Santos-Guaman v. Sessions, 16-2204

• Decision Date: 23 May 2018
• Docket Number: No. 16-2204,16-2204
• Citation: 891 F.3d 12
• Parties: Manuel SANTOS-GUAMAN, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

891 F.3d 12

Manuel SANTOS-GUAMAN, Petitioner,

v.Jefferson B. SESSIONS III,^* Attorney General of the United States, Respondent.

No. 16-2204

United States Court of Appeals, First Circuit.

May 23, 2018

Kevin MacMurray and MacMurray & Associates, on brief for petitioner.

Virginia L. Gordon, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Leslie McKay, Senior Litigation Counsel, on brief for respondent.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioner, Manuel Santos Guaman (Santos Guaman), seeks judicial review of a decision of the Board of Immigration Appeals (BIA) denying his asylum application.¹ Santos Guaman argues that the BIA erred when concluding that he had not suffered past persecution nor had a well-founded fear of future persecution if he returned to Ecuador on account of his indigenous Quiché ethnicity. Before delving into his appeal, we will take a look back at Santos Guaman's childhood in Ecuador, what led him to come to the United States, and then ultimately what brought him before this Court.

BACKGROUND²

Santos Guaman was born in Angus Gran Jesús, Ecuador, in 1986. He is of indigenous descent and speaks Quichua—his native language. Santos Guaman enrolled in school at the age of five; there, he wore traditional Quiché clothing and long hair. While in school, Santos Guaman endured a great deal of abuse, discrimination, and harassment. At recess, students chased him, punched him, stabbed him with pencils, threw stones at him, tried to whip him with electrical cords, and would "sometimes pull a bunch of hair ... out of [his] head." His teachers, in the meantime, blamed him for (and participated in) the abuse, whipping him with a plastic cable on the hands, forcing him to stand "with [his] hands on the wall for long periods of time" and keeping him from eating lunch. The teachers made fun of him for not speaking Spanish and, like the students, did not countenance the traditional Quiché clothing he wore. They also punished him after observing the mistreatment he suffered—claiming it was his fault because he did not speak Spanish. Due to the abuse he was suffering, after completing just two years of studies, he abandoned school.

After dropping out at age 7, Santos sought work in his hometown and four other villages in an attempt to escape the ongoing mistreatment. Over the years, he worked as a bricklayer and a farmer. At different jobs, his bosses refused to pay him his full wage, and, along with his coworkers, harassed him for being Quiché. They also hurled threats of physical harm at him constantly.

Wanting to escape this abuse, at the age of 16³ Santos Guaman decided to come to the United States. In January 2003, he entered through the Mexico-California border without inspection. Sometime after crossing the border, Santos Guaman traveled to Massachusetts where he took up residency. It appears he did not come to the immigration authorities' radar until 2008 following a prosecution of a charge of operating a motor vehicle while under the influence in Massachusetts District Court.⁴ In December 2010, the Department of Homeland Security issued a Notice to Appear alleging Santos Guaman was removable from the United States pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (establishing removability for an alien who entered the United States without inspection or parole). Santos Guaman admitted the truth of the allegations and conceded removability, but applied for asylum relief on the basis of his race, political opinion, and membership in a particular social group.

At his asylum hearing before the Immigration Judge (IJ), in addition to his own testimony and affidavit outlining the treatment he endured in Ecuador as a child, Santos Guaman submitted an affidavit from his psychologist, Kaye Cook, Ph.D., which outlined the doctor's clinical assessment of Santos Guaman and diagnosis of major depression

with anxious features.⁵ Dr. Cook linked Santos Guaman's diagnosis to the harassment and abuse he suffered as a child. Specifically, Dr. Cook reported that even after Santos Guaman arrived in the United States, "he had nightmares about bad people in Ecuador who were coming after him. He was terrified to go out and avoided dark places because he was so scared ... that he could not function." The events he suffered in Ecuador were "extremely psychologically disruptive."

