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.
Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.
ORDER OF COURT
Entered: August 6, 2010
On April 6, 2010, a panel of this court, with one judge dissenting, issued a decision
denying the petition for review. Mejilla-Romero v. Holder, 600 F.3d 63 (1st Cir. 2010).
Thereafter petitioner sought panel and en banc rehearing, arguing, inter alia, that the
Board of Immigration Appeals ("BIA") decision had not complied with the Department of
Homeland Security's Guidelines for Children's Asylum Claims (1998) and the Guidelines for
Immigration Court Cases Involving Unaccompanied Alien Children (2004). These Guidelines in
turn are informed by the United Nations High Commissioner for Refugees's ("UNHCR")
Guidelines on Policies and Procedures in Dealing with Unaccompanied Minors Seeking Asylum
(1997), and decisions based on those guidelines. Petitioner was supported by two briefs amici
curiae from (1) the UNHCR and (2) the Center for Gender & Refugee Studies, Immigrant Child
Advocacy Project, National Immigrant Justice Center, Tahirih Justice Center, Professor Deborah
Anker, Professor Rebecca Sharpless, and Professor David B. Thronson. The respondent has
opposed rehearing.
Petitioner raised arguments regarding the Guidelines' child-sensitive approach in his brief
to the BIA and in his Memorandum of Law to the Immigration Judge ("IJ"). However, neither
the BIA nor the IJ explicitly addressed the arguments in their decisions. That was one of the
main arguments presented in the petition for rehearing. Petitioner also claimed that because of
the failure to follow the Guidelines the evidence submitted in support of his asylum claim was
not properly considered. Since petitioner's claims may implicate important issues of law and
policy, we are of the view that these arguments should be considered by the administrative courts
in the first instance.
Accordingly, we vacate both the panel opinion and the BIA's decision and we remand this
case to the BIA. The BIA should undertake de novo consideration of petitioner's arguments and
re-evaluate the record in their light. The parties should be given an opportunity for further
briefing on these issues, including briefing with further specificity which guidelines are claimed
to have been transgressed. The BIA should also consider a remand to an IJ, in order that the IJ
can evaluate the testimony and supporting evidence in light of the Guidelines' standards
regarding child asylum seekers.
The clerk of court shall provide to the BIA a copy of all filings as to the petition for
rehearing. We do not retain jurisdiction and anticipate that the BIA and/or the IJ will issue a new
decision.
So ordered.
cc:
Nancy Jean Kelly
John Edward Willshire
LaTia N. Bing
John W. Blakeley
William Clark Minick
Carmel Aileen Morgan
Deborah Anker
Eunice Lee
Kaitlin Kalna Darwal
Pamela R. Goldberg
Katie S. Hyman
Steven H. Schulman
Michael C. Small