FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO HERNANDEZ-ORTIZ; 

FLORENTINO HERNANDEZ-ORTIZ, No. 04-71509

Petitioners, Agency Nos.

v.  A76-346-033

A76-346-038 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 20, 2007—San Francisco, California

Filed August 8, 2007

Before: John T. Noonan, Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Noonan

9461
COUNSEL

Todd Pickles, San Francisco, California, for the petitioners. 

Blair O’Connor, United States Department of Justice, Washington, D.C., for the respondent. 

OPINION

NOONAN, Circuit Judge: 

Guillermo Hernandez-Ortiz (Guillermo) and his younger

brother, Florentino Hernandez-Ortiz (Florentino), petition for

review of a decision of the Board of Immigration Appeals (the

Board) affirming without opinion a decision of an Immigration Judge (the IJ) denying their requests for asylum and withholding of removal. As the Board’s affirmance was summary,

we review the decision of the IJ. Acosta v. Gonzales, 439 F.3d

550, 552 (9th Cir. 2006). Holding that the IJ erred as a matter

of law, we grant the petition and remand. 

FACTS AND PROCEEDINGS

Guillermo and Florentino are natives of Guatemala and are

of Mayan descent. They entered the United States from Mexico without documentation in 1991. Florentino applied for

asylum on December 5, 1997, Guillermo on February 18,

1998. In 2000, the IJ consolidated their petitions. Evidentiary

hearings followed on July 12, 2000, on November 30, 2001,

and on September 12, 2002. The brothers submitted numerous

documents on country conditions in Guatemala, including the

report from the commission established by the Oslo Accord

of June 23, 1994 (Comision para el Esclarecimiento Historico

or CEH). These background documents were accepted into

evidence. The brothers testified to the following events: 

HERNANDEZ-ORTIZ v. GONZALES 9463
In 1982, the two brothers, then aged nine and seven respectively, lived in Gracias a Dios, a village of about 500 families

in the northern part of the department of Huehuetenango,

Guatemala. The village was inhabited almost exclusively by

Mayan Indians. The brothers’ parents were Tomas

Hernandez-Perez and Tiburcia Ortiz Enriquez and their older

brother, who was in his twenties, was named Humberto. The

family lived on corn and beans that they planted and raised on

land they owned about 40 minutes walking time distant from

the village. In 1982, their lives were disrupted by the arrival

of the Guatemalan army in Gracias a Dios. 

“[A] lot” of soldiers came into the village. They carried

weapons. They permitted no one to leave the village even to

tend to their crops outside the village. The boys’ parents were

afraid of the soldiers and would not let the boys go outdoors.

Humberto, the older brother, was called by the soldiers to

serve in a civil patrol hunting guerillas; he fled, and the soldiers told the brothers’ father that he would be killed if he

didn’t find Humberto. The soldiers came in the night and beat

the boys’ father in front of their mother and took him away.

He returned and the family fled to the mountains. A week

later they crossed the border to Mexico and took shelter in a

refugee camp in Chiapas called La Gloria. While they were

there, they learned from a Mexican official that the Guatemalan army had killed Humberto. Each brother feared to return

to Guatemala lest he be regarded as a sympathizer with the

guerillas and killed by the army. 

The brothers’ testimony was supplemented by that of Jaime

Ross, a psychotherapist practicing in Mountain View, California, who submitted an evaluation of the brothers after he had

interviewed them for three hours in 1999. His report is part of

the record. Dr. Ross found that the brothers had “rather

intense” symptoms of trauma from being driven out of their

home country and losing their brother. Florentino appeared to

him to be more deeply affected than Guillermo; both were

“very traumatized.” 

9464 HERNANDEZ-ORTIZ v. GONZALES
At the hearing of September 12, 2002, Florentino corrected

his earlier testimony in which he’d said he’d never left the

United States. He now testified that he had once gone to Mexico to visit his parents at La Gloria; he returned to this country

giving an alias; he was not permitted to enter; he tried again

and succeeded in walking across the border. He concealed his

trip from Guillermo because Guillermo had told him not to

leave. Florentino’s own misstatements to the IJ when first

questioned had been, he said, to continue this deception of his

brother. 

At the conclusion of this session, the IJ gave her final decision orally, denying the brothers’ requests for relief. Appeals

to the Board and then to us followed. 

ANALYSIS

[1] Legal Error. In 2004, Joel Flaum, then Chief Judge of

the Seventh Circuit, summed up the law:

[A]ge 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.

The Guidelines for Children’s Asylum Claims

advises that “harm a child fears or has suffered . . .

may be relatively less than that of an adult and still

qualify as persecution.” See Guidelines for Children’s Asylum Claims, INS Policy and Procedural

Memorandum from Jack Weiss, Acting Director,

Office of International Affairs to Asylum Officers,

Immigration Officers, and Headquarters Coordinators (Asylum and Refugees) 14, (Dec. 10, 1998),

available at 1998 WL 34032561. Indeed, other

courts have used age as a determinative factor in

deciding whether an applicant is eligible for asylum.

