Olmos-Colaj v. Sessions , 886 F.3d 168 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2388
Yolanda OLMOS-COLAJ and CONSUELO OLMOS-COLAJ,
Petitioners,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Ondine G. Sniffin and The Law Office of Ondine G. Sniffin,
for petitioners.
Robert Michael Stalzer, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
with whom Chad A. Readler, Acting Assistant Attorney General, and
Julie M. Iversen, Senior Litigation Counsel, were on brief for
respondent.
March 29, 2018
STAHL, Circuit Judge. The petitioners, Yolanda Olmos-
Colaj ("Yolanda") and Consuelo Olmos-Colaj ("Consuelo"), natives
and citizens of Guatemala, seek review of the denial of their
applications for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). An Immigration Judge
("IJ") found petitioners' asylum applications to be untimely
filed. The IJ also found that petitioners failed to carry their
burden of proof with respect to their withholding of removal and
CAT claims. The Board of Immigration Appeals ("BIA") adopted and
affirmed the IJ's decision. We deny the petition for review.
I. Background
Consuelo and Yolanda, sisters and citizens of Guatemala,
are members of an indigenous Mayan group called the Quiché.
Consuelo entered the United States in 2000, followed by Yolanda in
2002. Both relocated to New Bedford, Massachusetts, and lived in
a community with other indigenous Quiché people.
On March 7, 2007, after an immigration raid on their
place of employment, the Department of Homeland Security ("DHS")
initiated removal proceedings against Consuelo and Yolanda. Both
conceded removability and with the assistance of counsel, filed
for asylum, withholding of removal, and relief under the CAT. On
their I-589 forms, petitioners stated that they had not been aware
of the filing deadlines for asylum applications.
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On May 12, 2010, with the assistance of new counsel,
petitioners filed revised I-589 forms. Consuelo's updated form
indicated that she failed to file a timely application for asylum
because she was "too afraid to ask for anything when I arrived. I
didn't know asylum was an option for me and I certainly wasn't
aware of the deadline."
In 2015, the IJ held a three-day hearing to allow
petitioners to present their case. Consuelo, Yolanda, and Dr.
Robert P. Marlin testified at the hearing. Consuelo and Yolanda's
psychologist, Dr. Jessica Boyatt, was unavailable to testify, but
the IJ accepted her written psychological evaluations into
evidence without objection.
The testimony encompassed the following: the Guatemalan
Civil War occurred during petitioners' childhood. Although no
immediate members of their family were harmed, petitioners'
"distant uncle" was murdered and their aunt and a cousin were
raped. As a result of the level of violence, as well as threats
made against petitioners' father, petitioners' mother decided to
move the family to Santa Cruz. Petitioners' father remained in
San Andrés to run his business.
Petitioners testified that they had a difficult life in
Santa Cruz without their father. Non-indigenous people often
discriminated against petitioners, calling them by the name
"Trixie" -- an indigenous word for servant.
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In Santa Cruz, Consuelo and her mother helped other
indigenous women who were being abused by their employers. She
explained that "[t]he police would come with Consuelo and her
mother to help the women out, making the women's bosses pay them
what was owed."
After attending school in Santa Cruz, Consuelo opened up
a store of her own and hired Yolanda as an employee. Occasionally,
people would throw rocks at the store and demand to know why an
indigenous woman was running a business. Consuelo did not report
the incidents to the police because she had no proof of the
mistreatment. Consuelo testified that one day, members of the
Barrio Norte gang, whom Yolanda referred to as "Ladinos," took
some items from the store and refused to pay. One of the gang
members hit Consuelo in the head with a rock -- she needed stiches
for the wound, and a resulting scar was still visible at her
hearing before the IJ. The gang also threatened to kill Consuelo
if she did not learn her place. Petitioners reported the incident
to the police and several of the gang members were arrested. After
receiving threats against her life, Consuelo decided not to testify
against her attackers and therefore, the men were released from
custody.
In 1999, shortly after the incident with the gang,
Consuelo closed her store and began teaching for an organization
that traveled to native Quiché areas. Subsequently, on one
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occasion while on her way to work, Consuelo was attacked by two
unknown men. They grabbed her from behind and ripped her shirt.
The men ran away when they heard other teachers approaching.
Consuelo explained that she did not report the attack to the police
because she did not have proof. A month after this attack, she
stopped working as a teacher.
Consuelo testified that she came to the United States in
2000 because of the threats and humiliation she faced in Guatemala.
She did not come earlier because her child was born in 1999. Her
first boss in the United States treated her and the other employees
poorly. He would make degrading comments about their undocumented
status.
Yolanda testified that after Consuelo closed her store,
she could not study anymore because Consuelo was her only support
system. "The insults Yolanda received at school also influenced
her to end her studies." After Yolanda and her then boyfriend,
now husband, had a baby, they moved to Patzite and then to Jutiapa
to live with her boyfriend's family. While visiting Santa Cruz
for a festival in 2001, a "man grabbed Yolanda by the side and
told her that he finally found her and that he did not forget that
she sent him to jail." The other people around Yolanda were able
to convince the man that she was not Consuelo. Yolanda told
Consuelo about the incident over the phone and Consuelo told
Yolanda that she should come to the United States. Because Yolanda
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was breastfeeding her child at the time, she did not leave
Guatemala right away.
