Cabas v. Barr , 928 F.3d 177 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1630
OSWALDO CABAS,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Daniel Welch, with whom Kevin P. MacMurray and MacMurray
& Associates were on brief, for petitioner.
Nelle M. Seymour, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, with whom
Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S.
Department of Justice, and Claire L. Workman, Senior Litigation
Counsel, Office of Immigration Litigation, U.S. Department of
Justice, were on brief, for respondent.
July 1, 2019
KAYATTA, Circuit Judge. Oswaldo Cabas, a Venezuelan
native and citizen, left Venezuela and legally entered the United
States in April 2002. After he overstayed his visa, U.S.
Immigration and Customs Enforcement commenced removal proceedings
against him in December 2007. At his hearing, the immigration
judge (IJ) found him ineligible for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). The
Board of Immigration Appeals (BIA) and this court affirmed that
decision. Seven years and one Venezuelan regime change later,
Cabas -- armed with a purported warrant for his arrest for treason
and other evidence documenting changed conditions in Venezuela --
submitted a motion to reopen his removal proceedings. The BIA
denied that motion, reasoning that Cabas had failed to establish
a material change in country conditions and rejecting Cabas's
evidence of a well-founded fear of future persecution. We now
reverse and remand.
I.
Cabas was born in Maracaibo, Venezuela in 1974. After
completing high school, he became involved in national politics
and joined a political group called "Acción Democrática." As a
member of that group, he arranged meetings and distributed flyers.
In 1999, after Hugo Chávez rose to power, Cabas joined a new
political group, "Un Nuevo Tiempo," which opposed the Chávez
regime. He walked house-to-house warning those who would listen
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that Chávez was a threat to democratic rule in Venezuela. He also
hosted a weekly political radio segment in which he railed against
Chávez and the ruling socialist party.
Cabas's troubles began later that year. While at a
party, he heard gunshots ring out followed by voices calling his
name. Fearing for his life, he fled to a nearby house and escaped
unharmed. Subsequently, in March 2000, individuals from the
Círculos Bolivarianos -- a network of ex-guerrilla, government-
sponsored militias -- attacked Cabas and kidnapped him at gunpoint.
Cabas's kidnappers demanded that he cease his political
activities, beat him, and left him bloodied and unconscious in the
street.
Several months thereafter, Cabas resumed his political
work. In retaliation, Chávez supporters kidnapped and attacked
his father "in the same way that was done to [Cabas]." Fearing
further harm, Cabas sought refuge in the United States in April
2002 and ceased his political activity. He returned to Venezuela
in October, hoping that the political climate might be less
turbulent. That calculation proved wrong. Later that month, two
men came to his parents' house looking for him. They attacked his
brothers and attempted to get them to reveal Cabas's whereabouts.
Recognizing that his presence in Venezuela threatened not only his
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own safety but that of his family, Cabas returned to the United
States in November 2002.
The Department of Homeland Security initiated removal
proceedings against Cabas five years later, in December 2007. At
his removal hearing in 2010, the IJ denied Cabas's asylum
application as untimely and rejected his petitions for withholding
of removal and CAT protection because the experience Cabas related
did not rise to the level of actual persecution and because he
otherwise failed to demonstrate that it was more likely than not
that he would suffer future persecution or torture. The BIA
affirmed those rulings, as did a panel of this court. See Cabas
v. Holder (Cabas I), 695 F.3d 169 (1st Cir. 2012).
In January 2018, Cabas moved to reopen his removal
proceedings, arguing that conditions have materially worsened for
political dissidents in Venezuela since the denial of his
applications in 2010 and claiming prima facie eligibility for
asylum and withholding-of-removal relief. The BIA denied his
motion, and this appeal followed.
II.
To prevail on his otherwise untimely motion to reopen,
Cabas needed to make two showings. First, he had to "adduce
material evidence, previously unavailable, showing changed country
conditions" in Venezuela. Garcia-Aguilar v. Whitaker, 913 F.3d
215, 218 (1st Cir. 2019); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
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Second, he had to "make out a prima facie case of eligibility" for
asylum. Garcia-Aguilar, 913 F.3d at 218.
The BIA found that Cabas made neither showing. We review
the BIA's findings "under a deferential abuse of discretion
standard." Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir.
2015). This deferential standard of review means that in order to
secure appellate relief from this court, Cabas need now demonstrate
not just that the BIA was wrong, but that it "committed an error
of law or exercised its judgment in an arbitrary, capricious, or
irrational way." Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.
2014) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
2007)).
