Manuel Santos-Guaman v. JEFFERSON B. SESSIONS III, Attorney General of the United States

United States Court of Appeals
For the First Circuit
No. 16-2204
MANUEL SANTOS-GUAMAN,
Petitioner,
v.
JEFFERSON B. SESSIONS III, *
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
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.
May 23, 2018
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Jefferson B. Sessions III has been substituted for former Attorney
General Loretta E. Lynch, as the respondent.

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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
1 Santos Guaman originally also applied for withholding of
removal and protection under the Convention Against Torture Act,
but has since abandoned both claims.
2 These facts are elicited from Santos Guaman's hearing
testimony, which the IJ found credible.

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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 16 3 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
3 While Santos Guaman claims he was 18 when he first came to
the United States, based on his December 1, 1986, date of birth
and January 2003 entry into the United States, it appears he was
16.

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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
4 In December 2008, Santos Guaman agreed to a continuance
without a finding in Massachusetts District Court to one count of
operating under the influence, negligent operation, and unlicensed
operation. In August 2010, he pled guilty to operating a motor
vehicle on a suspended license and in November 2013 he again pled
to another suspended license charge as well as to operating without
a license.
5 According to Dr. Cook, Santos Guaman's mother was also
abused: Santos Guaman saw her "crying and bleeding" because "boys
had thrown rocks at her," his family's crops and chickens were
stolen, "the family dogs killed," and after Santos Guaman fled to
the United States, his mother reported that some people "killed a

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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
meat cow, and left the head and feet outside the door to shock and
scare the family."

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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

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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

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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."

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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. 2005)); see also Nikijuluw v.
Gonzales, 427 F.3d 115, 121 (1st Cir. 2005) (persecution must be
the result of the government's actions or inactions). The
applicant bears the burden of proof and can establish persecution
in one of two ways: (1) past persecution or (2) a well-founded
fear of future persecution. Albathani v. INS, 318 F.3d 365, 373
(1st Cir. 2003); 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13.
If a petitioner can prove he suffered past persecution
while in his home country, a presumption of future persecution
follows. 8 C.F.R. § 208.13(b)(1); see Harutyunyan v. Gonzales,
421 F.3d 64, 67 (1st Cir. 2005). To rebut this presumption, the
government is tasked with the burden of demonstrating by a
preponderance of the evidence that either: (1) "[t]here has been
a fundamental change in circumstances such that the applicant no
longer has a well-founded fear of persecution in the applicant's
country of nationality"; or (2) "[t]he applicant could avoid future
persecution by relocating to another part of the applicant's

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country of nationality . . . and under all the circumstances, it
would be reasonable to expect the applicant to do so." 8
C.F.R § 208.13(b)(1)(i)(A)-(B).
While an individual seeking asylum "bears a heavy
burden," and faces a "daunting task" in establishing past
persecution, Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006)
(quoting Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003)), a
determination of whether an applicant suffered persecution is a
fact-sensitive question determined on a case-by-case basis, see
Sok v. Mukasey, 526 F.3d 48, 53 (1st Cir. 2008). We have required
"the sum of [a petitioner's] experiences [to] add up to more than
ordinary harassment, mistreatment, or suffering" to constitute
persecution. Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217
(1st Cir. 2007); Nikijuluw, 427 F.3d at 120 ("[P]ast persecution
requires that the totality of a petitioner's experiences add up to
more than mere discomfiture, unpleasantness, harassment, or unfair
treatment."). The abuse must also "have reached a fairly high
threshold of seriousness, as well as some regularity and
frequency." Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013)
(quoting Rebenko v. Holder, 693 F.3d 87, 92 (1st Cir. 2012)).
Paramount to the case before us, "'age can be a critical
factor' in determining whether a petitioner's experiences cross
this [persecution] threshold." Ordonez-Quino v. Holder, 760 F.3d
80, 91 (1st Cir. 2014) (quoting Liu v. Ashcroft, 380 F.3d 307, 314

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(7th Cir. 2004)). In Ordonez-Quino, we explained that "[w]here
the events that form the basis of a past persecution claim were
perceived when the petitioner was a child, the fact-finder must
'look at the events from [the child's] perspective, [and] measure
the degree of [his] injuries by their impact on [a child] of [his]
age [ ].'" Id. (alterations in original) (emphasis added) (quoting
Hernandez–Ortiz v. Gonzales, 496 F.3d 1042, 1046 (1st Cir. 2007)).
We proceeded to explain that the "harm a child fears or has
suffered . . . may be relatively less than that of an adult and
still qualify as persecution." Id. (quoting Liu, 380 F.3d at 314).
Severity of Mistreatment
Before us, Santos Guaman argues that his case should be
analyzed "bearing in mind" that he was a minor during the time
that he suffered the abuse, harm, and mistreatment in Ecuador--
something he claims the IJ and BIA failed to do. We agree. The
IJ's decision makes no mention of the need to undertake a child-
specific analysis, nor does it suggest in any way that it took
Santos Guaman's age into account. Similarly, the BIA's analysis
also does not apply our child-specific standard for asylum claims
despite the fact that Santos Guaman was a child during the
mistreatment he endured, nor does it give reasoned analysis to
support its finding that Santos Guaman was not persecuted.
Instead, the BIA explained that some of the discrimination and
abuse Santos Guaman faced as a child was because of his ethnicity.

