Andrade-Prado, Jr. v. Garland ( 2023 )

United States Court of Appeals
For the First Circuit
No. 20-1913
FLAVIO ANDRADE-PRADO, JR.,
Petitioner,
v.
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Gelpí, and Montecalvo,
Circuit Judges.
Jason Giannetti, with whom Law Offices of Jason Giannetti,
Esq. was on brief, for petitioner.
Jeffrey R. Leist, Senior Litigation Counsel, Office of
Immigration Litigation, with whom Brian Boynton, Principal Deputy
Assistant Attorney General, Civil Division, and Anthony C. Payne,
Assistant Director, Office of Immigration Litigation, were on
brief for respondent.
April 4, 2023
GELPÍ, Circuit Judge. Petitioner Flavio Andrade-Prado,
Jr. ("Petitioner" or "Andrade-Prado") seeks review of a final order
of removal issued by the Board of Immigration Appeals ("BIA").
The BIA dismissed Andrade-Prado's appeal of the immigration
court's decision concluding that his Brazilian conviction (which
carried a sentence of over seven years) constituted both an
aggravated felony and a particularly serious crime rendering him
ineligible for asylum, withholding of removal, cancellation of
removal, and voluntary departure. The BIA upheld the immigration
court's conclusion that Andrade-Prado's foreign conviction was
valid and thus barred him from relief. Because substantial
evidence supports the BIA's determination, we find no error of law
and deny Andrade-Prado's petition for review.
I. Background
A. Andrade-Prado's Foreign Conviction
Petitioner was born and raised in Poço Fundo, Minas
Gerais, Brazil. Throughout his childhood and teenage years, he
dealt with physical and psychological trauma largely due to police
militias and criminal groups in his hometown. While in Brazil,
Petitioner was in a relationship with a woman to whom we shall
refer as M.C.D.P., which ended in 2004. In April 2005, M.C.D.P.
accused Petitioner of rape, which led to his arrest and
prosecution. Petitioner remained in pre-trial detention for the
pendency of his case, was represented by a court-appointed
- 2 -
attorney, appeared in court once -- on September 28, 2006 -- for
an evidentiary hearing on the merits of the charges against him,
and through his attorney, presented a defense, produced
documentary evidence, and had the opportunity to cross-examine the
victim at that evidentiary hearing (although he declined to do
so). Subsequently, a Brazilian judge convicted Petitioner of rape
and sentenced him to seven years and six months of imprisonment.
In May 2008, while Petitioner was in a work release program, he
escaped from prison and fled to Panama, and eventually entered the
United States in August 2008 via a Texas border crossing. A
Brazilian arrest warrant was issued on July 13, 2012.
B. Life in the United States
While working in Taunton, Massachusetts, Petitioner met
his wife. They began dating in 2010, moved to Brockton in 2011,
had their first child a year later, and were married in November
2013. Their second child was born in 2018. Petitioner's wife and
children are U.S. citizens. Along with his wife, Petitioner owned
a carpentry business. In 2017, Petitioner engaged a Brazilian
lawyer to try to expunge his Brazilian rape conviction.1
On April 25, 2019, Immigration and Customs Enforcement
("ICE") officers, along with Brockton, Massachusetts police
It is unclear from the record the status of the proceedings
1
to expunge the foreign conviction. Petitioner's contact with said
Brazilian attorney has since ceased.
- 3 -
officers, arrested Petitioner after Department of Homeland
Security ("DHS") agents were notified by a Brazilian Civil Police
Agent about the 2012 arrest warrant for Petitioner. Shortly before
the arrest, the International Criminal Police Organization,
commonly known as INTERPOL, issued a Red Notice for Petitioner.2
On April 25, 2019, DHS served Petitioner with a Notice
to Appear charging that he was subject to removal under section
212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen who was neither
admitted nor paroled. He conceded the allegations in the Notice
to Appear and sought asylum, withholding of removal, protection
under the Convention Against Torture ("CAT"), cancellation of
removal, voluntary departure, and adjustment of status.