With these standards in mind, we turn to the merits of
Cabas's case.
A.
To determine if country conditions have changed, the BIA
compares the evidence submitted with the petitioner's motion to
reopen with the evidence presented at his merits hearing. See
Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir. 2013) (quoting In
re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)). Cabas needed
to show the BIA that conditions "'intensified or deteriorated' in
some material way" between the time of his merits hearing and his
motion to reopen. Sihotang v. Sessions, 900 F.3d 46, 50 (1st Cir.
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2018) (quoting Sánchez-Romero v. Sessions, 865 F.3d 43, 45 (1st
Cir. 2017)).1
Cabas's primary evidence of changed country conditions
is the 2016 U.S. Department of State Human Rights Report for
Venezuela. The BIA compared this document with the State
Department's 2009 Human Rights Report for Venezuela, which
accompanied Cabas's original asylum application. While noting the
Venezuelan government's continued targeting of "opposition
political activists for arbitrary detentions" and "reports of
government harassment and intimidation of opposition political
parties," the BIA concluded that Cabas's new evidence was
"insufficient to show a material change in conditions or
circumstances in Venezuela with respect to the treatment of members
of opposition political parties since the respondent's removal
proceedings in 2010."
Standing alone, a side-by-side comparison of the
comprehensive information presented in the State Department's 2009
and 2016 Venezuela Country Reports -- which are "authoritative"
1 Because our review of the BIA's denial of Cabas's motion to
reopen is limited to the administrative record before the BIA, see
8 U.S.C. § 1252(b)(4)(A)("[T]he court of appeals shall decide the
petition only on the administrative record on which the order of
removal is based . . . ."); Yan Yun Zheng v. Mukasey, 280 F. App'x
104, 106 (2d Cir. 2008), we do not consider the additional
materials addressing changes in Venezuela since January 25, 2018
(the date Cabas submitted his motion to reopen) that Cabas included
with his opening appellate brief.
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for purposes of this proceeding, Pulisir v. Mukasey, 524 F.3d 302,
310 (1st Cir. 2008) -- reveals a material shift in Venezuela's
political landscape and a significant escalation in the dangers
that opposition political activists face in that country. Such a
comparison is a crucial exercise in determining whether country
conditions have in fact changed. See Haizem Liu, 727 F.3d at 57.
For one, the country reports document a substantial
increase in the rate of arbitrary detentions in Venezuela since
2009, particularly for political activists. While the 2009 report
observes that "[p]ersons were sometimes apprehended without
warrants from judicial authorities," the 2016 report recounts that
"[p]olice often detained individuals without a warrant" and
documents "at least 2,000 open cases of arbitrary detentions" that
year and 5,853 arbitrary detentions from February 2014 to June
2016. The 2016 report provides numerous specific accounts of
Venezuelan authorities targeting political dissidents for such
treatment. And though Venezuelan law "allows detainees access to
counsel and family members," mandates that prisoners "be informed
promptly of the charges against them," and requires that they
appear before a judge "to determine the legality of the detention,"
the 2016 report observes that these requirements were not honored
for political prisoners. By contrast, the 2009 report makes no
mention of this nonfeasance.
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The number of political prisoners in Venezuela also
materially increased from 2009 to 2016. In 2009, the State
Department reported "between 11 and 57 political prisoners" in
Venezuela. By 2016, that number had risen to more than 100, and
-- more significantly -- "[a]n additional 1,998 individuals were
subject[ed] to either restricted movement or precautionary
measures" due to their political activism.
The record also demonstrates a surge in the number of
extrajudicial killings by security forces since 2009. While the
2009 report documents "205 deaths due to security force actions"
in a one-year period, the 2016 report details 1,296 such killings
and describes "large-scale raids conducted by hundreds of
government security agents in neighborhoods allegedly harboring
criminals," which "often resulted in the deaths of suspected
criminals."
And though it's true that both reports portray serious
impingements on individuals' political speech and the press, the
2016 report reveals important new restrictions on the freedoms of
assembly and association under the Nicolás Maduro regime. These
include "the increasing activities of progovernment gangs," the
detention of protesters, and the limiting of access to opposition
rallies. Further, the report notes that, in some parts of the
country, the regime has suspended the constitutional rights to
meet publicly or privately without prior government permission and
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to peacefully demonstrate. More generally, a comparison of the
two reports shows a dramatic shift from a government characterized
by "generally free and fair" elections to an increasingly
authoritarian regime with elections marred by "government
interference, electoral irregularities, and manipulation of
voters."