In 2002, Yolanda, leaving her child behind, came to the
United States and joined her sister in New Bedford, Massachusetts.
She obtained a fake green card and social security card from a
coyote. When Yolanda arrived, she was very sick, but explained
that she did not go to a doctor because she was "avoiding
immigration."
Yolanda and Consuelo testified that they filed for
asylum after DHS officers arrested all of the illegal workers in
the factory where they were employed. Consuelo testified that
"she waited seven years to file her application because she was
traumatized when she first arrived . . . . She did not speak
English and the people she lived with when she first arrived did
not know anything about asylum. . . . She was crying all of the
time because she left her very small child back in Guatemala."
Yolanda testified that she did not file her asylum application
until 2007 because "she did not know she could apply for asylum
until she was arrested."
Petitioners testified that several members of their
family remain in Guatemala. Petitioners' mother is a homemaker,
and their brother is a retired teacher and receives a pension from
the Guatemalan government. Yolanda's daughter is currently
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fifteen years old and lives in Guatemala with petitioners' brother.
She attends a private school and Yolanda pays for her tuition.
In denying petitioners' applications for relief, the IJ
determined that petitioners were credible "regarding the factual
basis of their asylum claims." However, the IJ expressed "serious
doubts about Consuelo's most recent explanation as to why she filed
her asylum application approximately seven years after her
arrival." At the hearing, Consuelo testified that she waited so
long because "she did not have the right mindset at the time as
she was traumatized from the things that happened to her in
Guatemala." However, the IJ compared this testimony to Consuelo's
original I-589 form from 2007, where she stated, "I was not aware
of the filing deadlines" and to Consuelo's amended I-589 form from
2010, where she stated, "I was very afraid by what had happened to
me and I didn't know I could ask for asylum." Based on these
responses, the IJ determined that "Consuelo's testimony with
respect to her reasons for missing the filing deadline was not
credible."
The IJ concluded that neither Consuelo nor Yolanda
demonstrated extraordinary circumstances warranting an extension
to the 1-year filing deadline. The IJ stated, "as to both of the
[petitioners], the Court cannot ignore the reality that the evasive
nature of the [petitioners'] presence in the United States played
a role in their continued ignorance of the filing deadline."
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The IJ determined that in the alternative, even if the
late filing were excused, petitioners' asylum applications would
still be denied. As to petitioners' claims of past persecution,
the IJ found that the only two instances of harm presented -- their
relocation as children and the attack on Consuelo in her store --
were not severe enough or with sufficient regularity to rise to
the level of persecution. The IJ also found that any harm suffered
by Consuelo and Yolanda at the store was not the result of
government action or inaction because the police were willing to
assist Consuelo and in fact, had helped Consuelo and her mother to
aid other indigenous women when their employers mistreated them.
Moreover, the IJ found that Consuelo and Yolanda did not
establish a well-founded fear of future persecution. The IJ
explained that although their subjective fear was genuine, it was
not objectively reasonable. The IJ explained that the last of the
threats took place some fourteen years ago, and the petitioners
had presented no evidence as to whether their attackers were still
alive or that they continued to hold a grudge. Furthermore, the
IJ described how petitioners' mother and brother live peacefully
in Guatemala.1
1The IJ also found that Consuelo and Yolanda did not establish
a "pattern-or-practice" claim because the "most current Country
Reports reveal that violence in Guatemala is largely
indiscriminate and that gangs do not necessarily target any
particular social group."
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Having found that Consuelo and Yolanda failed on their
asylum claims, the IJ found that they could not prevail on their
claims for withholding of removal or protection under the CAT.
On appeal, the BIA determined that the petitioners were
not denied due process by the IJ. The BIA affirmed the IJ's
decision, concurring with the IJ's finding that petitioners did
not present extraordinary circumstances warranting an extension to
the asylum filing requirements. The BIA also found that the IJ
did not clearly err in the alternative findings that the
petitioners failed to demonstrate past persecution, a well-founded
fear of future persecution, or government inaction. As such, the
BIA affirmed the IJ's denial of petitioners' asylum and withholding
of removal claims, and protection under the CAT.
II. Analysis
Consuelo and Yolanda petition for review of the BIA's
decision upholding the IJ's denial of their applications for
asylum, withholding of removal, and protection under the CAT.
First, petitioners claim that the IJ denied them due process and
a fair hearing because he was biased and prevented them from
presenting expert testimony. Second, petitioners claim that they
established extraordinary circumstances excusing their late asylum
application filing. Finally, they argue that they demonstrated
both a past and future fear of persecution, as well as government
inaction. We address each claim in turn.
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A. Due Process
Petitioners argue that the IJ compromised the fundamental
fairness of the hearing by preventing petitioners' expert witness
from testifying and by exhibiting bias. "We review the question
of whether an [IJ's] conduct violates a party's due process rights
de novo." Aguilar-Solis v. I.N.S., 168 F.3d 565, 568 (1st Cir.
1999).
With respect to petitioners' claim that the IJ refused
to hear testimony from their expert witness, first, the IJ has a
right to run a trial as he/she sees fit. See Albathani v. I.N.S.,
318 F.3d 365, 375 (1st Cir. 2003) ("[T]he IJ's attempts to expedite
proceedings are not the stuff of which a due process violation can
be fashioned.") (internal quotation marks omitted). Second,
petitioners have waived this issue. On the final day of the
hearing, Dr. Bayatt was only available between noon and 1:00 p.m.
