Olmos-Colaj v. Sessions

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.

- 2 -
 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.

- 3 -
 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

- 4 -
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

- 5 -
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

- 6 -
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."

- 7 -
 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."

- 8 -
 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.

- 9 -
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,

- 10 -
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).

- 11 -
 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.

- 12 -
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.

- 13 -
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

- 14 -
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,

- 15 -
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.

- 16 -
 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-

- 17 -
 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

- 18 -
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.

- 19 -
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

- 20 -
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

- 21 -
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

- 22 -
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.

- 23 -
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.

- 30 -
 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 -