See, e.g., Abay v. Ashcroft, 368 F.3d 634, 640 (6th

Cir. 2004) (overturning, on the basis of age, the

HERNANDEZ-ORTIZ v. GONZALES 9465
immigration judge’s finding that a nine-year-old

applicant had not adequately expressed a fear of

future persecution). 

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

In 2006, a per curiam opinion of the Second Circuit

addressed the asylum petition of a native of Guatemala of

Mayan stock who, at the age of seven, had lived in a village

invaded by the Guatemalan army. Jorge-Tzoc v. Gonzales,

435 F.3d 146, 147-48. His sister, his brother-in-law, and his

brother-in-law’s mother were shot. Id. The child did not see

the killings but heard of them. See id. The court took into

account the report of the CEH, written “to clarify with objectivity . . . the human rights violations and acts of violence

connected with the armed confrontation.” Id. at 149 (citation

omitted). The report stated that the violence of the army was

aimed at a particular social group, the Mayans. Id. The court

quoted from the report:

[S]tate forces and related paramilitary groups were

responsible for 93% of the violations documented by

the CEH, including 92% of the arbitrary executions

and 91% of forced disappearances . . . [T]hroughout

the armed confrontation the Army designed and

implemented a strategy to provoke terror in the population [which] became the core element of the

Army’s operations, including those of a strictly military nature as well [as] those of psychological nature

and those that were called “development” operations. 

. . . Jorge-Tzoc was a child at the time of the massacres and thus necessarily dependent on both his family and his community . . . Further, while the family

remained in their village, Jorge-Tzoc’s mother was

afraid to go out of their home to obtain needed groceries . . . Jorge-Tzoc’s father lost his land and his

9466 HERNANDEZ-ORTIZ v. GONZALES
animals as a result of [their eventual] move. This

combination of circumstances could well constitute

persecution to a small child totally dependent on his

family and community. 

Id. at 150. 

[2] Against the background of ethnic cleansing, the court

quoted with approval the summary of the law made by Judge

Flaum in Liu and concluded that it was legal error for the IJ

not to have considered the events in the village and the harm

suffered by Jorge-Tzoc’s family “from the perspective of a

small child.” Id. The IJ’s finding that Jorge-Tzoc did not

establish past persecution was vacated and the case remanded.

Id. at 151. 

[3] 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 have already quoted with

approval the INS Guidelines for Children’s Asylum Claims

referenced above. Zhang v. Gonzales, 408 F.3d 1239, 1247

(9th Cir. 2005). We now join the Second, Sixth, and Seventh

Circuits in affirming the legal rule that injuries to a family

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. 

[4] The rule we articulate for this circuit is new but the

principle is old. The three circuit cases reflect this common

sense proposition. The IJ did acknowledge the ages at which

Guillermo and Florentino experienced the injuries to which

they testified. The IJ, however, did not look at the events from

their perspective, nor measure the degree of their injuries by

their impact on children of their ages. She committed legal

error. 

HERNANDEZ-ORTIZ v. GONZALES 9467
[5] Credibility. The IJ focused her attention on misrepresentations made by Florentino in connection with his search

for his parents in Chiapas. The relevance of this trip and the

misrepresentations is hard to see. The IJ herself raised the

question whether Florentino’s misstatements were material.

They were not. See Singh v. Ashcroft, 367 F.3d 1139, 1143

(9th Cir. 2004) (“minor inconsistencies or factual omissions

that do not go to the heart of the asylum claim are insufficient

to support [an adverse credibility finding]”). 

Florentino’s shaky dating of his trip and his communications with his parents furnished the IJ with a reason to question Guillermo’s dating of a telephone call to their parents in

which he learned the whereabouts of “Comandante Hernandez.” The IJ supposed that because Florentino failed to

find his parents at La Gloria during his 1997 trip, the 1998

phone conversation between the brothers and their parents

was an “impossibility.” However, it is not clear that the parents were not in La Gloria in 1998, only that Florentino could

not find them in 1997. 

[6] The IJ’s credibility findings, we are compelled to conclude, are not supported by substantial evidence. See Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001). 

The IJ’s Alternative Analysis and Findings. Aware of the

fragility of her findings on credibility, the IJ offered what she

styled “Alternative Analysis and Findings of Law.” In this

analysis she accepted the brothers’ testimony as to the events

in their village in 1982, but asked whether they had a fear of

persecution if returned. “The first question” she addressed

was whether they had suffered past harm rising to the level of

the past persecution. The IJ found this question “very, very

difficult.” As in her credibility determination, the IJ did not

take into consideration the age of the brothers in 1982. The

legal error infected her conclusion that the brothers failed to

meet their burden of proof as to whether they were subjected

to past persecution. 

9468 HERNANDEZ-ORTIZ v. GONZALES
[7] For the reasons stated, the petition is GRANTED. The

IJ’s decision is VACATED and the case REMANDED for

further consideration of the petitioners’ claims for asylum and

withholding of removal. 

GRANTED VACATED AND REMANDED.

HERNANDEZ-ORTIZ v. GONZALES 9469