Andrade-Prado v. Garland
| Decision Date | 04 April 2023 |
| Docket Number | 20-1913 |
| Parties | FLAVIO ANDRADE-PRADO, JR., Petitioner, v. MERRICK B. GARLAND, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
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.
Before Kayatta, Gelpi, and Montecalvo, Circuit Judges.
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.
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 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.
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 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.
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 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 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 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.
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, 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.
Regarding the CAT claim -- focusing solely on CAT deferral -- the IJ decided that the evidence was insufficient to indicate that Pet...
To continue reading
Request your trial