Rodríguez-Villar v. Barr, 18-1861

• Decision Date: 11 July 2019
• Docket Number: No. 18-1861,18-1861
• Citation: 930 F.3d 24
• Parties: Flemi Barnodis RODRÍGUEZ-VILLAR, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

930 F.3d 24

Flemi Barnodis RODRÍGUEZ-VILLAR, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 18-1861

United States Court of Appeals, First Circuit.

July 11, 2019

Kevin MacMurray and MacMurray & Associates on brief for petitioner.

Joseph H. Hunt, Assistant Attorney General, Civil Division, U.S. Department of Justice, Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, and John F. Stanton, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.

SELYA, Circuit Judge.

It is bad enough when acts in the nature of persecution are employed to chill the free expression of political opinion. It exacerbates the problem though, when a reviewing tribunal turns such acts upside down and heralds their chilling effect as "proof" that no likelihood of persecution exists. Because the agency’s decision in this case rests upon just such an error, we grant the petition for judicial review, vacate the decision below, and remand for further proceedings.

The petitioner, Flemi Barnodis Rodríguez-Villar, is a Dominican national.¹ The immigration judge (IJ) found him credible, so we draw the background facts largely from his testimony.

The petitioner entered the United States, without documentation, in 2003. In 2011, he returned to the Dominican Republic to care for his ailing father. Around May of that year, he opened a supermarket and soon began hosting meetings of the Dominican Revolutionary Party (PRD) at his store. In short order, he began receiving telephone calls from members of the opposition party — the Dominican Liberation Party (PLD) — which at that time controlled the government. The callers warned him that if he continued to host PRD meetings at his store, he and his family would be harmed.

The petitioner did not yield. A few weeks later, his home was ransacked and messages were written on the walls threatening him and his family with harm unless he stopped hosting PRD meetings. The petitioner reported this incident to the police, who told him that they would investigate in exchange for money and liquor from his store. Even though the petitioner complied, the police did nothing. The meetings continued and so did the mistreatment. The petitioner moved his family into a new home in a different neighborhood. Soon thereafter, that house was broken into, many of his appliances were stolen, and another threat of violence was scrawled on a wall.

Matters came to a head several months later. As the petitioner was closing his store for the day, he was set upon and beaten by two men. His attackers admonished that if he did not stop hosting PRD meetings, he "knew what was going to happen." The men added that he should "get ready because of what they were going to do to [his] family."

Fearing for his family’s safety, the petitioner sent his wife and daughter to the United States. He remained in the Dominican Republic but stopped hosting the PRD meetings and "had to abandon [his] business" because "[i]t was no longer safe to be there." Once he cut those ties with the PRD, he experienced no further threats or violence.

In November of 2012, the petitioner traveled to the United States to rejoin his family. He entered the United States without documentation and surrendered himself to Border Patrol agents in Texas, explaining that he feared he would be persecuted if he returned to the Dominican Republic. After an interview, an asylum officer determined that the petitioner had a credible fear of harm in his homeland. The petitioner was paroled into the United States. The Department of Homeland Security proceeded to institute removal proceedings against him, charging him as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). The petitioner countered by filing cross-applications for withholding of removal and protection under the United Nations Convention Against Torture (CAT).²

When the petitioner’s case came on for hearing before the IJ, he conceded removability. After taking testimony, the IJ denied the petitioner’s applications for relief and ordered his removal. The petitioner repaired to the Board of Immigration Appeals (BIA), which affirmed the IJ’s decision. This timely petition for judicial review followed.

In the immigration context, judicial review typically focuses on the final decision of the BIA. See Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016). But where "the BIA merely adds its gloss to the IJ’s findings and conclusions, we treat the two decisions as one." Id. This is such a case.

Our standard of review is familiar. We will uphold findings of fact in removal proceedings "as long as they are supported by substantial evidence on the record as a whole." Pulisir v. Mukasey, 524 F.3d 302, 307 (1st Cir. 2008). Put another way, we will leave the agency’s findings of fact intact "unless the record is such as to compel a reasonable factfinder to reach a contrary determination." Id. Legal conclusions, though, engender de novo review, "with some deference to the agency’s reasonable interpretation of statutes and regulations that fall within its purview." Id.

