affidavits from Erin Scheick,26

a scholar with expertise in gang recruitment and violence in

Honduras, and Gustavo Zelaya, legal counsel for Casa Alianza, the

25
Celvyn made a written motion to allow telephonic testimony
from Professor Bonta. It appears from the record that the IJ never
decided the motion.
26
The government waived cross-examination as to this affiant
as well.

-57-
leading advocacy organization for street children in Honduras,

discussing the risks Celvyn faces if he is returned to Honduras.

The IJ's opinion fails to review the content of this

evidence,27 and the BIA, in its cursory two-page opinion, neither

mentions nor considers any of the above evidence. The majority

attempts to remedy the administrative courts' failure to consider

the record as a whole by making some attempt to reference this

material. But mere citation is a far cry from analysis. Further,

the majority dismisses the relevance of important portions of

Celvyn's supporting evidence merely because Celvyn's oral testimony

did not refer to the same material.28

D. Celvyn's Eligibility for Asylum

1. The Past Persecution Claim

27
The IJ does list all of the exhibits entered into evidence,
and briefly mentions that the supporting evidence "bolster[s] the
credibility of [Celvyn's] testimony." But the IJ does not discuss
the content of the evidence as it relates to the factual basis of
Celvyn's past persecution claim, as the appended portion of the
IJ's decision shows.
28
For example, the majority dismisses the relevance of Celvyn's
affidavit because Celvyn "did not mention these events in his
subsequent testimony before the IJ and indeed testified that he did
not know why Hubert threw stones at him or did not like his
grandmother." (emphasis added). Here, again, the majority takes
Celvyn's inherent disability, namely his age-related difficulty in
explaining orally the trauma he endured and the political reasons
for it, and uses that as an excuse to dismiss other forms of
evidence, rather than as a reason to give particular care and
consideration to his supporting forms of proof. In other words,
the majority uses Celvyn's disability to exclude rather than
include additional evidence, which turns the rule governing the
consideration of juvenile asylum applications on its head.

-58-
 In contrast to the majority, I conclude from my review of

the record that there is not substantial evidence to support the

lower courts' conclusion that Celvyn did not suffer past persecution

on account of imputed political opinion. More than that, I believe

the record compels the opposite conclusion and that substantial

evidence supports the conclusion that Celvyn suffered past

persecution and has otherwise met his asylum burden. See I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) ("To reverse the BIA

finding we must find that the evidence not only supports that

conclusion, but compels it."); Bellido v. Ashcroft, 367 F.3d 840,

846 (8th Cir. 2004) (reversing BIA's denial of asylum, finding

substantial evidence support for granting asylum, and remanding for

proceedings consistent with opinion); Osorio v. I.N.S., 18 F.3d

1017, 1023, 1033 (2d Cir. 1994) (reversing BIA denial of asylum,

finding that applicant has met his burden in "demonstrating

eligibility for political asylum," and ordering grant of asylum and

withholding of deportation).

There is no doubt that Celvyn's family was deeply engaged

in advocating for land reform for several decades in their

community, and that this activism led to severe reprisals, including

several assassinations of family members. Celvyn found himself

living with the family's elderly matriarch, who was an active and

visible political activist, and as a result Celvyn suffered the same

persecution that his many family members had, merely because of a

-59-
political opinion imputed to him. See Vasquez v. I.N.S., 177 F.3d

62, 65 (1st Cir. 1999) ("An imputed political opinion, whether

correctly or incorrectly attributed, may constitute a reason for

political persecution within the meaning of the [Immigration and

Nationality] Act.") (quoting Ravindran v. I.N.S., 976 F.2d 754, 760

(1st Cir. 1992)); Mema v. Gonzalez, 474 F.3d 412, 417 (7th Cir.

2007) ("[A]sylum is available to persons who have been persecuted

based on imputed political opinion, including situations where a

persecutor attributes the political opinion of one or more family

members to the asylum applicant.") (emphasis in original); Ananeh-

Firempong v. I.N.S., 766 F.2d 621, 627 (1st Cir. 1985) (same).

As the Justice Department has concluded, a child's claim

of past persecution can "be based on imputed political opinion."

See "1998 DOJ Memo," available at 1998 WL 34032561. In fact, the

Department advises that an "adjudicator should carefully review the

family history of the child" where the child claims persecution on

account of an imputed political opinion. Id. (emphasis added).

That is precisely the review that was lacking in this case.

In addition, unlike the majority, I believe the threats

and violence that Celvyn experienced on account of an imputed

political opinion rose to the level of persecution. Celvyn, who was

a young child in elementary school at the time, was physically

assaulted on two occasions by a man wielding a machete. The record

shows that he bears the physical and psychological wounds of that

-60-
violence to this day. Such brutal attacks on a very young child,

whose only protection was his elderly grandmother, obviously rise

well above our requirement that the harm "add up to more than mere

discomfiture, unpleasantness, harassment, or unfair treatment."