It is inescapably apparent that country conditions have
worsened in a manner that is material to Cabas's asylum and
withholding claims. Cabas hinges his claims on establishing a
well-founded fear of future persecution based on political
affiliation. The Venezuelan government's increasingly aggressive,
increasingly violent repression of political dissent and its shift
toward authoritarian rule certainly made it more likely that a
political dissident would face persecution upon returning to
Venezuela when Cabas moved to reopen his immigration proceedings
in January 2018. The BIA's conclusion to the contrary lacks record
support and is, for that reason, arbitrary.
B.
We turn now to the BIA's conclusion that Cabas failed to
make out even a prima facie case for asylum or withholding of
removal. To demonstrate a prime facie case before the BIA on a
motion to reopen, Cabas need not establish that he will or is even
likely to prevail if given another hearing before an IJ on the
merits of his asylum and withholding claims. Rather, he need only
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show now that there exists a "realistic chance" that he can "at a
later time establish that asylum should be granted." Guo
v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004). In practical terms,
this means that he "'need only produce objective evidence showing
a "reasonable likelihood"' that he will face future persecution
based on a statutory ground." Smith v. Holder, 627 F.3d 427, 437
(1st Cir. 2010) (quoting Larngar v. Holder, 562 F.3d 71, 78 (1st
Cir. 2009)); see also Perez v. Holder, 473 F. App'x 9, 12 (1st
Cir. 2012) ("The standard for granting reopening is the same for
both asylum and withholding of removal.").
The "[p]ersecution" an asylum applicant must show is
more than "mere discomfiture, unpleasantness, harassment, or
unfair treatment." Jutus v. Holder, 723 F.3d 105, 111 (1st Cir.
2013) (quoting Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.
2010)). Instead, the petitioner need show "serious harm." Id.
(quoting Mendez-Barrera, 602 F.3d at 25). Moreover, "the alleged
persecution must involve 'some connection to government action or
inaction.'" Id. (quoting Raza v. Gonzales, 484 F.3d 125, 129 (1st
Cir. 2007)). In considering whether a petitioner has established
a prima facie case, this court looks to both "the evidence that
accompanies the motion as well as relevant evidence that may exist
in the record of the prior hearing." Smith, 627 F.3d at 438.
Accompanying his motion to reopen, Cabas included an
affidavit. That affidavit provides that Cabas "still support[s]
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[Un Nuevo Tiempo], and make[s] monetary contributions of about
$50–100 every two or three months." It further states that two of
his friends -- also members of Un Nuevo Tiempo -- were arrested
during a political protest in February 2017 and were "subsequently
tortured and killed." Finally, it recounts that Cabas's mother
called and informed Cabas that she had been served with a warrant
for his arrest, charging him for treason, in July 2017. According
to the affidavit, the treason charge makes him "an immediate target
to be killed" upon his return to Venezuela.
Cabas included a copy of the purported warrant for his
arrest with his motion. The warrant is dated June 27, 2017 and
includes what appear to be the signature of a Venezuelan judge and
the stamped seal of the Bolivarian Republic of Venezuela. The
warrant charges Cabas with providing logistical and economic
support to opposition demonstrators, public instigation, and
treason. Other than the affidavit and arrest warrant, Cabas
provided the U.S. Department of State's 2016 Human Rights Report
for Venezuela, a 2016 Human Rights Watch Report, and a news article
on Venezuela's "Law of Hate."
The BIA concluded that Cabas's evidence could not
establish even prima facie eligibility for asylum and withholding
of removal. It gave "limited weight" to Cabas's arrest warrant,
reasoning that "[i]t ha[d] not been meaningfully authenticated in
any manner" and Cabas had provided no "plausible explanation [for]
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why authorities would seek to arrest him" given his lengthy absence
from Venezuela. As to Cabas's affidavit, the BIA noted that Cabas
had offered no independent evidence that he continued to support
Un Nuevo Tiempo; that his friends were arrested, tortured, and
killed; or that the warrant was delivered to his family's home.
The BIA provided no further explanation for its conclusion, nor
did it make mention of Cabas's other evidence or the record from
his original removal proceedings.
On appeal, the government does not dispute that the
warrant, if real, would provide compelling evidence of likely
persecution should Cabas return to Venezuela. The document
demonstrates that the Venezuelan government both views him as an
opposition figure and aims to try him for treason and related
offenses. While "brief periods of detention, without accompanying
physical abuse," do not amount to persecution, Xiu Xia Zheng v.
