Mendoza-Pablo v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN UBALDO MENDOZA-PABLO, 

Petitioner, No. 07-73592

v.

 Agency No.

A 97-589-307

ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

July 21, 2011—San Francisco, California

Filed February 7, 2012

Before: A. Wallace Tashima and Johnnie B. Rawlinson,

Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

Opinion by Judge Rakoff;

Partial Concurrence and Partial Dissent by Judge Rawlinson

*The Honorable Jed S. Rakoff, Senior United States District Judge for

the Southern District of New York, sitting by designation.

1209

1212 MENDOZA-PABLO v. HOLDER

COUNSEL

Robert L. Lewis, Law Office of Robert L. Lewis, Oakland

Califoria, for the petitioner.

Gregory G. Katsas, Daniel E. Goldman, and Yamileth G.

Handuber, United States Department of Justice, Civil Divi-

sion/Office of Immigration Litigation, Washington, DC, for

the respondent.

OPINION

RAKOFF, Senior District Judge:

Petitioner Juan Ubaldo Mendoza-Pablo petitions for review

of a decision of the Board of Immigration Appeals (“BIA”)

denying his applications for asylum, withholding of removal,

and protection under the Convention Against Torture

(“CAT”) on the ground, inter alia, that Mendoza-Pablo had

MENDOZA-PABLO v. HOLDER 1213

not been the victim of past persecution because he was never

“personally challenged or confronted by any potential perse-

cutor.” We grant the petition.

The pertinent facts are as follows.1 Mendoza-Pablo is a

member of the Mam Mayan group, an indigenous ethnic

group whose members live predominantly in Guatemala. His

family originally hailed from the village of Todos Santos. In

1982, when Mendoza-Pablo was born, the Guatemalan gov-

ernment was engaged in a fierce and largely one-sided civil

war with insurgent groups predominantly of Mayan ethnicity.

In Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006), the

Second Circuit, citing the Report of the “Commission for His-

torical Clarification” (which was established by the June 23,

1994 Oslo Accord as part of the United Nations-brokered

peace process), described this conflict as follows:

. . . 83% of the identified victims of the violence

were Mayan . . . [and] state forces and related

paramilitary groups were responsible for 93% of

[documented human rights] violations . . . .

[T]hroughout the armed confrontation the [Guatema-

lan Government] designed and implemented a strat-

egy to provoke terror in the population . . . . Mayans

as a group . . . were identified by the Army as guer-

rilla allies . . . [leading to] . . . massacres, scorched

earth operations, forced disappearances and execu-

tions . . . .

1

These facts derive in substantial part from Mendoza-Pablo’s testimony

before the Immigration Judge (“IJ”). Because the IJ found his testimony

credible, and this finding was upheld by the BIA, we accept as true the

facts testified to by Mendoza-Pablo. See Ladha v. INS, 215 F.3d 889, 900

(9th Cir. 2000) (“[W]hen an alien credibly testifies to certain facts, those

facts are deemed true, and the question remaining to be answered becomes

whether these facts, and their reasonable inferences, satisfy the elements

of the claim for relief.”). For present purposes, this also includes informa-

tion Mendoza-Pablo credibly testified he learned from his mother about

events surrounding his birth and early years.

1214 MENDOZA-PABLO v. HOLDER

Id. at 150.

During this conflict, the Guatemalan government, “regard-

ing the entire civilian population of many villages as members

of guerrilla groups,” sought to “physically eliminat[e]” all the

people residing in those villages, including children. See Gua-

temala: Never Again! The Official Report of the Human

Rights Office, Archdiocese of Guatemala, at 32 (Greta Tovar

Siebentritt, trans.) At some point in 1982, when Mendoza-

Pablo’s mother was eight months pregnant with him, Guate-

malan government soldiers, having accused the residents of

Todos Santos of aiding the guerrillas, burned the village to the

ground, massacring many of the village’s inhabitants in the

process. Though Mendoza-Pablo’s immediate family, along

with some other villagers, escaped the attack by hiding in the

mountains, his paternal grandparents and two aunts were

killed when government soldiers locked them in their homes

and burned them alive. Outside observers have estimated that

“[i]n Todos Santos (the town) sixty to eighty people were

killed in 1981-1982” and “[t]he army also burned an esti-

mated 150 or more houses.”