C. Removal Proceedings
1. Immigration Court
Petitioner appeared before the immigration court on
July 23, 2019 for removal proceedings. Having conceded
removability, the focus of the hearing was Petitioner's
eligibility for relief. As a threshold matter, individuals with
rape convictions are statutorily barred from all forms of relief
2"An INTERPOL Red Notice is 'a request to law enforcement
worldwide to locate and provisionally arrest a person pending
extradition, surrender, or similar legal action.'" Hernandez Lara
v. Barr, 962 F.3d 45, 48 n.3 (1st Cir. 2020) (quoting
Red Notices, INTERPOL, https://www.interpol.int/en/How-we-
work/Notices/Red-Notices (last visited Feb. 9, 2023)).
- 4 -
Petitioner requested, except for CAT deferral. Though Petitioner
conceded that he had been convicted of rape in Brazil, he argued
that his foreign conviction is not applicable for immigration
purposes for two reasons. First, he advanced that his conviction
was "in absentia," making it invalid for immigration purposes. In
the alternative, he argued that the conviction should nevertheless
be set aside because the proceedings were so flawed as to render
the conviction invalid.
When questioned by the immigration judge ("IJ") about
the "in absentia" reference on Petitioner's Form I-213,3
Petitioner's counsel stated that it was his understanding "that
[Petitioner] was present for a trial in Brazil[.]"4 Because the
question of whether Petitioner's Brazilian conviction was valid
for immigration purposes would dictate the relief available, the
IJ set a hearing on that issue for August 16, 2019. Accordingly,
DHS submitted a memorandum explaining that Form I-213's indication
that Petitioner had been convicted in absentia was an error because
3Form I-213 is "a standard government form that documents
biographical and factual information about a deportable or
inadmissible [noncitizen]." Garcia-Aguilar v. Lynch, 806 F.3d
671, 673 (1st Cir. 2015). The relevant text from Petitioner's
Form I-213 reads: "On 05/08/2008, [Petitioner] escaped from the
prison in Poço Fundo, Minas Gerais and was convicted in Brazil for
rape in absencia [sic]."
4Counsel additionally clarified that "[t]he conviction on
rape was not an in absentia conviction. [Petitioner] was in Brazil
for that hearing."
- 5 -
the in absentia language on said document referred to Petitioner's
prison escape. Thus, DHS maintained that the conviction was valid
for removal purposes. Petitioner replied that he was not afforded
due process, his only time in court was for his arraignment, and
he was unable to cross-examine his accuser and present evidence.
He further argued that he learned of his conviction when he
received a letter, while in prison, that notified him of the time
he had to serve.
At the August 16, 2019 hearing, the IJ informed
Petitioner's counsel and DHS that if he found that the rape
conviction was not valid for immigration purposes, the only relief
available to Petitioner would be under the CAT. The parties agreed
with the IJ, as well as on the classification of the offense as an
aggravated felony and a particularly serious crime due to the
seven-year sentence imposed. Likewise, the parties agreed that
the only disputed issue was the foreign conviction's validity for
immigration purposes. The removal proceedings were continued
until September 26, 2019. At said hearing, Petitioner, who had
court-appointed counsel, testified about his upbringing and his
relationship with M.C.D.P. He also stated that after his arrest
in Brazil, his case was assigned to a judge who had run against
his cousin in a mayoral election.5 He further explained that he
5Although Petitioner's testimony before the IJ did not hint
as to when his cousin and the Brazilian judge ran against each
- 6 -
was present at a hearing where both he and M.C.D.P. testified, and
he denied the charge against him. When questioned by the IJ about
having the opportunity to cross-examine M.C.D.P., Petitioner
replied that although his attorney had the chance to, he decided
not to. He was also allowed to present evidence, such as the
police report and medical evaluation, to bolster his defense. He
was not convicted at said hearing itself. Rather about a year
later, he received a letter in prison notifying him of his rape
conviction. He appealed said conviction, and was denied in 2007.
