This case involves how immigration agencies should assess whether an asylum seeker’s past harm arises to the level of persecution as a matter of law.  The ACLU-NH filed an amicus brief in support of the Petitioner on August 31, 2022. 

Here, as argued in the amicus brief, the agencies erred when they concluded that Petitioner’s past persecution in the form of racial discrimination in school was not sufficiently severe under the Immigrational Nationality Act because Petitioner still completed her education. This cursory conclusion ignores the reality that, just because a victim has endeavored to overcome persecution in some way (in this case, by still completing her education), this ability to cope does not negate the fact that persecution occurred or was severe.  It is obvious that victims, including children, wrestle with their trauma in dramatically different ways. Some struggle with maintaining personal and professional relationships by engaging in isolation and withdrawal.  Others find coping mechanisms to function in society through strength of will. Others fall somewhere in between, with these coping mechanisms often evolving throughout the stages of life. These varying responses reflect the complexity of human beings more broadly and how they respond to, and process, trauma.  Applying these principles, in assessing a child victim’s past persecution—particularly threats and psychological harm—agencies must be mindful of each victim’s variations in psychological make-up. This is because each victim will react differently when confronted with persecution. Because of this complexity, the agencies must not jump to the conclusion that a child victim’s past harm was not severe enough simply because the victim persevered in some aspect of life. Rather, the agencies must meaningfully and holistically consider the effects of the past suffering and how the victim coped with the trauma. 

In this case, the agencies ignored these complexities and, instead, adopted a simplistic (and erroneous) view that, just because Petitioner had completed her education despite her persecution, this means that the persecution she suffered was not severe.  Because of this error, the ACLU-NH asks the First Circuit to vacate the BIA decision and remand for reconsideration of Petitioner’s past persecution.


Gilles Bissonnette, ACLU-NH Legal Director, and SangYeob Kim, Staff Attorney

Date filed

August 31, 2022


First Circuit Court of Appeals



Case number