Cabas v. Barr, No. 18-1630

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtKAYATTA, Circuit Judge.
Citation928 F.3d 177
Parties Oswaldo CABAS, Petitioner, v. William P. BARR, Attorney General, Respondent.
Docket NumberNo. 18-1630
Decision Date01 July 2019

928 F.3d 177

Oswaldo CABAS, Petitioner,
v.
William P. BARR, Attorney General, Respondent.

No. 18-1630

United States Court of Appeals, First Circuit.

July 1, 2019


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.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

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,

928 F.3d 180

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 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 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

928 F.3d 181

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). 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. 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" 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

928 F.3d 182

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.

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...

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9 practice notes
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Mayo 2020
    ...occurs if the BIA "committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) ). Within this deferential framework, "[w]e review questio......
  • Shurtleff v. City of Bos., No. 20-1158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 22 Enero 2021
    ..."[A] flag that references religion by using religious symbols in part of its field is not itself a religious flag." Shurtleff II, 928 F.3d at 177. As the plaintiffs repeatedly emphasize, Rooney does not even look at the flag designs before granting most approvals. And when he reviewed what ......
  • Diaz Ortiz v. Garland, 19-1620
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 10 Enero 2022
    ...in immigration proceedings, the evidentiary standards deployed by immigration judges ‘are generally more lax.’ ") (quoting Cabas v. Barr, 928 F.3d 177, 184 (1st Cir. 2019) ).II.The majority tries unsuccessfully to justify its reasoning by resorting to the principle of constitutional avoidan......
  • Morales v. Barr, No. 17-1634
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 24 Julio 2020
    ...Barr, 931 F.3d 35, 39 n.4 (1st Cir. 2019) ("[W]e are constrained to consider only the record that was before the agency."); Cabas v. Barr, 928 F.3d 177, 181 n.1 (1st Cir. 2019) (declining to consider materials submitted for the first time with the opening appellate brief).With respect to th......
  • Request a trial to view additional results
9 cases
  • Thompson v. Barr, No. 18-1823
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 21 Mayo 2020
    ...occurs if the BIA "committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way." Cabas v. Barr, 928 F.3d 177, 181 (1st Cir. 2019) (quoting Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir. 2014) ). Within this deferential framework, "[w]e review questio......
  • Shurtleff v. City of Bos., No. 20-1158
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 22 Enero 2021
    ..."[A] flag that references religion by using religious symbols in part of its field is not itself a religious flag." Shurtleff II, 928 F.3d at 177. As the plaintiffs repeatedly emphasize, Rooney does not even look at the flag designs before granting most approvals. And when he reviewed what ......
  • Diaz Ortiz v. Garland, 19-1620
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 10 Enero 2022
    ...in immigration proceedings, the evidentiary standards deployed by immigration judges ‘are generally more lax.’ ") (quoting Cabas v. Barr, 928 F.3d 177, 184 (1st Cir. 2019) ).II.The majority tries unsuccessfully to justify its reasoning by resorting to the principle of constitutional avoidan......
  • Morales v. Barr, No. 17-1634
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 24 Julio 2020
    ...Barr, 931 F.3d 35, 39 n.4 (1st Cir. 2019) ("[W]e are constrained to consider only the record that was before the agency."); Cabas v. Barr, 928 F.3d 177, 181 n.1 (1st Cir. 2019) (declining to consider materials submitted for the first time with the opening appellate brief).With respect to th......
  • Request a trial to view additional results

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