Petitioner additionally testified before the IJ that the purported
victim had recanted, and presented a statement dated May 7, 2019,
to the IJ that, he asserted, the victim had emailed to his wife
recanting the rape allegation.
2. The IJ's Decision
On December 10, 2019, the IJ issued his decision denying
Petitioner's claims for asylum, withholding of removal, protection
under the CAT, cancellation of removal, and voluntary departure.
The IJ determined that Petitioner's rape conviction, and
corresponding seven-year sentence, was cognizable for immigration
purposes and constituted both an aggravated felony and a
particularly serious crime (which the Petitioner had conceded
during the previous hearing), statutorily barring asylum,
other, in his reply brief he states that the electoral campaign
occurred "over fifteen year[s] prior" to the rape charges.
- 7 -
withholding relief, and cancellation of removal. The IJ found
that Petitioner testified "credibly and
consistently . . . regarding his experience in Brazil and his fear
of return, as well as the hardships his children would experience
upon his removal[.]" The IJ refused to credit Petitioner's
testimony as to his arrest and alleged in absentia conviction.
The IJ instead credited DHS's representation that the in absentia
statement on Petitioner's Form I-213 was an error based on a
misreading of the record. While Petitioner may have appeared
before the Brazilian court only once, he admitted that he was
allowed to appear and present evidence, had court-appointed
counsel, had witnesses testify in his favor, and received
notification of his conviction. Thus, the IJ found that there was
insufficient evidence demonstrating that he had been convicted in
absentia, or that the proceedings in Brazil did not sufficiently
comply with due process.
The IJ also determined that the Petitioner committed a
serious nonpolitical crime in Brazil -- a second bar to asylum and
withholding of removal. The IJ gave little to no weight to
evidence proffered by Petitioner because he sought to rely on an
attachment to an email that appears to be a sworn letter by
M.C.D.P. recanting her accusations (the "recantation letter"),
presented no evidence to validate its authenticity, and M.C.D.P.
was not present to testify or be cross-examined.
- 8 -
Regarding the CAT claim -- focusing solely on CAT
deferral -- the IJ decided that the evidence was insufficient to
indicate that Petitioner was tortured in the past by government
officials or that he was more likely than not to be tortured in
the future. While the IJ credited that Petitioner suffered
"physical and psychological abuse while imprisoned at the hands of
other inmates and prison guards," he explained that "harsh prison
conditions alone" do not necessarily constitute torture. As such,
the IJ held that Petitioner was ineligible for deferral of removal
under the CAT.
Finally, the IJ concluded that a crime of moral turpitude
barred Petitioner from cancellation of removal but, even assuming
arguendo that he was not barred from said relief, he failed to
provide sufficient evidence to show that his wife and children
would endure "exceptional and extremely unusual hardships."
Likewise, Petitioner was statutorily ineligible for voluntary
departure due to the aggravated felony conviction.
3. Appeal to the BIA
The BIA dismissed Petitioner's appeal on
September 16, 2020. Citing to BIA precedent, it first noted that
it had no jurisdiction to entertain collateral attacks on the
merits of the Brazilian conviction and would refrain from opining
on its validity. See Matter of McNaughton, 16 I. & N. Dec. 569,
571 (B.I.A. 1978). It subsequently affirmed the IJ's determination
- 9 -
on the validity of the rape conviction for immigration purposes.
Likewise, the agency affirmed the IJ's "particularly serious
crime" and "serious nonpolitical crime" determinations -
- observing that neither were meaningfully challenged by
Petitioner -- thus affirming de novo the asylum and withholding of
removal bars. The BIA found no "legal or clear factual error"
regarding the IJ's determination that Petitioner failed to
establish past persecution or a well-founded fear of persecution
on the statutorily enumerated grounds. It also found Petitioner's
appellate arguments regarding past persecution unpersuasive
because they were unsupported by citation to legal authority.
