Harvard Immigration and Refugee Clinical Program attains major First Circuit victory involving persecution in Guatemala

In a landmark immigration decision involving a claim of eligibility for asylum, the First Circuit Court of Appeals has issued an opinion finding past persecution in the case of a Mayan man, based on the long history of genocide in Guatemala and related racist mistreatment.

The case, Ordonez-Quino v. Holder, 2014 U.S. App. LEXIS 14004, originated from the New Bedford, Massachusetts factory raid in 2007, when 361 workers were arrested and sent to Texas without being given an opportunity to obtain counsel or go forward with their removal hearings in the venue in which they resided. The client in the case, Manuel Ordonez-Quino, was represented by Harvard Law School Senior Clinical Instructors John Willshire Carrera and Nancy Kelly, co-managing directors of the Harvard Immigration and Refugee Clinic at Greater Boston Legal Services.

In its July 23 decision, the First Circuit panel vacated the Board of Immigration Appeals’ decision denying asylum to Ordonez-Quino, a Guatemalan indigenous Mayan Quiché, who was persecuted by the Guatemalan military and others on account of his race and ethnicity.

In its decision, the court overruled the Board of Immigration Appeals and the immigration judge, pointing to the extensive evidence in the record demonstrating that Ordonez-Quino and his community were targeted by government forces and others during the war because of their Mayan identity and their resistance to racist attacks. The court ruled that the cumulative harm Ordonez-Quino had experienced since his childhood constituted past persecution based on his race and ethnicity, and remanded the case for further proceedings.

Immigration advocates, scholars, and practitioners across the country have called the court’s decision “groundbreaking.”

The decision, using a ‘child centered’ approach recognized in the First Circuit decision of Mejia Romero v. Holder, also brought by Kelly and Willshire Carrera, underscored the importance of considering the harm suffered and feared, as well as the underlying reasons for the harm, from the child’s perspective.

Harvard Law School Professor Deborah Anker, author of the seminal treatise “Law of Asylum in the United States,” said, “This decision reinforces the landmark decision in Mejia Romero v. Holder that emphasized the need for a full, honest and complete consideration of the record presented in all cases, and especially in cases involving children. The Ordonez-Quino case also acknowledges the Guatemalan genocide.”

Immigration and asylum litigator attorney Harvey Kaplan, who served in a pivotal pro bono capacity in the Ordonez-Quino case, said: “This is an amazing First Circuit decision finding genocide of Mayans in Guatemala. It is an extraordinary decision explicitly addressing racist military policies against the indigenous people of Guatemala, as well as, many other major issues in asylum law.”

Growing up during Guatemala’s civil war, Ordonez-Quino and his indigenous family were repeatedly subjected to threats and attacks by the Guatamalan army, including bombings and the destruction of their home and community. When Ordonez-Quino was five or six years old, he lost most of his hearing as a result of a bomb attack. He was rendered severely ill for many months, after which his social and linguistic development was permanently impacted. Over the years, Ordonez-Quino and his family continued to suffer severe racial mistreatment, humiliation and ongoing threats and attacks.

After his arrest in New Bedford, Ordonez-Quino was sent to Texas, where he was advised of his rights, along with 30 other detainees. He did not speak up because of his severe hearing impairment and his lack of facility with either the Spanish or English languages. He was ordered deported without an opportunity to obtain counsel.

With Kaplan, Kelly and Willshire Carrera reopened Ordonez-Quinos’ case, which was remanded back to Boston where they represented him before an immigration judge. At his merits hearing, Ordonez-Quino presented extensive evidence supporting his claim.

Ordonez-Quino is one of many Mayans represented by Kelly and Willshire Carrera in cases arising out of the 2007 New Bedford factory raid.