Ordonez-Quino v. Holder

• Decision Date: 23 July 2014
• Docket Number: No. 13–1215.,13–1215.
• Citation: 760 F.3d 80
• Parties: Manuel ORDONEZ–QUINO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

760 F.3d 80

Manuel ORDONEZ–QUINO, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 13–1215.

United States Court of Appeals, First Circuit.

July 23, 2014.

Nancy J. Kelly, John Willshire Carrera, and Harvard Immigration & Refugee Clinic, on brief for Petitioner.

Dara S. Smith, Trial Attorney, Office of Immigration Litigation, Stuart F. Delery, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, Office of Immigration Litigation, on brief for Respondent.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner Manuel Ordonez–Quino seeks review of a Board of Immigration Appeals' (“BIA”) decision affirming an Immigration Judge's (“IJ”) denial of his requests for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. Among other things, he says the BIA's and IJ's determinations that he did not demonstrate past persecution on account of a protected ground were not supported by substantial evidence. Because we agree, we grant his petition and remand for further proceedings.

I. Facts

We take the facts primarily from Ordonez–Quino's affidavit and testimony before the IJ, who found him credible, supplementing with some history for context. See Ayala v. Holder, 683 F.3d 15, 16 (1st Cir.2012).

Ordonez–Quino was born in Zacualpa, Department of Quiché, Guatemala, on December 4, 1974. He is an indigenous Mayan Quiché. His native language is Quiché; he speaks very little Spanish.

Ordonez–Quino grew up during the most violent period of the brutal civil war that ravaged Guatemala from 1962 through 1996. In his affidavit and testimony, he related haunting childhood memories of the Guatemalan military's attacks on his family and their community. He said the Guatemalan government singled them out for persecution because of their indigenous race and ethnicity, their real and imputed political opinions, and their membership in various social groups. During the attacks, he said, the military “shot at us, bombed us, destroyed our homes[,] and killed our people. I witnesse[d] many terrible things.”

In 1980, during one such attack, a military helicopter dropped a bomb next to Ordonez–Quino and his father. Ordonez–Quino was only five or six years old. His father was trying to carry him to safety in the surrounding mountains when the nearby explosion knocked Ordonez–Quino to the ground. His father scooped him back up and ran into hiding, but the damage was done. Either as a result of the explosion or the fall, Ordonez–Quino suffered a severe illness, experiencing high fevers and extreme headaches for days. Because soldiers controlled the area, his parents could not seek medical attention and instead applied traditional remedies. Due to his injuries, Ordonez–Quino ultimately became almost completely deaf in both ears.

From that time forward, Ordonez–Quino's hearing loss affected him deeply. Because he could not hear, he lost his ability to speak clearly. It was difficult for him to communicate and develop relationships. He struggled to learn at the same pace as his peers. He was more vulnerable to violence because he could not hear the onset of military raids.

In the years that followed, soldiers continued to victimize Ordonez–Quino's community. At some point, his family's home and lands were destroyed. To survive, they went to work at a farm on the coast of Guatemala. They all “worked very hard and lived very hard lives,” but Ordonez–Quino suffered more because he could not understand Spanish or hear what his supervisors yelled at him. He says he “live[d] in constant anxiety and fear.”

Some time later, Ordonez–Quino went to work in the textile mills in Guatemala City, where he was often mistreated because he could not hear or understand Spanish. During this period, his parents helped him arrange a marriage to a Quiché woman from his hometown. They later had a daughter together.

While he was in Guatemala City, Ordonez–Quino reports that he was repeatedly targeted by racist gangs because of his Quiché ethnicity. Again, his inability to hear or to understand Spanish put him in greater danger because he could not hear the gangs' threats or detect their approach.

Ordonez–Quino left Guatemala City after a violent gang attack in 2005, when gang members “started beating [him] as if they were going to kill [him].” While fleeing the gang, he ran into a barbed wire fence, causing permanent scars to his head and arm.

Fearing that he might not be able to escape if he were attacked again, Ordonez–Quino returned briefly to his hometown where he hid in his family's home. He came to the United States soon after because his family warned him it was not safe to stay in Guatemala. Today, his family tells him not to return to Guatemala due to ongoing violence against the Mayan Quiché community.

