Mejilla-Romero v. Holder

• Decision Date: 06 April 2010
• Docket Number: No. 08-2336.,08-2336.
• Citation: 600 F.3d 63
• Parties: Selvin Asael MEJILLA-ROMERO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

600 F.3d 63

Selvin Asael MEJILLA-ROMERO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-2336.

United States Court of Appeals, First Circuit.

Submitted November 10, 2009.

Decided April 6, 2010.

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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.

Before LYNCH, Chief Judge, SELYA and STAHL, Circuit Judges.

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 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 "communists" and said, as an attack on the family, that they were "people 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 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 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 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 "made 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 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 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...