886 F.3d 168
1st Cir.2018Background
- Petitioners Yolanda and Consuelo Olmos‑Colaj, Quiché Mayan sisters from Guatemala, conceded removability and applied for asylum, withholding of removal, and CAT protection after DHS arrested them in a 2007 workplace raid. They filed asylum forms years after arrival (Consuelo 2007; Yolanda 2007 revised 2010).
- Their testimony and documentary record described childhood displacement during the Guatemalan Civil War, family members killed/raped, ongoing ethnic discrimination, a violent robbery and assault at Consuelo’s store (visible scar), subsequent death threats, and a later threat to Yolanda that prompted her migration.
- The IJ found them credible on the factual basis of claims but held asylum untimely and that they failed to show "extraordinary circumstances" to excuse the late filing; the IJ alternatively found insufficient past persecution, insufficient nexus to government action/inaction, and no well‑founded fear of future persecution.
- The BIA adopted and affirmed the IJ’s decision; this Court reviews the BIA+IJ under the substantial‑evidence standard and denies review of the asylum‑timeliness finding for lack of jurisdiction absent a legal/constitutional challenge.
- The panel majority affirmed denial of asylum, withholding, and CAT relief (CAT waived for failure to brief). Judge Barron concurred/dissented in part, arguing that substantial evidence does not sustain the denial of withholding of removal and that remand is required to address unconsidered record evidence and the child‑perspective analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of asylum filing / extraordinary‑circumstances exception | Filing delay excused by trauma, fear, lack of knowledge; expert evidence would show psychological impairment | IJ properly weighed credibility and evidence; no jurisdiction to review factual timeliness finding | Court lacks jurisdiction to review BIA/IJ factual finding on extraord. circumstances; asylum denial affirmed |
| Due process re: expert testimony and IJ bias | IJ improperly refused live expert testimony and displayed bias that denied fair hearing | IJ offered to accept an offer of proof and the expert’s written reports; comments of impatience not disqualifying | No due process violation; counsel acquiesced to offer of proof; IJ’s conduct not disqualifying |
| Withholding of removal — past persecution and nexus to government | Past harms (childhood war displacement; adult robbery, assault, death threats) were persecution tied to Quiché identity; government was unable/unwilling to protect | Police did respond in incidents; petitioners dropped prosecution; record does not show current, individualized risk or government inability | Majority: substantial evidence supports finding of no past persecution or well‑founded fear; withholding denied. Concurring/dissent: substantial evidence does not support IJ’s rejection of past persecution; remand required to address nexus and child‑perspective analysis |
| CAT protection | Argues torture risk on return | Government disputes, no developed argument | Waived—petitioners failed to brief CAT claim; argument forfeited |
Key Cases Cited
- Aguilar‑Solis v. I.N.S., 168 F.3d 565 (1st Cir.) (procedural due process review)
- Albathani v. I.N.S., 318 F.3d 365 (1st Cir.) (IJ discretion to manage hearings)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial expressions of impatience not bias)
- Silva v. Gonzales, 463 F.3d 68 (1st Cir.) (asylum/withholding standards)
- Hana v. Gonzales, 503 F.3d 39 (1st Cir.) (jurisdictional bar to review of timeliness factual findings)
- Pan v. Gonzales, 489 F.3d 80 (1st Cir.) (limits on disguised factual challenges)
- Matovu v. Holder, 577 F.3d 383 (1st Cir.) (substantial‑evidence review of BIA)
- Aguilar‑Escoto v. Sessions, 874 F.3d 334 (1st Cir.) (withholding requires higher showing than asylum)
- Ly v. Mukasey, 524 F.3d 126 (1st Cir.) (government action/inaction requirement for persecution)
- Arias‑Minaya v. Holder, 779 F.3d 49 (1st Cir.) (reviewing tiered BIA+IJ decisions)
- Un v. Gonzales, 415 F.3d 205 (1st Cir.) (presumption from past persecution and government burden to show changed circumstances)
- Ordonez‑Quino v. Holder, 760 F.3d 80 (1st Cir.) (assessing childhood wartime harms from child’s perspective)