Very shortly thereafter, Mendoza-Pablo was born, several

weeks premature. Food was scarce in the mountains and

Mendoza-Pablo’s mother, unable to breast feed, sought to

nourish him with tea made from wild herbs. When he was

roughly three months old, Mendoza-Pablo’s family decided

that, in light of the foregoing events, remaining in Guatemala

posed a danger to their lives. Accordingly, the family traveled

to Mexico, where, however, they did not have lawful status,

as a result of which Mendoza-Pablo was unable to attend

school and had difficulty obtaining employment. In addition,

Mendoza-Pablo was often sick and frequently had nightmares.2

2

In this regard, Mendoza-Pablo testified as follows, “[w]hen I was

growing up in Mexico I would often get very sick and then I think it did

jeopardize me because I would wake up at night just frightened, having

nightmares, frightened and shaking, and I think it’s because of all of that

time we had spent in the mountains and the things that were happening

there.”

MENDOZA-PABLO v. HOLDER 1215

Eventually, in September 2002, Mendoza-Pablo entered the

United States illegally.

In due course, the U.S. Government sought Mendoza-

Pablo’s removal, and on May 19, 2003, Mendoza-Pablo

appeared before an IJ without counsel, and was granted a con-

tinuance of removal proceedings to obtain legal representa-

tion. On October 16, 2003, he filed with the Department of

Homeland Security (“DHS”) an application for asylum, with-

holding of removal, and protection under the Convention

Against Torture (“CAT”). After the IJ granted two additional

continuances — to allow for attorney preparation, for the res-

olution of a pending Freedom of Information Act request, and

for Mendoza-Pablo to retain new counsel — on July 7, 2004,

Mendoza-Pablo appeared before the IJ and renewed his appli-

cations for asylum, withholding of removal, and CAT protec-

tion. On March 20, 2006, four days before the scheduled

merits hearing on those applications, counsel for Mendoza-

Pablo filed a motion to continue the proceedings so as to

“allow time for a psychological evaluation” of Mendoza-

Pablo, which had not yet been completed because of “sched-

uling and monetary restraints.” The IJ denied the request, rul-

ing that “no good cause ha[d] been established” for a

continuance.

On March 24, 2006, after a merits hearing, the IJ denied

Mendoza-Pablo’s applications for asylum, withholding of

removal, and CAT protection. The IJ found Mendoza-Pablo

credible in all respects, but held that the substance of his testi-

mony was insufficient to meet his burden of establishing past

persecution. Specifically, the IJ held that Mendoza-Pablo had

not been persecuted because he had never personally “wit-

nessed any atrocities” and he was never “personally chal-

lenged or confronted” by the Guatemalan military forces that

attacked Todos Santos. The IJ further emphasized that

Mendoza-Pablo had not adduced any evidence “from a pro-

fessional standpoint” that he had suffered psychologically as

a result of his childhood experiences. Finally, the IJ stated that

1216 MENDOZA-PABLO v. HOLDER

the attack on Todos Santos and the resultant deaths of

Mendoza-Pablo’s extended family members could not consti-

tute persecution “when the event[s] happened during . . . the

civil war . . . in Guatemala.”

Mendoza-Pablo appealed the IJ’s decision to the BIA,

which, by Order dated August 9, 2007, affirmed the IJ’s deci-

sion. Specifically, the BIA held that Mendoza-Pablo’s “sec-

ond hand exposure” to the civil war in Guatemala was

insufficient to establish past persecution because he did not

personally endure or witness the atrocities perpetrated by the

Guatemalan government against his family and ancestral vil-

lage. Further, the BIA agreed that Mendoza-Pablo’s testimony

as to any emotional harm he suffered as a result of his child-

hood experiences was insufficient to constitute past persecu-

tion without “expert or objective evidence” that he presently

suffers from a psychological disorder stemming from those

experiences.3 The instant petition for review followed.

