          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.
               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.


                                       - 2 -
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


     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.


                                  - 3 -
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


      4In 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.
      5According 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


                                      - 4 -
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."


                                             - 5 -
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




                                             - 6 -
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


                                       - 7 -
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."




                                  - 8 -
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


                                          - 9 -
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


                                           - 10 -
(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.


                                       - 11 -
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


                                           - 12 -
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


                                       - 13 -
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."


                                        - 14 -
          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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