Nikijuluw v. Gonzalez, 427 F.3d 115, 120 (1st Cir. 2005). By the

time his grandmother decided to send him out of Honduras, Celvyn had

become a prisoner in his own home, unable to go outside or attend

school for fear of further violence. That he was merely eleven at

the time only heightens the conclusion that this boy suffered

tremendous persecution for imputed beliefs that, quite tragically,

he did not even understand.

Further, Celvyn's claim easily meets the requirement that

the harm be the direct result of "government action, government-

supported action, or government's unwillingness or inability to

control private conduct." Nikijuluw, 427 F.3d at 121. The record

evidence shows that the local police and government were strongly

supportive of the land-owning elite who persecuted Celvyn's family

for decades, and that Celvyn's step-grandfather's murder was carried

out by government soldiers. Moreover, the family reported the 1996

murder of Celvyn's uncle, but the authorities took no steps to

arrest the perpetrator. The 1999 Country Report confirmed the

existence of large-scale, land-owner vigilante groups in Olancho

that apparently operated with impunity. All these facts led the

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family to reasonably conclude that the authorities had not in the

past and would not in the future protect them.29

2. Well-Founded Fear of Future Persecution

Because in my view Celvyn has established that the

evidence compels the conclusion that he suffered past persecution

on account of imputed political opinion, he is entitled to the

presumption that he has a well-founded fear of future persecution.

That presumption can only be rebutted by a showing, by a

preponderance, that changed circumstances have rendered the fear of

future persecution moot or that by relocating to another part of the

country the applicant can avoid future persecution. See 8 CFR §

1208.13(b)(1)(i). Only the second showing is at issue here.

The legal standard on relocation is not a hypothetical

one, but one rooted in the realities of the applicant's situation

and the extant country conditions. The regulations provide that the

presumption of a well-founded fear is rebutted if "[t]he applicant

29
The majority's assertion that Celvyn did not "present any
evidence that the Honduran government was unwilling to prosecute
his assailants," is not supported by a review of the record as a
whole. In addition, where there is evidence, as in this case, that
the governing authorities are complicit in the persecution and have
failed to provide protection in the past, there is no requirement
that the applicant have reported further incidents of harm to those
very same authorities. See, e.g., In re S-A-, 22 I & N Dec. 1328,
1335 (BIA 2000) ("[T]he evidence convinces us that even if the
respondent had turned to the government for help, Moroccan
authorities would have been unable or unwilling to control her
father's conduct."). Indeed, a reporting requirement would exclude
many of the most deserving asylum applications because it is common
sense not to report persecution to government officials who one has
reason to believe are cooperating with the persecutors.

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could avoid future persecution by relocating to another part of the

applicant's country of nationality . . . and under all the

circumstances, it would be reasonable to expect the applicant to do

so." 8 CFR 208.13(b)(i)(B) (emphasis added). In Celvyn's case,

such a conclusion is simply not reasonable.

Celvyn is still a child. If he returns to Honduras he has

only two family members with whom he could conceivably live, his

grandmother and his father. It is unreasonable to expect Celvyn to

relocate with his father because, as discussed above, he has never

cared for Celvyn, and there is no reason to believe he would today.

It is equally unreasonable to expect his elderly, ill grandmother

to relocate with Celvyn to another part of the country. Given that

he has no other means, if Celvyn cannot live with either of these

adults, it is almost a foregone conclusion that he would live on the

street somewhere in Honduras. Further, the record is clear about

the tremendous problems facing street children in Honduras,

including persecution by the police.

3. Humanitarian Exceptions

However, even if relocation were found to be reasonable,

I believe Celvyn qualifies for humanitarian protection. Celvyn has

both (a) demonstrated a compelling reason for being unwilling or

unable to return to his country arising out of the severity of the

past persecution, and (2) has established a reasonable possibility

that he may suffer other serious harm upon removal to Honduras. See

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8 CFR § 1208.13(b)(1)(iii); see also In re Matter of Chen, 20 I. &

N. Dec. 16, 19 (BIA 1989); Lal v. I.N.S., 255 F.3d 998, 1009 (9th

Cir. 2001) ("The Matter of Chen exception is an expression of

humanitarian considerations that sometimes past persecution is so

horrific that the march of time and the ebb and flow of political

tides cannot efface the fear in the mind of the persecuted.");

Sheriff v. Att'y Gen., 587 F.3d 584, 593 n.6 (3d Cir. 2009) (noting

that Matter of Chen involved persecution of an eight-year-old boy

on account of his father's religious activities).

As for the first ground, Celvyn is a child who suffers

post traumatic stress disorder caused by the extreme violence he

experienced in Honduras, and his family lives in the United States.