DISCUSSION

Because the BIA conducted an independent review of the

IJ’s findings, we review the BIA’s decision and not that of the

IJ. Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003);

see also INA, 8 U.S.C. § 1252(a)(1) (Courts review the agen-

cy’s “final order of removal”). We review the BIA’s purely

3

The BIA also ruled that Mendoza-Pablo had failed to establish “an

objectively reasonable well-founded fear of [future] persecution” because

(a) the Guatemalan government’s attacks on his family’s village occurred

over 20 years ago and are thus “too remote” and (b) his “general claim that

[he] ‘could be killed’ by unknown persons is insufficient to support an

asylum claim.” Similarly, many of the factual circumstances relied on by

Judge Rawlinson in her partial dissent relate solely to whether Mendoza-

Pablo has a well-founded fear of future persecution. However, because we

conclude that the BIA erred in holding that Mendoza-Pablo had not been

subject to past persecution, we do not reach this question. On remand, the

BIA will have to address this question anew, with the burden of proof

properly placed on the Government rather than Mendoza-Pablo. See

Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir. 2005).

MENDOZA-PABLO v. HOLDER 1217

factual determinations for substantial evidence. Li v. Holder,

559 F.3d 1096, 1102 (9th Cir. 2009); see also INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992) (BIA factual determina-

tions must be upheld if it is “supported by reasonable, sub-

stantial, and probative evidence on the record considered as

a whole”). However, we review de novo both “purely legal

questions” and “mixed questions of law and fact requiring us

to exercise judgment about legal principles.” United States v.

Ramos, 623 F.3d 672, 679 (9th Cir. 2010); Kankamalage v.

INS, 335 F.3d 858, 861 (9th Cir. 2003). While “[t]he BIA’s

interpretation of immigration laws is entitled to deference

. . . [,] we are not obligated to accept an interpretation clearly

contrary to the plain and sensible meaning of the statute.”

Kankamalage, 335 F.3d at 862; see also Chevron U.S.A., Inc.

v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9

(1984).

The Attorney General may, in his discretion, grant asylum

to applicants determined to be refugees within the meaning of

the Immigration and Nationality Act (“INA”), 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1). An applicant qualifies as a

refugee when he “is unable or unwilling to return to his home

country because of a well-founded fear of future persecution

on account of race, religion, nationality, membership in a par-

ticular social group, or political opinion.” Navas v. INS, 217

F.3d 646, 654 (9th Cir. 2000). We presume that an applicant

has a “well-founded fear of future persecution,” and is there-

fore eligible for asylum, where he presents proof establishing

his past persecution. Fisher v. INS, 79 F.3d 955, 960 (9th Cir.

1996) (en banc). Once past persecution is established, the bur-

den then shifts to the Government to rebut this presumption

by showing, inter alia, “a fundamental change in circum-

stances such that the applicant no longer has a well-founded

fear of persecution.” Deloso v. Ashcroft, 393 F.3d 858, 863-64

(9th Cir. 2005).

[1] Persecution is defined as “the infliction of suffering or

harm . . . in a way regarded as offensive.” Li v. Ashcroft, 356

1218 MENDOZA-PABLO v. HOLDER

F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation

marks omitted). We have recognized that, in light of this gen-

eral definition, persecution can “come[ ] in many forms,”

including physical, economic, and emotional harm. See Knez-

vic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004) (citing

cases).

[2] This case requires us to determine whether Mendoza-

Pablo’s early deprivations growing directly out of the unques-

tionable persecution of his mother and, more generally, his

and his parents’s fear of further persecution growing directly

out of the Guatemalan government’s across-the-board perse-

cution of Mayans, constitutes persecution under the INA.

Mendoza-Pablo was born in the mountains several weeks pre-

mature, very shortly after his pregnant mother fled from Gua-

temalan government forces that had attacked her ancestral

village, burned the village to the ground, and massacred its

inhabitants, including several of Mendoza-Pablo’s close rela-

tives. Despite his mother’s best efforts, Mendoza-Pablo was

severely malnourished throughout the first few months of his

life, because his mother was too malnourished to breastfeed.

Faced with the very real threat of further persecution, the fam-

ily, just months after the village was massacred, fled the coun-

try. Although Mendoza-Pablo’s family succeeded in escaping

to Mexico, their unlawful status there directly led to further

deprivations suffered by Mendoza-Pablo, including lack of

schooling and difficulty finding employment.

[3] The BIA concluded that the foregoing does not to con-

stitute “persecution” because Mendoza-Pablo’s experiences,

in its view, constituted “second hand exposure” to the vio-

lence perpetrated against the inhabitants of Todos Santos. As

an initial matter, it is clear from our case law that an infant

can be the victim of persecution, even though he has no pres-

ent recollection of the events that constituted his persecution.