Given that the hearing had already taken three days, and Dr.
Bayatt's availability did not correspond with the regular hearing
schedule of the court, the IJ proposed to accept an offer of proof
that Dr. Bayatt would testify consistently with her written
reports, which were included in the record. Petitioners' counsel
acquiesced in the IJ's proposal.
As to petitioners' claim that the IJ exhibited bias by
"excessive commentary about time and expediency," the Supreme
Court has held that "expressions of impatience, dissatisfaction,
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annoyance, and even anger," do not amount to bias. Liteky v.
United States, 510 U.S. 540, 555–56, (1994). Petitioners' counsel
represented to the IJ that the hearing would last, in total,
approximately three hours. Thus, the IJ's frustration with a
hearing that went on for three days was not without reason.
Furthermore, despite the IJ's frustration, he clearly told the
petitioners that "you can take as much time as you want." While
the IJ warned the petitioners about the practical implications of
the delay, specifically, that he was unsure about scheduling moving
forward, the IJ also told petitioners' counsel that he was not
trying to "cut down the amount of time" she spent with her clients.
The BIA correctly determined that petitioners had an "ample
opportunity to testify and present their case," as such, the IJ
did not violate petitioners' due process rights.
B. Asylum Filing
An asylum seeker must "demonstrate[] by clear and
convincing evidence that the application [was] filed within 1 year
after the date of the alien's arrival in the United States." 8
U.S.C. § 1158(a)(2)(B). If the 1-year filing requirement is not
met, the government may consider an application "if the alien
demonstrates . . . extraordinary circumstances relating to the
delay in filing an application." 8 U.S.C. § 1158(a)(2)(D); see
also Silva v. Gonzales, 463 F.3d 68, 71 (1st Cir. 2006).
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Petitioners concede that they untimely filed their
asylum applications,2 but claim that they fall within the
"extraordinary circumstances" exception. Petitioners argue that
the IJ failed to credit evidence from their expert witness
concerning how their psychological conditions affected their
ability to timely file their asylum applications.
We do not have jurisdiction to review petitioners'
challenge to this portion of the BIA's decision. This Court lacks
"jurisdiction to review [an] agency's findings regarding
timeliness or its application of the 'extraordinary circumstances'
exception, 8 U.S.C. § 1158(a)(3), unless an alien identifies a
legal or constitutional defect in the decision." Hana v. Gonzales,
503 F.3d 39, 42 (1st Cir. 2007). A constitutional defect challenge
cannot be "a disguised challenge to factual findings." Pan v.
Gonzales, 489 F.3d 80, 84 (1st Cir. 2007).
Here, the IJ found that neither petitioner qualified for
the "extraordinary circumstances" exception to the 1-year filing
deadline. Insomuch as this determination was made based on the
IJ's credibility assessment of Consuelo, that determination is a
finding of fact, and there is no basis by which we can review
petitioners' claim. See Hana, 503 F.3d at 42. Likewise,
2Petitioners did not file their applications for asylum until
2007, more than six years after Consuelo entered the United States
in 2000, and more than four years after Yolanda entered the United
States in 2002.
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petitioners' assertion that the IJ's decision not to have their
expert testify resulted in a due process violation, is to no avail.
As discussed above, the IJ's assessment of this issue did not
violate petitioners' due process rights. Therefore, we affirm the
BIA's decision upholding the IJ's decision to deny petitioners'
applications for asylum.
C. Withholding of Removal
Petitioners make a variety of arguments in their
petition for review challenging the IJ and BIA's assessment of the
asylum factors. Because we find that petitioners cannot succeed
on their asylum claim based on the jurisdictional bar described
above, we consider petitioners' arguments only for purposes of
analyzing their withholding of removal claim. See Pan, 489 F.3d
at 85 ("[T]he asylum and withholding of removal analyses are
sufficiently analogous that we may treat the IJ's findings of raw
fact on the asylum claim as transferable in large part to the
withholding of removal claim."). Petitioners' most relevant
argument for purposes of this petition is that the BIA erred in
upholding the IJ's finding that petitioners failed to demonstrate
that they suffered past persecution or had a well-founded fear of
future persecution.
Whereas here, the BIA agreed with the IJ's findings and
conclusions, but added its own discussion, this Court reviews both
decisions. See Arias-Minaya v. Holder, 779 F.3d 49, 52 (1st Cir.
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2015) ("Because the BIA adopted and affirmed the IJ's decision yet
supplied its own gloss, we review the tiered decisions as a
unit."). We review administrative findings of fact under the
deferential substantial evidence standard of review. Matovu v.
Holder, 577 F.3d 383, 386 (1st Cir. 2009). We must uphold the
BIA's decision "unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
"[W]ithholding of removal requires a higher likelihood
of persecution than asylum." Aguilar-Escoto v. Sessions, 874 F.3d
334, 337 (1st Cir. 2017). "To obtain withholding of removal, an
applicant must prove that upon return to his home country, he is
more likely than not to face persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion." Silva, 463 F.3d at 72 (internal quotation
marks omitted). As in a claim for asylum, an alien can demonstrate
eligibility for relief by showing either that:
(i) he has suffered past persecution on account of a
statutorily protected ground, thus creating a rebuttable
presumption that he may suffer future persecution if
repatriated, or (ii) that it is more likely than not
that he will be persecuted on account of a protected
ground upon his return to his native land.