Holder, 502 F. App'x 13, 17 (1st Cir. 2013), the 2016 Human Rights
Report indicates that individuals recently charged with engaging
in opposition activities in Venezuela have faced severe sanctions
of up to twenty-five years in prison. And many political prisoners
are tortured while in custody. Clearly, a credible threat of such
conduct, if proven at a subsequent proceeding, would support a
finding that Cabas has a well-founded fear of future persecution.
See 8 C.F.R. § 208.13(b)(2)(i)(B) (explaining that an asylum
applicant alleging a well-founded fear of persecution must show "a
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reasonable possibility of suffering . . . persecution" upon his
return); see also Chen Qin v. Lynch, 833 F.3d 40, 44 (1st Cir.
2016) ("Though Congress has not clearly defined persecution, 'we
view persecution as encompassing not only death and imprisonment,
but [also] "the well-founded fear of non-life[-]threatening
violence and physical abuse."'" (quoting Marquez v. INS, 105 F.3d
374, 379 (7th Cir. 1997))). So, the key issue on this appeal is
whether the BIA abused its discretion in giving the arrest warrant
"limited weight," which, in this context, equates to no material
weight at all.
"The BIA has discretion to deem a document's lack of
authentication a telling factor weighing against its evidentiary
value." Hang Chen v. Holder, 675 F.3d 100, 107 (1st Cir. 2012).
Department of Justice regulations generally provide that public
documents may be authenticated by "official publication" or
certification by an authorized foreign officer. See 8 C.F.R.
§ 1287.6(c). But because "asylum applicants [cannot] always
reasonably be expected to have an authenticated document from an
alleged persecutor," Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532
(3d Cir. 2004), these regulations "offer[] only a method -- not
the exclusive method -- for authenticating a record in an asylum
case," Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007); see
also Nak Chen v. Holder, 380 F. App'x 748, 751–52 (10th Cir. 2010)
(listing alternative means of authentication). Accordingly, we
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have held that "authentication requires nothing more than proof
that a document or thing is what it purports to be" and "can be
prove[n] in any way that makes sense in the circumstances." Yongo
v. INS, 355 F.3d 27, 30–31 (1st Cir. 2004). Moreover, "in
immigration proceedings -- where the rules of evidence do not apply
-- evidentiary standards are generally more lax." Castilho de
Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir. 2009).
As proof that the warrant is authentic, Cabas points to
the face of the document -- which bears the imprimatur of the
Venezuelan government and the signature of the issuing judge --
and to his supporting affidavit. While not meeting the formal
requirements of a self-authenticating foreign public document, see
Fed. R. Evid. 902(3), the face of the arrest warrant reveals no
cause to doubt its genuineness.
Cabas's affidavit further evidences the arrest warrant's
authenticity. In that affidavit, Cabas states that "[o]n or around
July of 2017 [his] mother called and informed [him] that she had
received a warrant for [his] arrest," charging him with treason,
"at [their] residence in Venezuela." The affidavit provides some
corroboration as to the validity of the arrest warrant by
establishing the manner, location, and time that Cabas's family
came to possess it. See Yongo, 355 F.3d at 31 (deeming records
authenticated through testimony as to their provenance and
appearance); see also id. (explaining that formal hearsay rules do
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not apply in immigration proceedings for purposes of
authentication). Moreover, contrary to the BIA's assertion that
no plausible explanation exists as to why authorities would now
seek to arrest Cabas, Cabas's affidavit and supporting documents
explain that he has continued to support Un Nuevo Tiempo while
living in the United States and that the Maduro government has
engaged in a systematic, heightened crackdown on political dissent
within Venezuela. If credited, this evidence provides a cogent
explanation for why members of the Maduro government would now
seek Cabas's arrest for treason.
We accord the BIA wide berth to reject a petitioner's
attempt to authenticate a document when the petitioner was deemed
not credible at his merits hearing. See, e.g., Xiao He Chen
v. Lynch, 825 F.3d 83, 87 (1st Cir. 2016) ("[S]pecial respect is
due to the BIA's refusal to credit an attempt at authentication by
a witness whom the IJ earlier found incredible."); Gi Kuan Tsai
v. Holder, 505 F. App'x 4, 8 (1st Cir. 2013) ("[T]he BIA's decision
did not solely rest on the limited weight ascribed to an
unauthenticated document, but also relied upon consideration of an
IJ's prior adverse credibility finding against the petitioner.").