Regarding cancellation of removal, the agency affirmed the IJ after
concluding that the claim was barred because Petitioner did not
challenge "the [IJ's] determination that his rape conviction
constitutes a disqualifying offense for cancellation of removal
purposes." As for Petitioner's claim that the IJ's denial of his
asylum application violated his due process rights, the BIA
likewise found no error where he failed to demonstrate prejudice
resulting from the alleged violation. Lastly, Petitioner's
submission of additional evidence on appeal -- a declaration by an
ICE officer, a duplicate copy of the Brazilian conviction
certificate, and correspondence from his Brazilian attorney -- was
construed as a motion to remand. The BIA concluded that remand
was unwarranted because Petitioner failed to demonstrate that the
- 10 -
evidence submitted was previously unavailable and that it was
material to his claims. Petitioner timely appealed.
4. Proceedings Pending Appeal
On October 19, 2020, Petitioner filed a motion to stay
removal pending the resolution of his petition for review, which
this court granted. On May 3, 2021, this court, at the
government's request, vacated in part the BIA's decision and
remanded the matter for the BIA to clarify its reasoning in finding
that Petitioner had not meaningfully addressed the IJ's denial of
deferral of removal under CAT, and if necessary, to make a
determination on the merits of said relief. On August 31, 2022,
the IJ denied Petitioner's application for CAT deferral and ordered
him removed to Brazil. Consequently, Petitioner and the government
jointly requested that we rescind the stay of removal previously
issued. As a result, on October 3, 2022, we lifted the stay. Soon
after, Petitioner was removed to Brazil, where he remains. Thus,
the only live issue before us is the Brazilian conviction's
validity for immigration purposes.
II. Standard of Review
"Where, as here, 'the BIA adopts and affirms an IJ's
decision, we review the IJ's decision to the extent of the
adoption, and the BIA's decision as to [any] additional ground.'"
López-Pérez v. Garland, 26 F.4th 104, 110 (1st Cir. 2022)
(alteration in original) (quoting Sunoto v. Gonzales, 504 F.3d 56,
- 11 -
59-60 (1st Cir. 2007)). We review factual findings for substantial
evidence, which we accept as true "unless the record is such as to
compel a reasonable factfinder to reach a contrary conclusion."
Dorce v. Garland, 50 F.4th 207, 212 (1st Cir. 2022) (quoting
Mazariegos-Paiz v. Holder, 734 F.3d 57, 64 (1st Cir. 2013)).
Questions of law are reviewed de novo, with some deference given
to the agency's reasonable interpretation. Id.III. Discussion
Petitioner argues that his Brazilian conviction was in
absentia and that both the IJ and BIA erred in determining that
said conviction is valid for immigration purposes, thus barring
him from obtaining asylum, withholding of removal, and
cancellation of removal. Even without an in absentia finding,
Petitioner argues that his Brazilian conviction is nevertheless
invalid for immigration purposes either because the proceedings
were fundamentally deficient -- a "travesty of justice" -- or
because the trial judge was politically motivated. We discern no
error.
A. Statutory Prerequisites for Relief
To qualify for asylum, an applicant must demonstrate
that he or she has not been convicted of a particularly serious
crime. See 8 U.S.C. § 1158(b)(2)(A)(ii). Moreover, the statute
provides that an applicant "who has been convicted of an aggravated
felony shall be considered to have been convicted of a particularly
- 12 -
serious crime." 8 U.S.C. § 1158(b)(2)(B)(i); see also 8 U.S.C.
§ 1231(b)(3)(B). An aggravated felony is a "crime of
violence . . . for which the term of imprisonment is at least "one
year." 8 U.S.C. § 1101(a)(43)(F). The same statutory bars apply
to an applicant who seeks withholding of removal. See DeCarvalho
v. Garland, 18 F.4th 66, 69-70 (1st Cir. 2021); 8 U.S.C.
