On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A 97-589-307
The opinion of the court was delivered by: Rakoff, Senior District Judge:
Argued and Submitted July 21, 2011-San Francisco, California
Before: A. Wallace Tashima and Johnnie B. Rawlinson, Circuit Judges, and Jed S. Rakoff, Senior District Judge.*fn1
Opinion by Judge Rakoff; Partial Concurrence and Partial Dissent by Judge Rawlinson
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 not been the victim of past persecution because he was never "personally challenged or confronted by any potential persecutor." We grant the petition.
The pertinent facts are as follows.*fn2 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 government 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 Historical 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 [Guatemalan Government] designed and implemented a strategy to provoke terror in the population . . . . Mayans as a group . . . were identified by the Army as guerrilla allies . . . [leading to] . . . massacres, scorched earth operations, forced disappearances and executions . . . .
During this conflict, the Guatemalan government, "regarding 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 Guatemala: 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, Guatemalan 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 estimated 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 ...