Lopez-Castro v. Holder, 577 F.3d 49, 52 (1st Cir. 2009) (internal
quotation marks omitted).
"A petitioner must . . . show that the persecution is
the direct result of government action, government-supported
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action, or government's unwillingness or inability to control
private conduct." Ly v. Mukasey, 524 F.3d 126, 132 (1st Cir. 2008)
(internal quotation marks omitted); see also Arevalo-Giron v.
Holder, 667 F.3d 79, 83 (1st Cir. 2012)(same). Petitioners claim
that "[p]ervasive discrimination exists in all aspects of
Guatemalan society [and that] [t]he government cannot protect Ms.
Yolanda and Ms. Consuelo." However, substantial evidence supports
the BIA's finding that petitioners "did not show that the
government of Guatemala condoned the actions of the people that
mistreated [petitioners] or that the Guatemalan government is
unable or unwilling to protect [petitioners] from the people that
they fear."
As to the harm suffered by petitioners in their past, in
every instance in which petitioners sought help, the police
responded to and assisted the petitioners. The record demonstrates
that Consuelo and her mother used police assistance to help other
indigenous women in their community. Likewise, after the attack
on Consuelo in her store, the government attempted to prosecute
the men who attacked her. While it is true that these men were
released when Consuelo decided not to testify, the BIA correctly
explained that the petitioner's decision to "forego prosecuting
the people that harmed her because she feared retaliation by the
perpetrators is not sufficient to show that the Guatemalan
government is unable or unwilling to protect her." As for Yolanda,
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she did not seek police assistance after she was threatened by a
man who mistook her for her sister.
As petitioners cannot establish past persecution based
on the lack of connection between any harm suffered and government
action or inaction, petitioners' withholding of removal claim is
dependent on their ability to show "a clear probability of future
persecution." Lopez-Castro, 577 F.3d at 54. In upholding the
IJ's finding that petitioners did not establish a well-founded
fear of future persecution, the BIA explained that "the last
threatening incident [experienced by Yolanda] occurred more than
14 years ago." Petitioners argue that the IJ's decision fails to
account for the "current level of pervasive discrimination that
continues to exist in present-day Guatemala." However, the IJ
found that while petitioners submitted an "abundance of reports
and articles" "summariz[ing] the violence and human rights abuses
that have occurred in Guatemala over the last few decades," "[t]his
evidence, while informative, does not speak to the particular and
individualized fears asserted by [petitioners]." (citing Seng v.
Holder, 584 F.3d 13, 19-20 (1st Cir. 2009)(superseded by statute
on other grounds)). In affirming the IJ's decision, the BIA
explained that petitioners' mother and brother, "who are of the
same ethnicity, continue to live in Guatemala and no harm has
befallen them." The substantial evidence in the record supports
this determination, as such, we must uphold the BIA's decision.
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This leaves only the petitioners' claim for protection
under the CAT. However, because petitioners have failed to brief
this argument in their petition for review, the argument is waived.
See Jiang v. Gonzales, 474 F.3d 25, 32 (1st Cir. 2007) ("It is
settled beyond peradventure that theories advanced in skeletal
form, unaccompanied by developed argumentation, are deemed
abandoned.").
The dissent spends many pages discussing the
inadequacies of the IJ's and BIA's decisions. The IJ's twenty-
nine page opinion more than adequately considered the arguments
raised by the dissent. After a hearing that lasted three days,
the IJ made the necessary findings based on the evidence presented.
The BIA affirmed that decision, noting the relevant portions of
the IJ's decision as it considered each and every issue raised on
appeal. We again emphasize that we consider the petition for
review under the substantial evidence standard. While the dissent
acknowledges that the standard applies, as do all the parties to
the action, it fails to consider that standard in presenting its
arguments.
III. Conclusion
For all the reasons discussed, we deny the petition for
review.
-Concurring and Dissenting Opinion Follows-
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BARRON, Circuit Judge, concurring in part and dissenting
in part. I join the majority in rejecting Yolanda and Consuelo
Olmos-Colaj's petition for review of their asylum and Convention
Against Torture claims. In my view, however, we should vacate and
remand the petition so that the Board of Immigration Appeals (BIA)
may reconsider the petitioners' withholding of removal claims.
The BIA, without adopting the decision of the
Immigration Judge (IJ), determined, among other things, that the
IJ did not clearly err when it found that the petitioners had
failed to meet their burden to show that they had experienced past
persecution and that, in consequence, the petitioners were not
entitled to a presumption of having a well-founded fear of future
persecution. Accordingly, neither the BIA nor the IJ addressed
whether, if the petitioners were entitled to that presumption,
their withholding of removal claims should be denied.
The parties agree that we may uphold the IJ's finding
that the petitioners did not meet their burden of showing that
they had experienced past persecution -- and thus the BIA's ruling
upholding that finding by the IJ -- only if the IJ's finding is
supported by substantial evidence on the record as a whole.3 But,
3 We explained in Lin v. Mukasey, 521 F.3d 22 (1st Cir. 2008),
that, when the BIA determines that the IJ did not clearly err in
making a finding without actually adopting the IJ's decision as
its own, we potentially face a somewhat "metaphysical" question.