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Then, while correctly citing Ordonez-Quino and noting that the
analysis applied to children's asylum claims differs from adult
claims, the BIA proceeded to rely exclusively on cases applying
the adult asylum standard for its conclusion that Santos Guaman
had only shown "discrimination . . . [and] minor physical
mistreatment," see Awad v. Gonzales, 463 F.3d 73, 76 (1st Cir.
2006) (being slapped in the face by army commander while petitioner
was serving in the military, plus one incident of childhood
bullying, did not amount to persecution of thirty-six-year-old
petitioner under adult asylum standard); Nikijuluw v. Gonzales,
427 F.3d 115, 121 (1st Cir. 2005) (denying petition of incredible
fifty-two-year-old whose asylum claim was unrelated to childhood);
In Re A-M-, 23 I. & N. Dec. 737, 739 (BIA 2005) (analyzing and
denying asylum claim under adult standard where petitioner was
bullied as a child, but claim based on alleged persecution during
adult years). Moreover, the BIA failed to provide any explanation
as to why the facts Santos Guaman described in his (credible)
testimony did not amount to persecution under the childhood
standard.
It is clear to us that the IJ and the BIA erred as a
matter of law in failing to apply the childhood standard.
Accordingly, we deem it appropriate to remand this case to the BIA
for it to apply the correct standard and decide, in the first
instance, whether the abuse suffered by Santos Guaman constitutes

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past persecution. See Aguilar-Escoto v. Sessions, 874 F.3d 334,
338 (1st Cir. 2017) ("The [BIA's] failure to apply the appropriate,
purely objective standard to [the petitioner's] . . . claim
provides an independent basis for remand.") (citing Kozak v.
Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because "the
BIA applied an inappropriate legal standard"); Castañeda-Castillo
v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding "to allow
the matter to be considered anew under the proper legal
standards").
Government Inaction
Should the BIA find on remand that what Santos Guaman
suffered in Ecuador, viewed from a child's perspective, "add[s] up
to more than ordinary harassment, mistreatment, or suffering" and
amounts to "severe mistreatment[,]" Ordonez-Quino, 760 F.3d at 87
(quoting Lopez de Hincapie, 494 F.3d at 217), it will need to
decide whether the abuse Santos Guaman suffered was "government
action, government-supported action, or government's unwillingness
or inability to control private conduct," Nikijuluw, 427 F.3d at
120–21,--a requisite for a finding of past persecution.
Before the IJ, Santos Guaman argued that he had
experienced past persecution on account of state inaction and that
"his community's seriously abusive mistreatment is condoned by
government officials responsible for enacting unfair legislation[]
or at the least, permitted as demonstrated by their helplessness

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or inability to protect victims." According to an Ecuador 2013
Human Rights Report submitted by Santos Guaman, while "[t]he
constitution prohibits discrimination based on race, gender,
disability, language, or social status[,] [t]he government did not
fully enforce these prohibitions . . . [and] indigenous persons
. . . continued to face discrimination." In its decision, the IJ
acknowledged that the country report reflects that indeed
indigenous persons continue to suffer discrimination at many
levels of society, and it also noted all of the legal rights
afforded to indigenous persons, including the right to hold title
to land communally, manage reserves that the government set aside
for biodiversity protection, and be consulted and participate in
decisions regarding exploitation of non-renewable resources that
are located on their lands and that could affect their culture or
environment. It further noted that the constitution "strengthens
the rights of indigenous persons" and that the government has
"established an Ombudsman's office for human rights which the
constitution describes as an administratively and financially
independent body under the transparency and social control branch
of the government focused on human rights problems," before
concluding that "[t]he thrust of the matter is that while there is
discrimination in Ecuador the discrimination is not so pervasive
and intolerable and either government directed or condoned such as
to be tantamount to persecution."

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Before the BIA, Santos Guaman again argued that while
"[t]he Ecuadorian [C]onstitution prohibits discrimination on the
basis of race or indigenous descent, [it] does not actively enforce
this prohibition." He argued that the Ecuadorian government
"implicitly condones the harm [he] suffered." The BIA, which
expressed its agreement with the IJ's full ruling, never addressed
this specific argument. Instead, it affirmed the IJ's finding on
past persecution (elaborating only on the IJ's severity ruling),
summarized the rights articulated in the Ecuadorian Constitution
pertaining to indigenous persons, and concluded that the
mistreatment Santos Guaman suffered was not so severe to constitute
past persecution. On remand, we instruct the BIA to address Santos
Guaman's argument that while the Ecuadorian Constitution vests
indigenous persons with several rights, these rights are not
actively enforced by the government.
CONCLUSION
For the foregoing reasons, we VACATE the BIA's order
dismissing Santos Guaman's appeal and remand for further
proceedings consistent with this opinion.

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