Here, though, we have the converse: The IJ who observed Cabas
testify at his merits hearing deemed Cabas to be generally
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credible.2 So, we have an arrest warrant that looks, but may not
be, authentic, supported by an affidavit signed by a person
previously accepted as credible by the IJ and the BIA. The
issuance of such a warrant fits the established narrative put forth
in the motion to reopen. It hardly seems out of character for the
regime described in the U.S. Department of State's 2016 Human
Rights Report. Cabas swears to continuing activity that would
likely engender the displeasure of the regime described in that
report. And the BIA points to no reports indicating that documents
of this ilk from Venezuela are frequently doctored or fraudulently
created. Cf. Gao v. Gonzales, 467 F.3d 33, 37 (1st Cir. 2006)
("Given the government reports about widespread fabrication and
fraud in documents originating from Gao's region of China, it was
reasonable for the IJ to require some form of authentication for
such documents . . . .").
Were this a reopened proceeding, Cabas would presumably
be questioned about the warrant and his other evidence. An IJ
would certainly have broad discretion to gauge the credibility of
that testimony. For now and on this record, though, it strikes us
as entirely arbitrary to deem Cabas's proffered testimony to be
incredible. It therefore also strikes us as equally arbitrary to
2 As we explained in Cabas I, the IJ found Cabas to be
generally credible but discounted one incident recounted in his
testimony because he did not also mention it in his supporting
affidavit. See Cabas I, 695 F.3d at 172.
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treat the warrant as a fraud. In short, "[a]bsent evidence of
forgery, alteration, or some other reason to doubt [its]
authenticity," we do not think the BIA was entitled to treat the
warrant as so obviously fraudulent as to render it insufficient to
prove even a prima facie case of likely persecution. Castilho de
Oliveira, 564 F.3d at 897; see also Hua Chen v. Holder, 358 F.
App'x 705, 707 (7th Cir. 2009) ("Lack of compliance with § 1287.6
is not a valid basis for immigration courts to disregard relevant
evidence unless there are additional reasons to doubt its
authenticity.").
We are also troubled by the BIA's sweeping disregard of
Cabas's affidavit for lack of independent corroboration. If
credited, that affidavit provides evidence of his continued
political involvement with Un Nuevo Tiempo, the targeting of other
members of this political organization for persecution, and the
Maduro government's intention to prosecute Cabas for treason --
evidence that is clearly material to Cabas's claim of future
persecution. In Smith v. Holder, we observed that "[t]o make a
showing of either past persecution or a likelihood of future
persecution, 'an applicant's testimony, if credible, may be
sufficient.'" 627 F.3d at 437 (quoting Fesseha v. Ashcroft, 333
F.3d 13, 19 (1st Cir. 2003)); see also Jutus, 723 F.3d at 112 n.3
("We have considered -- and in some cases upheld -- numerous asylum
applications and motions to reopen that relied exclusively on an
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applicant's affidavit and documentary evidence."). Here, where
the IJ deemed Cabas a credible witness in the underlying
proceeding, and the BIA points to no other reason to doubt Cabas's
testimony, it was an abuse of discretion to reject the affidavit
and disregard its contents.
Finally, the BIA made no mention at all of the evidence
Cabas proffered in his original asylum case. This, too, was error.
See Smith, 627 F.3d at 439 ("[P]rima facie scrutiny of [the] motion
to reopen must . . . include an evaluation of all of the currently
available evidence."). Though we previously held that Cabas did
not suffer past persecution while living in Venezuela, his evidence
of real harassment from government-sponsored gangs due to his
political activism certainly warrants some weight in deciding
whether he will suffer persecution upon his return to Venezuela in
the worsened conditions that now exist.
"While it remains true that the BIA need not 'dissect in
minute detail every contention that a complaining party advances,'
it cannot turn a blind eye to salient facts." Sihotang, 900 F.3d
at 51 (citation omitted) (quoting Xiao He Chen, 825 F.3d at 88).
We cannot say that the BIA fulfilled that mandate here. Moreover,
we think the record before us compels the conclusion that Cabas
has shown at least a reasonable chance that he will face future
persecution based on his political opinion. Accordingly, reversal
is warranted. See Xin Qiang Liu, 802 F.3d at 74; Fergiste v. INS,
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138 F.3d 14, 21 (1st Cir. 1998) (Selya, J., concurring) ("[I]n
some cases the record may be so pellucid that remand would be an
empty exercise.").
III.
For the foregoing reasons, we reverse the BIA's denial
of Cabas's motion to reopen his removal proceedings, and we remand
to the BIA with instructions to order a new hearing before an IJ
to reconsider Cabas's petitions for asylum and withholding of
removal in light of Cabas's new evidence.
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