Thursday, August 9, 2007
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Ninth Circuit Panel Revives Mayans’ Bid to Block Deportation
By KENNETH OFGANG, Staff Writer
An immigration judge, in ruling on the credibility of an asylum applicant, must take into consideration the applicant’s age at which the events forming the basis of the application occurred, the Ninth U.S. Circuit Court of Appeals.
Citing similar rulings in three other circuits, the court vacated an IJ’s ruling, summarily affirmed by the Board of Immigration Appeals, that would have cleared the way for a pair of Mayan Indian brothers to be deported to their native Guatemala.
The applicants, Guillermo and Florentino Hernandez-Ortiz, were nine and seven years old, respectively, in 1982 when—according to their testimony—the Guatemalan army came to Gracias a Dios, a village of 500 mostly Mayan families. They testified that soldiers prohibited anyone from leaving the village, even to tend to their crops, and conscripted their older brother to serve in a patrol hunting guerrillas.
When the older brother fled rather than serve, they said, their father was threatened, beaten during the night, and taken away; when he returned, the brothers said, the family fled to the mountains, and later to Mexico.
They later learned that their older brother had been killed by soldiers.
They entered the United States illegally in 1991 and applied for asylum six years later. At hearings held on three occasions in 2000, 2001, and 2002, they submitted their own testimony, along with a psychological evaluation in 1999 and reports on human rights violations in their native country.
The psychotherapist reported the young men had been traumatized to a great degree by their childhood experiences.
Change in Testimony
At the last hearing, Florentino Hernandez-Ortiz testified that he had made an error in his earlier testimony. After originally saying that he had never left the United States after his arrival, he admitted that he had gone back to Mexico on one occasion to visit his parents, then reentered by walking across the border.
He said he was trying to conceal the fact of the trip from his brother, who had not wanted him to risk returning to Mexico. The IJ cited the change in testimony in determining that the applicant generally lacked credibility, noting that the applicant was shaky as to the dates of the trip.
But Senior Judge John T. Noonan, writing for the Ninth Circuit, noted that the Second,. Sixth, and Seventh circuits “have now vindicated a principle that is surely a matter of common sense: a child’s reaction to injuries to his family is different from an adult’s.”
Lasting Trauma
That principle should have been incorporated into both the credibility determination and the determination of whether the brothers’ fear of future persecution was reasonable, the judge said.
“The child is part of the family, the wound to the family is personal, the trauma apt to be lasting,” Noonan wrote.
“The rule we articulate for this circuit is new but the principle is old,” he explained. “The three circuit cases reflect this common sense proposition. The IJ did acknowledge the ages at which Guillermo and Florentino experienced the injuries to which they testified. The IJ, however, did not look at the events from their perspective, nor measure the degree of their injuries by their impact on children of their ages. She committed legal error.”
The IJ also erred, Noonan wrote, in basing her adverse credibility determination on misrepresentations whose “relevance...is hard to see.”
Judges Jay S. Bybee and Milan D. Smith Jr. concurred in the opinion.
Copyright 2007, Metropolitan News Company