II. Administrative Proceedings

Ordonez–Quino entered the United States through Mexico without inspection in July 2005. He made his way to Providence, Rhode Island to live with family members, and he found work at the Michael Bianco factory in New Bedford, Massachusetts.

On March 6, 2007, U.S. Immigration and Customs Enforcement raided the factory and detained Ordonez–Quino, along with over 300 other workers. The next day, the government issued a Notice to Appear, charging Ordonez–Quino with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien who had entered the United States without inspection or parole.¹

On October 4, 2010, Ordonez–Quino appeared before an IJ in Boston, Massachusetts, seeking (1) asylum pursuant to 8 U.S.C. § 1158; (2) withholding of removal pursuant to 8 U.S.C. § 1231(b)(3); and (3) protection under the Convention Against Torture pursuant to 8 C.F.R. §§ 1208.16–18. Ordonez–Quino had great difficulty testifying because he could not hear his attorney's or the IJ's questions well, despite the assistance of a hearing aid.²

In addition to his testimony and personal affidavit, Ordonez–Quino submitted the following materials to the IJ: the testimony and affidavit of a doctor verifying Ordonez–Quino's hearing impairment and noting his improvement with a hearing aid; the report of Guatemala's Commission for Historical Clarification (“Historical Clarification Report” or the “Report”), which, inter alia, found that the Guatemalan military committed acts of genocide against indigenous Guatemalans in several regions—including Ordonez–Quino's hometown of Zacualpa—during the Guatemalan Civil War; ³ decisions by the U.S. Courts of Appeals for the Second and Ninth Circuits addressing asylum claims brought by indigenous Guatemalans; ⁴ several documents describing ongoing discrimination against Mayans in Guatemala; numerous reports and articles issued by the U.S. State Department and prominent human rights organizations detailing the history of violence and recent human rights violations against Mayans in Guatemala; and several documents about gang violence in Guatemala.

After the hearing, the IJ denied Ordonez–Quino's requests for relief and ordered him removed. Though the IJ found Ordonez–Quino's testimony credible and excused his failure to seek asylum before the one-year filing deadline, ⁵ the IJ concluded that Ordonez–Quino did not qualify for asylum because he had not demonstrated past persecution or a well-founded fear of future persecution on account of a protected ground.

As for past persecution, the IJ found that the Guatemalan military attacked Ordonez–Quino's community during the war because they thought there were guerrillas within or nearby, not because the community was Mayan Quiché. While the IJ acknowledged that racism may have informed the military's beliefs about the community, he said racism itself was not the reason for bombing in or near the villages, and “[t]he purpose of the bombing was not to destroy the Mayan Quich[é] community.” The IJ further found no evidence that Ordonez–Quino was later accosted by gangs because of his Mayan Quiché identity. Accordingly, the IJ held that Ordonez–Quino had not established the required nexus between the past harm he suffered and a protected ground.

As for fear of future persecution, while the IJ acknowledged that the Mayan Quiché population continues to suffer pervasive discrimination in Guatemala, he found that their present mistreatment does not rise to the level of persecution. Moreover, though Ordonez–Quino might fear further violence, the IJ said he had not shown he would be targeted by gangs or others in the future on account of a protected ground. In fact, family members who share his protected traits are living in Guatemala safely.

Accordingly, the IJ held that Ordonez–Quino was not eligible for asylum. He likewise found that Ordonez–Quino was not eligible for relief under the more stringent “clear probability of persecution” standard for withholding of removal, or for protection under the Convention Against Torture.

Ordonez–Quino appealed the IJ's decision to the BIA. He challenged the IJ's finding of no nexus between the past harm he suffered and a protected ground, and he argued he was eligible for asylum based both on past persecution and a well-founded fear of future persecution. He also expressly requested a discretionary grant of humanitarian asylum based on the severity of the past persecution he had experienced and the serious harm he would suffer if returned to Guatemala, in case the BIA found that changed circumstances in Guatemala undercut the reasonableness of his fear of future persecution.

On January 10, 2013, the BIA affirmed the IJ's decision in a brief opinion. First, the BIA agreed that Ordonez–Quino had not established a sufficient link between the past harms he suffered and a protected ground to qualify for asylum. Second, it found that the harms Ordonez–Quino said he experienced in the past did not amount to persecution. Third, the BIA said that even if Ordonez–Quino had established past persecution on...