§ 1231(b)(3)(B)(ii). Similarly, a noncitizen is ineligible for
cancellation of removal if he or she has been convicted of an
aggravated felony or a crime involving moral turpitude. See Soto-
Vittini v. Barr, 973 F.3d 20, 21 (1st Cir. 2020) ("A permanent
resident convicted of an 'aggravated felony' after admission is
not only removable under the INA, . . . but also ineligible for
cancellation of removal." (quoting 8 U.S.C. §§ 1227(a)(2)(A)(iii),
1229b(a))). Petitioner conceded before the IJ that his foreign
conviction, if found to be valid, constitutes an aggravated felony
and a particularly serious crime that statutorily bars the relief
sought (except for CAT deferral, which was denied on other grounds
as explained supra). Given the foregoing concession, and after
weighing the evidence, the IJ ultimately found the conviction to
be valid, statutorily barring Petitioner from relief. We discern
no error.
B. Petitioner's In Absentia Claim
Petitioner challenges the IJ's finding as to the
validity of his Brazilian conviction, arguing that it was in
- 13 -
absentia because he was only present at the arraignment hearing
and did not learn of his sentence until he eventually received
notice via a letter sent to him in jail. In support of his
contention, he quotes the Foreign Affairs Manual from the
Department of State which explains that "[a] conviction in absentia
does not constitute a conviction, unless the accused had a
meaningful opportunity to participate in the judicial
proceedings." Additionally, he advances that because the
information in a Form I-213 is presumed trustworthy, the agency
should have treated the form's characterization of his conviction
as reliable evidence that his conviction was in absentia. The
record before us belies Petitioner's arguments. Ample evidence
supports the IJ's findings, which were affirmed by the BIA.
Here, the record supports the BIA's conclusion that
Petitioner was able to meaningfully participate in his Brazilian
proceedings and thus his resulting conviction was not in absentia.
Petitioner was represented by court-appointed counsel at the
Brazilian court, was allowed to testify, the victim and two
witnesses -- the latter testifying in Petitioner's favor -- were
present, he offered documentary evidence (a police report and a
medical evaluation), and he got notice of his conviction, which he
appealed. Petitioner posits that his attorney did not cross-
examine the victim, however, the record indicates that, in fact,
the attorney could have asked her questions but chose not to, which
- 14 -
Petitioner admitted before the IJ. Petitioner is unable to point
to anything that suggests that having one hearing -- where the
victim, the accused, as well as other witnesses testified -
- renders a conviction in absentia. As Petitioner recognizes in
his brief, "[a] foreign conviction entered after a trial at which
the defendant was present suffices, in and of itself, to establish
probable cause." See Matter of V-D-B-, 8 I. & N. Dec. 608, 610
(B.I.A. 1960) (finding that the applicant's conviction in the
Netherlands was not a conviction in absentia when he had notice of
the proceedings, appeared after the conclusion, took no appeal,
and paid the fine).
Petitioner similarly advances that the immigration court
failed to do a "searching review" of the evidence supporting the
foreign conviction before finding it barred relief and thus the
conviction should be disregarded. He relies on sibling circuit
caselaw to back up his theory, arguing that in Esposito v. INS,
936 F.2d 911 (7th Cir. 1991), the Seventh Circuit held that the
BIA may disregard or give less weight to an in absentia conviction
when evidence calls into question the fundamental fairness of the
proceedings which generated said conviction. Id. at 914-15. He
further alleges that, contrary to the proceedings before the IJ,
the court in Esposito conducted a "careful and searching review of
the evidence" in order to corroborate its validity and fairness.
We find, without needing to reach the question of whether the rule
- 15 -
in Esposito applies in this circuit, that there is no merit to
Petitioner's argument. First, Esposito is readily distinguishable
because unlike the Petitioner's case, the Seventh Circuit was
presented with an actual in absentia conviction, which justified
closer inspection of the underlying offense. See id. at 915.