Id. at 26 n.1. Do we review (presumably de novo) the BIA's legal
conclusion that the IJ did not clearly err? Or do we review for
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as I will explain, I do not believe that finding is sustainable on
this record, even under the deferential substantial evidence
standard. I thus conclude that the petition must be vacated and
remanded so that the BIA may give further consideration to those
issues concerning the petitioners' withholding of removal claims
that the agency has not yet addressed.
I.
To show that they are entitled to a presumption that
they have a well-founded fear of future persecution based on their
past persecution, the petitioners point to painful experiences
that they endured as children during the Guatemalan Civil War and
that they suffered as adults in Guatemala after that civil war
ended. I thus now consider this evidence, which the IJ found to
be credible.
A.
We have recognized that, during the Guatemalan Civil
War, "Mayan communities . . . became a military objective."
Ordonez-Quino v. Holder, 760 F.3d 80, 89 (1st Cir. 2014) (internal
substantial evidence the "underlying findings of facts
themselves"? Id. But, we had no occasion to resolve that fine
question of administrative law in Lin. See id. And we have no
need to do so here either, as the parties agree that we should
review the IJ's determination that the petitioners failed to meet
their burden of showing past persecution for substantial evidence.
Accordingly, like the parties, I focus on whether substantial
evidence supports the IJ's finding that the petitioners failed to
meet their burden to show past persecution.
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citations and alterations omitted); see also Perez Calmo v.
Mukasey, 267 F. App'x 640, 641 (9th Cir. 2008) ("Mayans, as a
group, were identified by the Guatemalan army as guerrilla allies
and were targeted for extinction." (internal citation omitted)).
And, here, the uncontradicted record shows that the petitioners,
who are members of a Mayan ethnic group known as the Quiché, were
displaced from their home during the war due to concerns for their
safety after, also during the war, a number of aunts, uncles, and
cousins were either killed, raped, or tortured and their father
was forced to flee from their village.
It is true that, as the IJ noted, these petitioners,
unlike the petitioner in Ordonez-Quino, were not themselves
physically injured in the civil war and did not themselves
personally view others being so injured, see 760 F.3d at 91-92.
But, the petitioners rightly point out that we held in Ordonez-
Quino that "[w]here the events that form the basis of a past
persecution claim were perceived when the petitioner was a child,
the fact-finder must 'look at the events from [the child's]
perspective, [and] measure the degree of [his] injuries by their
impact on [a child] of [his] age.'" Id. at 91 (quoting Hernandez-
Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (alterations
in original)). And, we further emphasized in Ordonez-Quino that
the BIA must take the "harms [a child's] family suffered into
account" and consider them "from the perspective of a child" in
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determining whether those childhood experiences amounted to
persecution. Id. at 92. Nor are we unique in adopting this
context-sensitive approach to assessing whether childhood wartime
experiences amount to persecution. See Jorge-Tzoc v. Gonzales,
435 F.3d 146, 150 (2d Cir. 2006) (concluding that where the
petitioner had not personally been "victimized" by the killings
that occurred in the course of a massacre in his Mayan village
during the Guatemalan Civil War, "[b]ecause the IJ failed to take
into account significant evidence and to address the harms [the
petitioner] and his family incurred cumulatively and from the
perspective of a small child," the BIA's finding on past
persecution was not sustainable on a record that showed, among
things, that the petitioner had been forced to relocate with his
family due to the wartime violence in his village).
Thus, although the majority does not address this issue,
in my view, the IJ erred by concluding, in effect, that the harm
that the petitioners suffered during the civil war was too slight
to constitute persecution because the petitioners did not endure
harm as severe as that endured by the petitioner in Ordonez-Quino
during that same war. We simply did not hold in Ordonez-Quino
that the extreme harm suffered by the petitioner there constituted
a threshold of wartime childhood trauma that must be met. And I
cannot see how substantial evidence supports the conclusion that
the traumatizing wartime experiences that the petitioners did
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credibly recount, which included their family's forced relocation
to escape the extreme violence visited upon a number of close
family members, would not engender in a child, at least
presumptively, a well-founded fear of being persecuted in
Guatemala in the future.
Of course, the harm that the petitioners suffered during
the war must still have a nexus to their Quiché ethnicity. It is
their membership in that "social group," after all, that grounds
their past persecution claim. And the IJ did state in a somewhat
cryptic footnote that the harm that the petitioners suffered as
children during the war was "attenuated" from their asserted
protected identity. The IJ did not, however, appear to retreat in
any clear way from its statement earlier in its opinion that it
assumed "that the [petitioners] have established a sufficient
nexus between the mistreatment that they suffered in Guatemala and
their identity as indigenous Mayan women." Accordingly, I read
the IJ -- and thus the BIA in finding that the IJ did not clearly
err4 -- to have assumed that the petitioners had satisfied the
4 The BIA issued a blanket ruling affirming the IJ's
conclusion that the petitioners did not meet their burden to show
that their past experiences rose to the level of persecution
without separately discussing the petitioners' allegations of
mistreatment as, respectively, children and adults. In issuing
that blanket ruling, moreover, the BIA offered just one additional
sentence that asserted in conclusory fashion that the harm
described by the petitioners was not severe enough to rise to the
requisite level. The BIA did append to that sentence a long string
cite of supporting citations to our past precedents, but, in doing
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nexus requirement and to have rejected their past persecution
claims based on their childhood experiences only because the harm
they suffered at that time was too slight to rise to the level of
persecution when compared to the harm suffered by the petitioner
in Ordonez-Quino. Nor does the government argue otherwise in its
briefing to us.