See Benyamin v. Holder, 579 F.3d 970, 792 (9th Cir. 2009)

(enduring genital mutilation as a five-day-old infant consti-

MENDOZA-PABLO v. HOLDER 1219

tutes persecution).4 Indeed, at least three Courts of Appeals in

other Circuits have indicated that the quantum of harm suf-

fered by a child “may be relatively less than that of an adult

and still qualify as persecution.” U.S. Dep’t of Justice, Guide-

lines for Children’s Asylum Claims, 1998 WL 34032561

(1998); see Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004)

(“age can be a critical factor in the adjudication of asylum

claims and may bear heavily on the question of whether an

applicant was persecuted or whether she holds a well-founded

fear of future persecution”); Jorge-Tzoc v. Gonzales, 435 F.3d

146,150 (2d Cir. 2006) (same); Abay v. Ashcroft, 368 F.3d

634, 640 (6th Cir. 2004) (same). Furthermore, as we held in

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007):

Three sister 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. The child is part of the family, the wound to

the family is personal, the trauma apt to be lasting.

. . . We now join the Second, Sixth, and Seventh Cir-

cuits in affirming the legal rule that injuries to a fam-

ily must be considered in an asylum case where the

events that form the basis of the past persecution

claim were perceived when the petitioner was a

child.

Id. at 1045-46. Accordingly, the harms suffered by Mendoza-

Pablo’s family members “must be considered” in assessing

4

Judge Rawlinson objects that Benyamin is distinguishable from the

instant case in that “the infant in Benyamin was directly subjected to a

physical injury.” This distinction, however, is not controlling. We have

repeatedly held that physical injury is not a necessary prerequisite to per-

secution. See Knezvic, 367 F.3d at 1211 (collecting cases in which we held

that persecution can include, inter alia, “severe harassment, threats, vio-

lence, and discrimination”; “forced institutionalization”; “violence against

family, and seizure of family land and ration card”; and “mental, emo-

tional, and psychological harm”).

1220 MENDOZA-PABLO v. HOLDER

whether the events of his childhood rise to the level of past

persecution.

Moreover, as we have consistently recognized, being

forced to flee from one’s home in the face of an immediate

threat of severe physical violence or death is squarely encom-

passed within the rubric of persecution, as long as the perse-

cutors’ actions are motivated by the victim’s race or some

other protected consideration. See Knezvic, 367 F.3d at 1211;

see also Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004)

(threats of serious harm or death may constitute persecution).

For instance, in Knezvic, we held that the petitioners, who are

of Serbian ethnicity, had suffered persecution during the civil

war in the former Yugoslavia when they were forced to

“fle[e] their hometown” because they believed that “shelling

and bombardment by hostile Croat army forces threatened

their lives.” Id. at 1208-09 (also noting that the petitioners’

“business and home were destroyed”).

Here, Mendoza-Pablo’s pregnant mother, like the petition-

ers in Knezvic, fled from her home village as a result of her

(eminently-reasonable) belief that her life — as well the life

of the child in her womb — was in severe and immediate dan-

ger because Guatemalan military forces had specifically tar-

geted the village’s inhabitants on the basis of their racial and

ethnic background. The tragic seriousness of the danger was

confirmed when several of Mendoza-Pablo’s relatives were

locked inside of their homes and burned alive by Guatemalan

government soldiers.

[4] The persecution of Mendoza-Pablo’s pregnant mother

directly informs everything that happened to him in the weeks

and months thereafter. Prematurely born to his distraught and

persecuted mother, Mendoza-Pablo suffered intensely during

his first three months of life because of severe malnourish-

ment occasioned by his mother’s flight to the mountains.

While the precise long-term effect of these circumstances on

Mendoza-Pablo’s physical and mental development may well

MENDOZA-PABLO v. HOLDER 1221

be impossible to determine,5 it would fly in the face of com-

mon experience not to recognize the likelihood that these

deprivations would have some deleterious and long-lasting

effects.6 Moreover, the well-grounded fear that the govern-

ment would continue to persecute the remaining family mem-

bers because of their Mayan ethnicity not only placed the

family in continuous fear but also directly precipitated their

flight to Mexico, which in turn inflicted further serious depri-

vations on petitioner.