Second, far from conducting a "careful and searching review of the
evidence" underlying the conviction as Petitioner suggests, the
Esposito court reviewed the hearing for "exceptional procedural
infirmities" and concluded that there were none, such that the in
absentia conviction was valid for immigration purposes. Id.(noting Esposito was represented by counsel and was able to present
evidence, cross-examine witnesses, and make arguments to the
court). As we discuss infra, no exceptional procedural infirmities
existed in Petitioner's Brazilian proceedings to justify
disregarding his conviction. Thus Petitioner's Esposito argument
fails.
In an attempt to further question, and ultimately
invalidate his foreign conviction, Petitioner challenges an
explanation proffered by DHS regarding the statement contained in
Form I-213 (indicating that Petitioner was convicted in absentia),
which was relied upon by the IJ and BIA. He claims that DHS's
explanation was inadmissible due to its hearsay character and thus
prejudicial because it was the only evidence available to cast
- 16 -
doubt on the "inherently trustworthy" nature of Form I-213. We
review de novo. Dorce, 50 F.4th at 212.
Here, DHS clarified before the IJ that, after speaking
with colleagues in Brazil, Form I-213's statement indicating that
Petitioner "was convicted in Brazil for rape in absentia" was based
on a misinterpretation -- what it actually indicated was that
Petitioner had escaped from custody and was missing thereafter.
The IJ was cautious in giving significant weight to the
clarification provided by DHS but ultimately found it credible.
The BIA agreed.
An IJ's determination "shall be based only on the
evidence produced at the hearing." 8 U.S.C. § 1229a(c)(1)(A).
While DHS's statement could be regarded as hearsay, immigration
proceedings are not governed by the rules of evidence. See Yongo
v. I.N.S., 355 F.3d 27, 30 (1st Cir. 2004) ("The Federal Rules of
Evidence do not apply in INS proceedings."); Matter of Barcenas,
19 I. & N. Dec. 609, 611 (B.I.A. 1988). Petitioner's own testimony
about his attendance at the proceeding in Brazil indicated that
the form was incorrect, and from that point the form was no longer
inherently trustworthy. See Matter of Barcenas, 19 I. & N. Dec.
at 611 ("Absent any indication that a Form I-213 contains
information that is incorrect . . . , that document is inherently
trustworthy and admissible as evidence to
prove . . . deportability."). Here, "the record as a whole
- 17 -
presents a picture consistent with the IJ's adverse []
determinations." Jianli Chen v. Holder, 703 F.3d 17, 26 (1st Cir.
2012). Regardless of Form I-213, the evidence in the record (as
we have discussed supra) independently establishes that Petitioner
was not convicted in absentia. Thus, we find no error of law and
hold that the Brazilian conviction is valid for immigration
purposes. Having found that the Brazilian conviction was not in
absentia, we consider Petitioner's alternate claims.
1. Travesty of Justice
Petitioner posits that his foreign conviction was an
"unpersuasive travesty of justice" that should have persuaded the
IJ to evaluate the fundamental fairness of his foreign conviction.
He proffers that the Brazilian judge was biased, that the IJ gave
no credit to the recantation letter, and that he was only present
at the initial hearing. He additionally alleges that the BIA
failed to consider the merits of his claim.
Petitioner relies on sibling circuit caselaw that held
that the IJ erred by failing to consider the legitimacy of the
conviction where the foreign conviction had multiple mishaps and
was a "farce." See Doe v. Gonzales, 484 F.3d 445, 451-52 (7th
Cir. 2007).6 Even assuming that such a collateral attack on the
Doe involved the trial for the murder of one Jesuit priest
6
and five members of the order in El Salvador during the civil war
that raged from 1980 to 1992. Doe's trial attorney was on the
payroll of the high command of the Salvadoran armed forces and
- 18 -
foreign conviction is permitted,7 we are not persuaded that the
"farce" or "travesty of justice" labels apply here. The
circumstances in Doe are different from the case at hand. In Doe,
the trial attorney did not defend his client, presented no evidence
on Doe's behalf, did not cross-examine any of the witnesses, and
the judge trying the case failed to instruct the jury on the law.
