Chitay-Pirir v. I.N.S., CHITAY-PIRI
| Citation | 169 F.3d 1079 |
| Decision Date | 10 March 1999 |
| Docket Number | No. 98-3072,P,CHITAY-PIRI,98-3072 |
| Parties | Bernabeetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Susan A. Swingle (argued), Winston & Strawn, Chicago, IL, for Petitioner.
Samuel Der-Yeghiayan, I.N.S., Chicago, IL, for Respondent.
Before EASTERBROOK, MANION, and EVANS, Circuit Judges.
Bernabe Chitay-Pirir, a citizen of Guatemala, entered the United States in 1996 "without inspection"--meaning that he stole across the Mexican border. He was caught and has been in the custody of the Immigration and Naturalization Service ever since, awaiting deportation. To avoid being returned to Guatemala, Chitay-Pirir filed an application for asylum. He made a plausible case. Between 1960 and the end of 1996 a civil war raged in Guatemala. Guerrillas under the banner of the Unidad Revolucionario Nacional Guatemalteco (URNG) opposed a succession of autocratic regimes. Terrorism was practiced on both sides. Amerindians in the highland provinces of Guatemala (a group that includes Chitay-Pirir), many of whom speak languages descended from Mayan rather than Spanish, tended to side with the guerrillas; assisted by paramilitary death squads, the government attempted to suppress the insurrection and did very little to promote the rule of law. Chitay-Pirir told the immigration judge that death squads had murdered his father and uncle (both of whom took the URNG side) and one of his cousins (another URNG sympathizer). At the age of 13 Chitay-Pirir himself joined the guerrillas. Although he deserted after three months, the local "civil defense patrol" (the polite name for a death squad) knew what he had done. To terrorize his family it forced Chitay-Pirir's brother to watch the execution of his cousin. Fearing for his own life, Chitay-Pirir went into hiding in Guatemala City, and the "civil defense patrol" transmitted through his family the threat of death should he reveal who had killed his cousin. The immigration judge credited this story but found that it did not establish either a history of political persecution (no one harmed Chitay-Pirir himself) or a prospect of future persecution. The Board of Immigration Appeals affirmed.
When he entered the United States, Chitay-Pirir was only 15 years old. He was 16 by the time of the hearing and is now 18. Chitay-Pirir asked the BIA to appoint (or secure the appointment of) a guardian ad litem to take charge of his interests. The Board declined, observing that "respondent was not in the middle of a custody dispute; he was represented by counsel and living with an adult relative". He was indeed represented by counsel, but the Board's belief that he was "living with an adult relative" is a figment of its imagination; he had been in the custody of the INS (not exactly his "adult relative") since 1996. Still, he did have an attorney and had ample opportunity to obtain other help. He was housed in a contract detention facility operated by Travelers and Immigrants Aid, which works with the Midwest Immigrant Rights Center to present claims to the INS, and these organizations have afforded substantial pro bono assistance to Chitay-Pirir.
An amicus curiae that has filed a brief to advocate the routine appointment of guardians for minor aliens tells us that a guardian might have found a social worker who might have been able to develop a friendship with Chitay-Pirir, who then might have provided additional helpful details, but this is all speculation--too many "might have beens" to offset the difficulties that having two adult representatives (both guardian and lawyer) could have caused, if they disagreed with each other about how to proceed. We grant that youngsters are unlikely to understand the details of the asylum process (or how immigration officials will react to their narratives), and that some youthful applicants for asylum may be so traumatized by what happened in their native lands that they will be unable to assist their lawyers without professional help from outside the bar. But when that is so, the lawyer should see to it that help is obtained--and Chitay-Pirir has indeed had the benefit of a psychological evaluation. Other applicants, less well supplied with professional assistance than was Chitay-Pirir, have more to gain from a guardian or some other source of adult help. But Chitay-Pirir cannot complain about this aspect of the way the INS handled his claim, see Calero v. INS, 957 F.2d 50 (2d Cir.1992), and it is therefore unnecessary for us to decide when, if at all, ...
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