[5] Accordingly, on the particular facts of this case, we

conclude that where a pregnant mother is persecuted in a

manner that materially impedes her ability to provide for the

basic needs of her child, where that child’s family has undis-

putedly suffered severe persecution, and where the newborn

child suffers serious deprivations directly attributable not only

to those facts, but also to the material ongoing threat of con-

tinued persecution of the child and the child’s family, that

child may be said to have suffered persecution and therefore

be eligible for asylum under the INA. See Jorge-Tzoc, 435

F.3d at 150 (concluding that the petitioner suffered persecu-

tion where he “was a child [of seven] at the time of the massa-

5

To the extent that the dissent suggests that suffering “lingering effects”

in the form of clinically diagnosable psychological illness or permanent

physical injury is a prerequisite to proving past persecution, this is not

supported by the case law of this Circuit. See, e.g., Singh v. I.N.S., 94 F.3d

1353 (9th Cir. 1996) (past persecution established by threats and violence

not resulting in permanent injuries).

6

Nothing in the INA or its implementing regulations requires that a peti-

tioner produce “objective” or “expert” evidence. See Brucaj v. Ashcroft,

381 F.3d 602 (7th Cir. 2004) (no expert testimony required to substantiate

the psychological trauma associated with a petitioner’s persecution); 8

C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without corroboration”). Never-

theless, the record in this very case indicates that large numbers of ethnic

Mayans who fled Guatemala to Mexico during the civil war continue to

suffer from a variety of mental illnesses stemming from “traumatic

events” that occurred during the war, including “lack of food,” “lack of

housing,” and “lack of refuge or housing.”

1222 MENDOZA-PABLO v. HOLDER

cres . . . and thus necessarily dependant on both his family

and his community” to an extent that an adult is not).7

[6] For the foregoing reasons, we conclude that the BIA’s

ruling that Mendoza-Pablo did not suffer past persecution

because his exposure to persecution was “second hand”

reflects an incorrect view of the applicable law, which permits

the BIA to take account of the indirect effects of persecution

as well as the direct effects, at least where, as here, the con-

nection between the two is so immediate and strong. We

therefore remand Mendoza-Pablo’s petition to the BIA for

further proceedings not inconsistent with this Opinion.

PETITION GRANTED; REMANDED for further pro-

ceedings.

RAWLINSON, Circuit Judge, concurring in part, and dissent-

ing in part:

I agree in principle that an infant may be subjected to per-

secution. However, I do not agree that the facts of this case

compel a conclusion that Petitioner Juan Ubaldo Mendoza-

Pablo was subjected to persecution as an infant. I respectfully

dissent.

Mendoza-Pablo was informed by his mother that he was

born several weeks premature, and was malnourished because

of the family’s forced retreat into the mountains, where food

was scarce. When Mendoza-Pablo was approximately three

months old, Mendoza-Pablo’s family fled to Mexico. In Mex-

7

In light of these conclusions, we need not reach Mendoza-Pablo’s con-

tention that the IJ abused her discretion in denying Mendoza-Pablo’s

request for a continuance so as to obtain a professional psychological

assessment. On remand the BIA may nevertheless, in its discretion, choose

to remand to the IJ so that the record may be supplemented by a psycho-

logical report.

MENDOZA-PABLO v. HOLDER 1223

ico, Mendoza-Pablo was unable to attend school and experi-

enced difficulty in finding employment. Mendoza-Pablo also

reported frequent illness and recurring nightmares.

When asked why he was seeking asylum, Mendoza-Pablo

responded, “I’m applying for asylum because I don’t have

papers or anything . . . I don’t have where to live [sic]. I don’t

have anywhere to go. . . .” 1 When asked what would happen

if he returned to Guatemala, Mendoza-Pablo replied that he

“could be killed or other things that happened to [his] family

could also happen to [him].” However, when asked the iden-

tity of his potential killer(s), Mendoza-Pablo admitted that he

did not actually have any ideas as to who might want to kill

him. He speculated that the indigenous people “like [him]”

would want to kill him, but then conceded that he was not

identifiable as indigenous from his appearance.

Mendoza-Pablo never articulated a concrete reason to sup-

port his asserted fear of being killed. When the subject was

raised for the final time during the hearing, the best explana-

tion he could muster was:

Well within me I just feel that if I were to be there

that I am an unknown person, that someone could

kill me there. It’s just things that I think about and

it’s something that I am afraid of.

