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Olmos-Colaj v. Sessions

United States Court of Appeals, First Circuit

March 29, 2018



          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.

          Before Lynch, Stahl, and Barron, Circuit Judges.


         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.

         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.

         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 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 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 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."

         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]

         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. ...

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