In a bench decision, the IJ relied on Dr. Cook's affidavit to find that Santos Guaman was entitled to an exception to the one-year filing requirement for asylum applications (remember, Santos Guaman arrived in the United States in 2003 and only filed his asylum application in 2012 after removal proceedings had been initiated against him). The IJ found Santos Guaman's account of the mistreatment he suffered as a child to be credible, but nevertheless found that the discrimination did not rise to the level of persecution. The IJ noted that the Ecuadorian government was seeking to remedy the harm caused to indigenous communities, and that the Ecuadorian Constitution provides protections to indigenous persons. According to the IJ, because the Ecuadorian government was "making efforts to ease the discrimination of the indigenous people[,] ... [a]t the very least [the government] cannot be accused of supporting the discrimination." The IJ explained that while discrimination against indigenous communities in Ecuador was still prevalent, it was "not so pervasive and intolerable and either government directed or condoned as to be tantamount to persecution." For these reasons, the IJ denied Santos Guaman's asylum application and held that he had not established past persecution or a well-founded fear of future persecution. The IJ ordered him removed.

Santos Guaman appealed to the BIA, where the IJ's decision denying him asylum was affirmed. In its review, the BIA too acknowledged that Santos Guaman had endured a level of discrimination and bullying due to his indigenous background but ultimately held, as had the IJ, that the level of discrimination did "not rise to the level of past persecution" for asylum purposes. The BIA concluded that because Santos Guaman could not establish past persecution, he also could not avail himself of the presumption of future persecution (more on this to follow); and that he ultimately could not carry the burden of establishing the likelihood of future persecution as well. The BIA noted that evidence of the country conditions, while depicting that the indigenous community was discriminated against, also established that the community was granted the same civil and political rights as any citizen and received additional protection from the Ecuadorian Constitution. Therefore, the BIA also concluded Santos Guaman could not establish a well-founded fear of future persecution were he to return to Ecuador.

This appeal ensued. Jurisdiction of this Court is pursuant to 8 U.S.C. § 1252.

DISCUSSION

On appeal, Santos Guaman's argument is two-fold. First, he argues that both the IJ and BIA erred in concluding that he had not suffered past persecution in Ecuador. Second, he argues that they again erred when they concluded that he had not established a well-founded fear of future persecution on account of a protected ground (his being Quiché). We remand on the first issue raised by Santos Guaman.

Standard of Review

Where the BIA "adopts portions of the IJ's findings while adding its own gloss," as is the case here, "we review both the IJ's and the BIA's decisions as a unit." Paiz-Morales v. Lynch, 795 F.3d 238, 242 (1st Cir. 2015) (internal quotation marks omitted) (quoting Renaut v. Lynch, 791 F.3d 163, 166 (1st Cir. 2015) ). We apply a substantial evidence standard to administrative findings of fact, and will accept them "as long as they are supported by reasonable, substantial and probative evidence on the record considered as a whole." Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014) (internal quotation marks and citation omitted). "[W]e will reverse only if the record is such as to compel a reasonable factfinder to reach a contrary determination." Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012) ; see also Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013).

Therefore, our review "is limited to determining whether substantial evidence in the administrative record supports the IJ's [and BIA's] findings that [Santos Guaman] neither suffered from cognizable past persecution nor demonstrated a well-founded fear of future persecution." Lumaj v. Gonzales, 446 F.3d 194, 198 (1st Cir. 2006). However, we review questions of law, including whether the IJ and BIA applied the correct legal standard, de novo. Ahmed v. Holder, 765 F.3d 96, 99 (1st Cir. 2014).

Asylum

To begin, let's take a look at the legal framework asylum seekers need to navigate to qualify for this form of relief (then we'll proceed to the facts of this case). Here's what you need to know: A petitioner may be eligible for asylum if he can demonstrate that he is a "refugee." 8 U.S.C. § 1158(b)(1)(A). A refugee, as defined by federal law and as relevant to this case, is a person who has either been persecuted or has a well-founded fear that, if he is returned to his home country, he will suffer persecution on account of a legally protected ground. Id. § 1101(a)(42)(A). These protected grounds include his "race, religion, nationality, membership in a particular social group, or political opinion." Olujoke v. Gonzáles, 411 F.3d 16, 21 (1st Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A) ).

"Persecution normally involves severe mistreatment at the hands of [a petitioner's] own government, but it may also arise where non-governmental actors ... are in league with the government or are not controllable by the government." Ayala v. Holder, 683 F.3d 15, 17 (1st Cir. 2012) (quoting Da Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. ...