In so concluding, I recognize that, to show past
persecution, the petitioners also must show that the harm that
they suffered during the civil war -- even if that harm is severe
enough to constitute persecution and has a nexus to their Quiché
identity -- was attributable to the Guatemalan government. See Ly
v. Mukasey, 524 F.3d 126, 132 (1st Cir. 2008). But neither the IJ
nor the BIA made a finding that the petitioners had failed to make
that showing. Thus, we may not sustain the rulings of the IJ and
the BIA rejecting the petitioners' claims of past persecution as
children on the basis of any such failure on the petitioners' part.
And that is so even if, as the majority concludes, see Maj. Op.
15-18, substantial evidence supports the entirely distinct finding
that the IJ made (and that the BIA affirmed) that the petitioners
so, the BIA did not purport to engage in any meaningful way with
the evidence that the petitioners put forth concerning the severity
of the harm that they did suffer. Accordingly, I focus on the
IJ's ruling as to past persecution, since if that ruling cannot be
sustained as being supported by substantial evidence, then I do
not see how the BIA's ruling that the IJ did not clearly err in
finding that the harm the petitioners experienced was not severe
enough to constitute persecution can be sustained either.
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failed to meet their burden to show that the harm that they
suffered as adults was not attributable to the Guatemalan
government. See Maj. Op. 15. For that finding as to the
responsibility of the Guatemalan government for events that
occurred after the civil war simply does not bear on whether the
government was responsible for events that occurred during the war
itself.
In sum, given the severity of the harm that the
petitioners credibly recounted that they experienced as children
during the civil war, I cannot conclude that substantial evidence
supports the IJ's and the BIA's decisions finding that the harm
that the petitioners suffered -- especially when considered from
a child's perspective -- was too insignificant to amount to past
persecution. And, as the IJ and the BIA offered no other basis on
which we may reject the petitioners' claims that their experiences
as children during the Guatemalan Civil War constituted past
persecution, I thus conclude that, in accord with SEC v. Chenery
Corp., 332 U.S. 194 (1947), and Aldana-Ramos v. Holder, 757 F.3d
9 (1st Cir. 2014), we should remand the petition.
That way, the BIA may consider in the first instance
whether -- given that the petitioners sufficiently demonstrated
that the harm they suffered as children during the civil war was
severe enough to constitute persecution -- the petitioners have
satisfied the nexus requirement with respect to those experiences
- 24 -
and have otherwise shown what they must in order to support their
claims that they suffered past persecution as children. For, if
the petitioners can make a showing of past persecution based on
their childhood experiences in the war, then for purposes of their
withholding of removal claims, "it shall be presumed that the
applicant's life or freedom would be threatened in the future[.]"
8 C.F.R. § 1208.16(b)(1)(i). And, in that event, their withholding
of removal claims may be denied only if the government can show by
a preponderance of the evidence, which the government has not yet
purported to do, "that fundamental changes have occurred that have
removed any threat to an applicant's life or freedom or that
relocation to another part of the proposed country of removal would
be safer and reasonable." Un v. Gonzales, 415 F.3d 205, 208 (1st
Cir. 2005); see 8 C.F.R. § 1208.16(b)(1)(i).
I note in this regard that, as Ordonez-Quino recognized,
the fact that, quite obviously, the civil war in Guatemala has
ended is not in and of itself proof of a change in circumstances
that would suffice to overcome the presumption of a well-founded
fear of future persecution. Ordonez-Quino, 760 F.3d at 93 (noting
that while the "guerrillas had been integrated into the government
after the civil war and no longer engaged in militant activities"
the record contained "significant documentation of ongoing
systemic racism and human rights violations against the Mayan
Quiché community"). Thus, we may not deny the petition for review
- 25 -
with respect to the BIA's and the IJ's rulings rejecting the
petitioners' withholding of removal claims based simply on the
fact that it is clear that the civil war is over.
Moreover, the IJ and the BIA did not address whether, in
the event that the petitioners demonstrated that they had
experienced past persecution and were thus entitled to a
presumption that they have a well-founded fear of future
persecution, the government could overcome that presumption.
Thus, issues concerning whether the government has put forth
sufficient evidence to overcome a presumption of past persecution
to which the petitioners may be entitled should be addressed in
the first instance by the agency on remand, insofar as the agency
concludes that the petitioners have met their burden of showing
past persecution and thus are entitled to that presumption.
B.
I also conclude that we must remand the petition for
further consideration of the sisters' separate contention that
they suffered past persecution as adults and thus are entitled to
withholding of removal. The petitioners credibly recounted that,
while living in Guatemala in the late 1990s, members of a local
gang repeatedly entered the store which Consuelo owned and at which
Yolanda worked and harassed the sisters because of their Quiché
ethnicity. The petitioners also credibly claimed that, one day
during that period, gang members came into the store when both
- 26 -
sisters were present, robbed the store, called the petitioners
ethnic slurs based on their Quiché ethnicity, threatened to kill
Consuelo, and threw a rock at Consuelo's head that struck her.
