PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
G. Sniffin and The Law Office of Ondine G. Sniffin, for
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.
Lynch, Stahl, and Barron, Circuit Judges.
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.
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
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.
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."
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.
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.
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.
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."
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.
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.
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.
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.
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
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."
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.
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."
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."
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
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
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
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.