The U.S. Court of Appeals for the First Circuit has granted a rehearing in Mejilla-Romero v. Holder, vacating its original published decision denying a child asylum applicant’s petition for review. The order granting rehearing now directs the Board of Immigration Appeals to address the special treatment of child asylum applicants as set forth in guidelines issued by the Department of Homeland Security, the Department of Justice, and the United Nation High Commission for Refugees.

The order represents a major victory for the Harvard Clinic at Greater Boston Legal Services and the Harvard Immigration and Refugee Clinical Program at Harvard Law School (HIRC).

The Harvard Clinic at GBLS represented the child asylum applicant, Selvin Asael Mejilla-Romero, a Guatemalan boy who had escaped targeted brutalization and death threats on account of his resistance to gang recruitment and his family’s background and political beliefs.  He came to the United States at 10-years-old and later testified at a merits hearing before the Immigration Court at the age of thirteen.  The Immigration Judge denied the boy’s claim, and in April 2010, a three-judge panel of the First Circuit denied the boy’s petition for review.

But in a petition for rehearing filed June 21, the clinic urged the First Circuit to vacate the panel decision, arguing that the BIA, IJ, and First Circuit panel had committed legal error by failing to afford child-sensitive treatment to the petitioner’s claim.  HIRC filed an amicus brief in support of the petition.

The First Circuit panel granted the rehearing petition on August 6, 2010, explicitly directing the BIA to consider arguments regarding “the Guidelines’ child-sensitive approach” and errors caused by the agency’s “failure to follow the Guidelines.”

Praising the First Circuit decision, John Willshire Carrera, co-manager of the Greater Boston Legal Services Clinic and the child petitioner’s lawyer, remarked, “In this case, we asked the Court to recognize the unique situation of children seeking asylum before the courts.”

Professor Deborah Anker, director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School, said: “The court’s unusual step in vacating its prior published decision is a real tribute to the students and attorneys who worked so hard on behalf of their client.  I am proud that the Clinic has helped to advance U.S. asylum law, ensuring that children seeking asylum protection in our country are treated with respect for their basic human dignity, and that adjudicators consider their special situations and needs, as required by domestic and international law.”

Nancy Kelly, co-manager of the Clinic at Greater Boston Legal Services, added: “We are extremely pleased that the Circuit recognized the importance of the principles expressed in Children’s Guidelines issued by the UNHCR, the DHS and the DOJ.  For Selvin, the Court’s decision means that his claim has finally been heard and that, after many years, he has real reason to believe that he will not be returned to the hands of his persecutors. For the other children we all represent, we believe that this decision will open the door to the development of clear child-sensitive jurisprudence in the First Circuit.”

HIRC is a collaborative project between Harvard Law School and Greater Boston Legal Services.  HIRC is directed by Professor Anker.  HIRC involves students in the direct representation of victims of human rights abuses in applying for U.S. refugee and related protections.

Greater Boston Legal Services is the oldest and largest legal services program in New England, serving over 10,000 clients annually.  The Immigration Unit at GBLS focuses on direct representation of individuals applying for U.S. asylum and related relief as well as representation of individuals who have survived domestic violence and other crimes or who seek avoidance of forced removal in immigration proceedings.