Consuelo's head injury was serious enough to cause a
"severe hemorrhage." In fact, the resulting scar was still visible
at the hearing before the IJ.
Consuelo and Yolanda reported the incident to the
police, and the perpetrators were arrested. Thereafter, however,
Consuelo received another in-person death threat due to her role
in the gang members' arrest, and she closed the store because of
that threat and dropped the charges.
In 2001, moreover, after Consuelo had already come to
the United States, Yolanda was attacked and threatened at a
festival in Guatemala. The attacker, apparently mistaking Yolanda
for Consuelo, grabbed Yolanda and said, "[t]riche [an ethnic slur
for Quiché], I finally found you . . . . Did you really think that
I was going to forget what you did to me? They sent me to jail
for that." When bystanders informed the attacker that the woman
that he had grabbed was Yolanda, not Consuelo, the attacker told
Yolanda:
[Y]ou're going to be the one that's going to
pay for it. Some people have told me that
your sister's gone to the United States. But
tell your sister that when she comes back, I'm
going to be waiting for her here. And if not
her, then I'll kill you. Tell her that if
- 27 -
it's not going to be her, then I'll find you
and I'll kill you.
Fearing for her life, Yolanda fled to the United States a few
months later, as soon as her infant daughter was weaned.
There is no bright line rule as to when "the sum of an
alien's experiences" rises to the level of persecution. Lopez de
Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007). But, the
petitioners credibly recounted that they were jointly threatened
with death by armed attackers at the store and that the assailants,
because of the petitioners' Quiché ethnicity, threw rocks at the
sisters and that one of the rocks seriously injured Consuelo. In
addition, the death threat that Consuelo received after filing the
police report was likewise specific and credible. In fact, in the
wake of that threat, the petitioners closed their store and
Consuelo ultimately fled the country. Finally, the threat that
Yolanda received at the festival was also made in person, specific,
accompanied by a forceful grab, and credible enough that she, too,
fled the country shortly thereafter.
I thus cannot conclude that substantial evidence
supports the IJ's and the BIA's rulings that the petitioners failed
to meet their burden to show that, as adults, they were subject to
harm severe enough to rise to the level of persecution.5 We have
5 As discussed supra at note 2, the BIA did issue a blanket
ruling affirming the IJ's conclusion that the petitioners did not
meet their burden to show that their past experiences rose to the
- 28 -
held that "threats of murder . . . fit neatly under this carapace
[of persecution]." Id.; see also Un, 415 F.3d at 210 ("[C]redible
verbal death threats may fall within the meaning of
'persecution.'"). And we have said that this is especially true
where specific threats are "bolstered by violence," Javed v.
Holder, 715 F.3d 391, 396 (1st Cir. 2013), and when the threats
are made "in person, and with a weapon." Sok v. Mukasey, 526 F.3d
48, 54 (1st Cir. 2008).
In finding that the threats were not severe enough to
support the sisters' claims of past persecution, the IJ did note
that "the [petitioners] continued to live in Guatemala for a number
of years without those attacks ever being fulfilled." But,
evidence that the target of a death threat stopped pursuing justice
against her attackers to avoid being killed by those same attackers
hardly supports the conclusion that the death threat was not severe
enough to ground a claim of past persecution. Thus, the fact that
Consuelo remained in the country after she was threatened is no
indication that she did not have reason to fear for her life. See
Lopez-Galarza v. I.N.S., 99 F.3d 954, 962 (9th Cir. 1996) (holding
level of persecution. But, it did so without separately addressing
the petitioners' claims based on their childhood and adult
experiences. Thus, for the same reasons that I have set forth in
that footnote, I focus on the IJ's ruling as to whether the
petitioners suffered past persecution as adults, because, if that
ruling cannot be sustained, then I do not see how the BIA's ruling
upholding it can be.
- 29 -
that the fact that "the petitioner remained in Nicaragua for eight
years [after being attacked] . . . [was] not relevant to . . . her
past persecution . . . since that persecution had already taken
place, and remaining did not lessen its severity"); see also
Nakibuka v. Gonzales, 421 F.3d 473, 477 (7th Cir. 2005) ("[A]n
asylum applicant's decision not to flee her home country
immediately does not mean that she was not persecuted."); cf. Sok,
526 F.3d at 51, 54-56 (concluding that IJ's finding of past
persecution was not supported by substantial evidence although the
petitioner did not leave the country until four years after she
first began receiving threats); Ajanel v. I.N.S., 79 F. App'x 968,
969 (9th Cir. 2003) (concluding that unfulfilled death threats
coupled with acts of violence against other members of the asylum
seeker's social group constituted past persecution).
In fact, after Consuelo eventually did flee the country,
the attackers still found Yolanda -- mistaking her for Consuelo
-- and repeated the threat that they had given earlier. This time,
though, the threat was made without any conditional caveat that
might allow Yolanda to comply with it in a manner that would permit
her to remain in the country without the death threat being carried
out. And, in keeping with the petitioners' contention that these
death threats were serious, Yolanda fled the country soon after
this unconditional threat was given.
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In my view, therefore, the key issue concerns the further
finding that the IJ made and on which the majority relies to
sustain the ruling by the IJ and the BIA that the petitioners had
failed to show that they suffered past persecution. See Maj Op.