With this standard in place, we turn to the particulars of the case at hand. We start with the petitioner’s claim for withholding of removal. To prevail on such a claim, an alien bears the burden of demonstrating a clear probability that his life or freedom would be threatened in his homeland on account of race, religion, nationality, membership in a particular social group, or political opinion. See Arévalo-Girón v. Holder, 667 F.3d 79, 82 (1st Cir. 2012) (citing 8 U.S.C. § 1231(b)(3)(A) ; 8 C.F.R. § 208.16(b) ). This task can be accomplished in one of two ways: an alien can demonstrate either that he has suffered past persecution, thus giving rise to a rebuttable presumption of future persecution, or he can demonstrate an independent likelihood of future persecution should he be returned to his homeland. See id. As it applies in immigration cases, "persecution" is a term of art. "To qualify as persecution, a person’s experience must rise above unpleasantness, harassment, and even basic suffering." Rebenko v. Holder, 693 F.3d 87, 92 (1st Cir. 2012) (quoting Nelson v. I.N.S., 232 F.3d 258, 263 (1st Cir. 2000) ). And in all events, the alien must establish a nexus between the described harm and one of the five statutorily protected grounds. See Arévalo-Girón, 667 F.3d at 82.

Here, the government does not dispute that the petitioner was mistreated on account of a statutorily protected ground: his pro-PRD political opinion. We thus train the lens of our inquiry on whether the petitioner established either that the mistreatment he endured was sufficiently severe as to constitute past persecution (entitling him to a rebuttable presumption of future persecution) or an independent likelihood of future persecution.

Even though the agency — a term that we use as a shorthand to cover both the BIA and the IJ, collectively — deemed the petitioner credible, it nonetheless found that he failed to establish past persecution because the harm complained of (two threatening telephone calls, home invasions, and a beating, all of which occurred over a span of approximately nineteen months) did not rise above the level of harassment, unpleasantness, and basic suffering. The agency went on to find that the petitioner had not established an independent likelihood of future persecution, noting that he had remained in the Dominican Republic for a significant period after he was attacked without incurring any further threats or experiencing any further harm. The agency made no finding regarding whether the imprecations directed at the petitioner constituted credible death threats.

We turn first to the agency’s finding concerning past persecution. To establish past persecution, an alien ordinarily must demonstrate "something like a pattern or prolonged period of events." Khan v. Mukasey, 549 F.3d 573, 577 (1st Cir. 2008) ; see Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) ("In determining whether alleged incidents rise to the level of persecution, one important factor is whether ‘the mistreatment can be said to be systematic rather than reflective of a series of isolated incidents.’ " (quoting Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) )). When concluding here that the threatening calls, home invasions, scrawled warnings, and climatic beating did not rise to the level of persecution, the agency overlooked several significant facts.

The record makes manifest that there were at least five incidents, increasing in severity from telephone calls to home invasions to physical violence accompanied by threats of future harm to the petitioner and his family. This escalating series of events ended abruptly as soon as the petitioner stopped hosting the PRD meetings. It is not at all apparent to us why these threats and violent acts — which seem to have ceased only because the petitioner gave into the PLD’s demands — do not comprise a pattern sufficient to show past persecution. The agency "may well have had valid reasons for its [contrary] conclusion, but if so those reasons have not been articulated ‘with sufficient particularity and clarity.’ " Halo v. Gonzales, 419 F.3d 15, 19 (1st Cir. 2005) (citation omitted) (quoting Gailius v. I.N.S., 147 F.3d 34, 46 (1st Cir. 1998) ); see Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir. 2005) (explaining that "[a]n IJ is obligated to offer more explanation when the record suggests strong arguments for the petitioner that the IJ has not considered").

What is more, the agency failed to assess whether the final threat — that the petitioner "knew what was going to happen ... to [his] family" — constituted a credible death threat.³ This is important because credible death threats, in and of themselves, may constitute compelling evidence of persecution. See, e.g., Lopez de Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007) ; Un v....