...

Well I’m just afraid that because I’m someone

that’s unfamiliar, an unknown person, that someone

would kill me or perhaps someone burn me, or per-

1

The majority ignores this testimony and relies on Mendoza-Pablo’s

later testimony that he “thought” the time spent in the mountains “jeopar-

dized” him. Majority Opinion, p. 1214 n.2. However, Mendoza-Pablo

admitted that he had absolutely no memory of the time spent in the moun-

tains.

1224 MENDOZA-PABLO v. HOLDER

haps something like that could happen to me

although I have no memory of all of that. I don’t

remember any of that.

(Emphases added).

The Immigration Judge (IJ) credited Mendoza-Pablo’s tes-

timony, but held that the testimony was not sufficient to meet

Mendoza-Pablo’s burden of establishing either past persecu-

tion or a well-founded fear of future persecution on account

of a protected ground. The IJ based his finding on the follow-

ing observations:

1. Mendoza-Pablo’s claim of psychological trauma

was not supported by any evidence.

2. Mendoza-Pablo did not suffer persecution as

defined by the BIA in Matter of Chen, 20 I&N

Dec. 16 (BIA 1989). The IJ specifically noted

that Mendoza-Pablo never personally witnessed

any of the atrocities inflicted upon his family

members and that Mendoza-Pablo was never

personally confronted by the persecutors.

3. The fact that Mendoza-Pablo witnessed his

mother crying does not rise to the level of perse-

cution.

4. Mendoza-Pablo presented no evidence of any

negative residual effect of the three months he

spent in the mountains as an infant.

5. Mendoza-Pablo’s expressed fear that he would

be killed if he returned to Guatemala was objec-

tively unreasonable in view of Mendoza-Pablo’s

inability to identify anyone who would have rea-

son to kill him.

6. The persecution of Mendoza-Pablo’s family

took place over twenty years ago and Mendoza-

MENDOZA-PABLO v. HOLDER 1225

Pablo presented no evidence that anyone was

seeking to harm Mendoza-Pablo after the expi-

ration of twenty-plus years.

7. Peace accords have been negotiated between the

factions previously engaged in civil war in Gua-

temala and the civil war ceased long ago.2

The Board of Immigration Appeals (BIA) affirmed the IJ’s

denial of relief. The BIA noted that Mendoza-Pablo had abso-

lutely no recollection of the events that formed the basis for

his claim of persecution. The BIA explicitly upheld the IJ’s

determination that Mendoza-Pablo failed to establish that he

was the victim of past persecution. The BIA acknowledged

that Mendoza-Pablo’s persecution claim was predicated pri-

marily on “alleged emotional harm . . .” Nevertheless, the

BIA agreed with the IJ that the lack of objective evidence or

expert testimony in support of the claimed harm rendered

Mendoza-Pablo’s claim without merit.

The BIA also agreed with the IJ that Mendoza-Pablo’s

“second-hand exposure to war” where he “never witnessed

any atrocities or was ever personally challenged or confront-

ed,” was insufficient to establish past persecution.

Finally, the BIA affirmed the IJ’s ruling that there was

insufficient evidence in the record to support a finding that

Mendoza-Pablo had an objectively reasonable fear of future

persecution. The persecution of Mendoza-Pablo’s parents was

too remote to establish an objectively reasonable fear of

future persecution, and Mendoza-Pablo’s claims regarding

how he would be injured if he returned to Guatemala were

entirely speculative.

2

The majority counters that “many” of these facts relate to a fear of

future persecution. Majority Opinion, p. 1216 n.3. Even so, the majority

fails to explain why the findings that address a lack of past persecution do

not constitute substantial evidence.

1226 MENDOZA-PABLO v. HOLDER

It is important to keep in mind that our review of the deci-

sion of the Board of Immigration Appeals (BIA) is extremely

limited. In order for us to reach a different conclusion, the

record must compel a different result. See INS v. Elias-

Zacarias, 502 U.S. 478, 484 (1992); see also Padash v. INS,

358 F.3d 1161, 1165 (9th Cir. 2002). So long as there is sub-

stantial evidence in the record supporting the BIA’s decision,

that decision must be upheld. See id. Such record evidence

supports the BIA’s decision in this case.