15-18. In that further finding, the IJ determined that, even
assuming that the harm that the petitioners suffered as adults was
severe enough to rise to the level of persecution, the petitioners
still failed to demonstrate the requisite connection between the
action or inaction of the Guatemalan government and that harm.
And thus, the IJ ruled, their claims of past persecution failed
for that independent reason.
The IJ's finding on that score relied on the fact that
the petitioners testified that, "as soon as the police were
informed" about the attack at the store, "they arrested at least
some of [their] assailants and initiated criminal proceedings
against them." The IJ recognized that -- "given her fears at the
time" -- Consuelo's decision to drop the charges against those of
her assailants who had been arrested "may have been a reasonable
one[.]" But, the IJ nevertheless determined that Consuelo's
decision to drop those charges "cannot be attributed to the
Guatemalan government."
Although the majority concludes that substantial
evidence supports this finding, see Maj. Op. 15-16, in my view,
the IJ's reasoning in reaching this determination is unwarrantedly
- 31 -
categorical. The IJ did not address the possibility that the
record might contain evidence that would suffice to satisfy the
petitioners' burden of showing that the government of Guatemala
was not able (even if it was willing) to protect the petitioners
from their attackers in the event that the sisters chose to pursue
the charges against their attackers rather than to drop them in
the face of threats.
The IJ did note that the petitioners testified that the
police on a number of occasions "actually assisted Consuelo in her
efforts to ensure that the rights of other indigenous Mayan women
were enforced and recognized by others[.]" But, that evidence of
the government's willingness to provide assistance in the distinct
context of addressing concerns about employment discrimination is
simply one part of the record as a whole.
Thus, the IJ was required to weigh that evidence against
any countervailing evidence that the petitioners put forward to
show that the Guatemalan government was unable to protect them
from the ethnically-motivated attacks and threats by the gang that
attacked them. Of course, the government does not bear the burden
of proving that it was not responsible for the harm to which the
sisters were subjected by the gangs; the petitioners do. Pulisir
v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008). And, the BIA is
entitled to deference in evaluating the relative strength of any
- 32 -
evidence that the petitioners put forth of the government's
responsibility.
But, as the petitioners point out, they did put forth
affirmative evidence of the Guatemalan government's inability to
protect them in the form of evidence detailing the Guatemalan
government's "long and disturbing history" of not protecting
indigenous Guatemalans -- and the Quiché in particular -- from
harm (and, indeed, of perpetuating such harm). And yet, as the
petitioners also point out, neither the IJ nor the BIA addressed
that evidence in connection with the petitioners' contention as to
their past persecution claims that, in light of that disturbing
history, the Guatemalan government could not protect the sisters
from their attackers.
The failure of the IJ and the BIA to address this
critical evidence precludes me from concluding that substantial
evidence supports their conclusions that the petitioners failed to
meet their burden to show that the Guatemalan government was
responsible -- if only through inaction -- for the severe harm
that they suffered as adults. In reviewing agency findings for
substantial evidence, we are required to consider the record as a
whole and not merely to consider that evidence in the record that
lends support to the agency's finding. See Matovu v. Holder, 577
F.3d 383, 386 (1st Cir. 2009). And, thus, if there is potentially
countervailing evidence in the record that the agency has simply
- 33 -
not addressed in denying a claim for relief, then the appropriate
course is to vacate and remand the petition for review so that the
agency may consider that unaddressed evidence in the first
instance. See Aldana-Ramos, 757 F.3d at 18 (determining that the
failure of the BIA and IJ to "ever address" salient portions of
the record "is insufficient" to permit its ruling to be sustained
as supported by substantial evidence).
Thus, I conclude that we must vacate and remand the
petition so that the agency may do what it has not yet done --
assess and explain whether the petitioners' historical evidence
satisfies their burden of showing that the Guatemalan government
is responsible, even if only through inaction, for the severe harm
that the petitioners suffered as adults. For, if the petitioners
can meet that burden, and otherwise show what they must to
establish that they were persecuted as adults, then they are
entitled to a presumption that their "li[ves] or freedom would be
threatened in the future." 8 C.F.R. § 1208.16(b)(1)(i). And the
government would then be entitled to deny them withholding of
removal only by overcoming that presumption, something that the
government has not yet attempted to do.6
6In a paragraph that begins by holding that the IJ "did not
clearly err in finding that the [petitioners] did not establish a
well-founded fear of future persecution in Guatemala," the BIA did
state that the IJ "correctly determined that [the petitioners] did
not show that . . . the government of Guatemala is unable or
unwilling to protect them from the people that they fear." In so
- 34 -
II.
For the foregoing reasons, I respectfully dissent as to
the petitioners' withholding of removal claims.
holding, the BIA determined that the IJ did not clearly err in
finding that, because new Guatemalan police academies opening in
"largely indigenous areas" would "increase the number of
indigenous police officers," the petitioners had not met their
burden of showing that they had a basis for fearing future
persecution. That determination, though, did not purport to
provide a basis for upholding the BIA and IJ's rulings rejecting
the petitioners' claims of past persecution; nor did it address
the issue of whether the government would be able to overcome a
presumption of a well-founded fear of future persecution in the
event that the petitioners demonstrated that they had experienced
past persecution.
- 35 -