He has presented a compelling reason, rooted in the severity of the

past persecution, not to be returned to Honduras. As to the second

ground, Celvyn has demonstrated a reasonable possibility that he

would suffer other serious harm were he returned to Honduras because

he would likely live alone on the streets of Honduras, subject to

well-documented abuses and gang recruitment. His mental illness and

lack of family would make him especially vulnerable. In sum, even

if the presumption of a well-founded fear were rebutted, Celvyn's

case is just the type for which these humanitarian exceptions were

created.

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 III. Conclusion

In this case, the IJ and BIA failed to issue a merits

decision on the claim put forth by Celvyn, which requires, at

minimum, a remand. In addition, on the merits, the IJ, the BIA, and

the majority have discounted the vast majority of Celvyn's

supporting evidence, limiting themselves to the simple oral

testimony of a child of thirteen recounting events that occurred

when he was between five and eleven years of age. Because Celvyn's

claim is based on imputed political opinion due to his family's

political activism, a review of his family history was necessary.

It was incumbent on this court, and those below, to examine the

record as a whole to understand the factual basis of his claim. Of

course, we are required to review the entire record in all cases,

but that is particularly true in a case involving a minor.

When all is said and done, the majority essentially relies

on our standard of review in order to affirm the decisions below.

The argument is basically that our hands are tied, regardless of how

unfortunate this young child's experiences may have been. However,

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. In my view, this court has allowed the standard of review

in asylum cases to become an ever more impermeable barrier to any

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meaningful appellate review.30 Quoting from Judge Carnes on the

Eleventh Circuit:

The majority opinion refers to the
often-mentioned, but never sighted, "rare case"
in which the facts are so compelling that we
will reverse an immigration judge's finding that
a petitioner has failed to prove persecution on
a protected ground. . . . [T]oday's decision
indicates that such a case, like the fabled
unicorn, exists only in our imagination.

Silva v. U.S. Att'y Gen., 448 F.3d 1229, 1248-49 (11th Cir. 2006)

(Carnes, J., dissenting). I therefore dissent.

30
It is instructive to review data from the Department of
Justice, Executive Office for Immigration Review, which shows that
this circuit is among the least likely to reverse a decision of the
BIA. For example, in 2006, the average reversal rate for all
circuits was 17.5%, while the First Circuit reversed in just 7.1%
of cases, making it the third least likely circuit to reverse. See
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%20Vol%202/vol2n
o1.pdf. In 2007, the average reversal rate for all circuits was
15.3%, while the First Circuit reversed in only 3.8% of cases,
placing it dead last. Id. In 2008, the average reversal rate for
all circuits was 12.6%, while the First Circuit reversed in just
4.2% of cases, placing it second from the bottom. See
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no1.
pdf. For the first ten months of 2009, the average reversal rate
was 11.5%, while the First Circuit reversed in 4.8% of cases,
making it the fourth least likely circuit to reverse. See
http://www.justice.gov/eoir/vll/ILA-Newsleter/ILA%202009/vol3no11
.pdf.

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 APPENDIX

DECISION OF THE IMMIGRATION JUDGE

. . . .

3. Past Persecution

The events as recounted by the Respondent do not establish

that he was persecuted in the past. The Respondent testified that

"Hubert," his former neighbor in Honduras, destroyed his

grandmother's home and windows with a machete, frequently called him

a "Communist," threw stones at him, and on one occasion, hit him in

the leg with a machete. The Respondent also testified that he had

difficulties with "Maras," gangs of fifteen year old boys from the

neighboring village, when they pushed him and attempted to steal his

money. At one point, these boys also threw the Respondent from a

small house, causing him to become entangled in a wire.

Behaviors that an adult may not typically associate with

persecution or serious harm may produce lasting damage or physical

or psychological trauma in a child and thus constitute persecution.

See Civil v. INS, 140 F.3d 52, 62-63 (1st Cir. 1998) (dissenting

opinion). However, after a careful review of the Record of

Proceedings (and bearing in mind the Respondent's age at the time

these events occurred), the Court concludes that the Respondent did

not suffer from past persecution. While these events were, without

a doubt, troubling, they amount to no more than a series of isolated

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altercations with a disgruntled neighbor and with a group of boys

who bullied younger children into providing them with money. See

Awad, 463 F.3d at 76 (harassment and bullying does not amount to

persecution). There is no evidence in the Record of Proceedings

that the Respondent was ever physically punished for possessing a

belief or characteristic that others sought to overcome. Nor is

there any evidence that encounters with "Hubert" or the "Maras" --

and not, perhaps, the difficulties involved in traveling

unaccompanied to the United States -- caused the Respondent such

lasting psychological trauma so as to rise to the level of past

persecution. Cf. Exhibit 6 (psychological evaluation diagnosing the

Respondent with Post-Traumatic Stress Disorder). Accordingly, this

Court finds that the Respondent did not suffer past persecution.

. . . .

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