“Persecution is an extreme concept that does not include

every sort of treatment our society regards as offensive. . . .”

Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir. 2004)

(citation and internal quotation marks omitted). Our precedent

generally involves some physical harm to the petitioner to

support a claim of past persecution. See Nahrvani v. Gon-

zales, 399 F.3d 1148, 1153 (9th Cir. 2005) (“Physical vio-

lence inflicted against an individual often meets the

requirement of severity that characterizes persecution. . . .”)

(citations, alteration, and internal quotation marks omitted).

As the BIA stated in its decision, Mendoza-Pablo offered no

evidence of physical harm. In addition, Mendoza-Pablo’s

claim of emotional harm was not substantiated by specific tes-

timony, objective evidence or expert testimony. See Nahrvani,

399 F.3d at 1154 (observing that denial of asylum claim was

warranted because petitioner failed to substantiate his claim);

see also Ouk v. Gonzales, 464 F.3d 108, 111 (1st Cir. 2006)

(holding that petitioner failed to establish link between emo-

tional harm and alleged persecution). Mendoza-Pablo’s

description of his struggles in Mexico do not establish past

persecution. See Gormley, 364 F.3d at 1178-80 (noting that

economic disadvantage does not constitute persecution). Sim-

ilarly, Mendoza-Pablo’s vague testimony describing his fear

of future persecution was insufficient. See Lolong v. Gon-

zales, 484 F.3d 1173, 1179 (9th Cir. 2007) (en banc) (reject-

ing a “general, undifferentiated claim” of future persecution).

MENDOZA-PABLO v. HOLDER 1227

The cases cited by the majority are easily distinguished.

Benyamin v. Holder, 579 F.3d 970 (9th Cir. 2000) involved

an infant girl who was subjected to female genital mutilation,

a practice we have described as a permanent disfigurement of

the female genitalia with “serious, potentially life-threatening

complications. . . .” Id. at 972 (citation omitted). Unlike

Mendoza-Pablo, the infant in Benyamin was directly sub-

jected to a physical injury with permanent effects, rising to

the level of persecution. See id.3

The cases cited by the majority stand for the unremarkable

proposition that age is a factor to be considered in determin-

ing whether persecution has occurred. See Hernandez-Ortiz v.

Gonzales, 496 F.3d 1042 (9th Cir. 2007; see also Liu v. Ash-

croft, 380 F.3d 307, 314 (7th Cir. 2004); Jorge-Tzoc v. Gon-

zales, 435 F.3d 146, 150 (2d Cir. 2006); Abay v. Ashcroft, 368

F.3d 634, 640 (6th Cir. 2004). These cases in no way under-

mine the administrative resolution of Mendoza-Pablo’s asy-

lum claims. Indeed, both the IJ and the BIA expressly

considered Mendoza-Pablo’s age at the time of the asserted

persecution.

The best the majority can do is speculate regarding the like-

lihood that the “deprivations” experienced by Mendoza-Pablo

“would have some deleterious and long-lasting effects. . . .”

Majority Opinion, p. 1221. The majority cites Brucaj v. Ash-

croft, 381 F.3d 602 (7th Cir. 2004), for the proposition that

the credible testimony of the applicant may sustain his burden

of proof. See Majority Opinion, p. 1221 n.6. I have no quarrel

3

The majority responds by citing Knezvic v. Ashcroft, 367 F.3d 1206,

1211 (9th Cir. 2004) for the proposition that persecution “can include inter

alia, severe harassment, threats, violence and discrimination; forced insti-

tutionalization; violence against family, and seizure of family land and

ration card; and mental, emotional and psychological harm.” Majority

Opinion, p. 1219 n.4 (parentheses and internal quotation marks omitted).

The flaw in the majority’s argument is that the person seeking asylum

must prove the persecution. See Knezvic, 367 F.3d at 1211, and Mendoza-

Pablo failed to do so.

1228 MENDOZA-PABLO v. HOLDER

with the expressed proposition. But the proposition is no sub-

stitute for evidence. And the evidence in this case, including

Mendoza-Pablo’s testimony, contains not a shred of proof of

any lingering effects of the deprivations he suffered. Faced

with this lack of evidence, it is incomprehensible that the

majority purports to be compelled to reverse the BIA’s ruling.

I cannot agree.