Doe, 484 F.3d at 451. We do not need to discuss, once again, why
Petitioner's circumstances are distinct from the ones in Doe.
Moreover, Petitioner suggests that, unlike the court in Esposito,
936 F.2d at 911, here the IJ had "credible evidence of actual
innocence" -- the victim's recantation letter -- which he
disregarded. An IJ may "sift through relevant documents,
"focused his efforts not on defending [Doe] but on asserting the
innocence of the high command, though no members of that body were
on trial." 484 F.3d at 446-47, 451.
7 "Courts normally reject [noncitizens'] attempts in
immigration proceedings to mount collateral attacks on foreign
convictions," and "[o]nly if there is some evidence that the
foreign conviction was obtained in a manner that falls below the
standards accepted by any civilized system would it be appropriate
[to entertain a collateral attack on a foreign conviction]." Chia-
I Lui-Dix v. Holder, 528 Fed. App'x 595, 598 (7th Cir. 2013).
There is no per se rule that foreign convictions in absentia are
not valid for immigration purposes, although "a petitioner may
present evidence that calls into question the fundamental fairness
of the proceedings which generated an in absentia conviction, and
if that evidence is sufficiently compelling, the Board would be
precluded from giving it any weight at all." Esposito, 936 F.2d
at 914. In the rare case "in which the proceeding that resulted
in the conviction was demonstrably . . . a travesty -- a parody -
- of justice," the foreign conviction may be invalid for
immigration purposes. Doe, 484 F.3d at 445.
- 19 -
determining which documents are persuasive and which statements
within a particular document should be given weight." Jianli Chen
v. Holder, 703 F.3d at 26. The IJ considered the victim's
recantation letter but found it unreliable because Petitioner did
not provide an original copy of the letter (he claimed that a
digital copy was emailed to his wife), there was no evidence to
evaluate its authenticity, and the victim was not present to
testify or be cross-examined. See Mashilingi v. Garland, 16 F.4th
971, 978 (1st Cir. 2021) (explaining that the IJ did not err in
giving limited weight to petitioner's children's statements
because they were not available for cross-examination); Tawadrous
v. Holder, 565 F.3d 35, 39 n.2 (1st Cir. 2009) (agreeing with the
BIA's assessment that petitioner's father's statement had little
or no weight because it was an unauthenticated photocopy).
For the foregoing reasons, Petitioner falls well short
of even raising prima facie a basis for suggesting that the
Brazilian proceedings were a farce. The IJ considered all of the
evidence before him and made credibility determinations that well-
supported the denial of relief. We discern no error.
2. Politically Motivated Conviction
Lastly, Petitioner argues that his foreign conviction
was a politically motivated one that should not bar him from relief
under 8 U.S.C. § 1182(a)(2)(A)(i)(I), 8 U.S.C.
§§ 1101(a)(2)(A)(i)(I) and 1101(a)(43)(F), and 22 C.F.R.
- 20 -
§ 40.21(a)(6)(2006). His arguments can be summarized as follows:
He was almost killed -- before the rape charges -- by corrupt law
enforcement in his town because they wanted him "eliminated"; his
cousin politically challenged the Brazilian judge that handled his
rape proceedings and he was convicted because of the judge's bias;
and the IJ misinterpreted the term "political offense." However,
he points to no evidence supporting his first three conclusory
statements that the conviction was politically motivated rather
than the result of the rape accusation and victim's testimony. As
to the "political offense" interpretation, Petitioner
perfunctorily posits that the offense itself was not inherently
political, rather he argues that his conviction was the result of
the "corrupt [Brazilian justice] system" and the "political animus
and prejudice of the judge," which prevented him from having a
fair trial. He does not, however, elaborate on this or otherwise
support said assertion with legal authority. Where the substantial
evidence supports the IJ's conclusion that Petitioner's conviction
was not politically motivated, we discern no error.
IV. Conclusion
For all the above reasons, Andrade-Prado's petition is
DENIED.
- 21 -