Cuesta-Rojas v. Garland

• Decision Date: 15 March 2021
• Docket Number: No. 20-1302,20-1302
• Citation: 991 F.3d 266
• Parties: Darwin Aliesky CUESTA-ROJAS, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 266

Darwin Aliesky CUESTA-ROJAS, Petitioner,

v.Merrick B. GARLAND,^* United States Attorney General, Respondent.

No. 20-1302

United States Court of Appeals, First Circuit.

March 15, 2021

Irene C. Freidel, with whom PAIR Project was on brief, for petitioner.

Gene P. Hamilton, Counselor to the Attorney General, U.S. Department of Justice, Office of the Attorney General, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, Zoe J. Heller, Senior Litigation Counsel, and Katherine S. Fischer, U.S. Department of Justice, Office of Immigration Litigation, Civil Division, were on brief, for respondent.

Before Lynch, Lipez, and Barron, Circuit Judges.

BARRON, Circuit Judge.

Darwin Aliesky Cuesta Rojas ("Cuesta Rojas"), a native and citizen of Cuba, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We vacate and remand.

I.

Cuesta Rojas entered the United States without inspection in March 2019 and was apprehended at an unknown location near the southern border. After the United States Department of Homeland Security ("DHS") took him into custody, Cuesta Rojas expressed a fear of returning to Cuba. A credible fear interview was then scheduled.

An asylum officer conducted the credible fear interview by telephone in Spanish on May 8, 2019. The interview lasted for one hour and nine minutes.

The asylum officer took notes during the interview and also prepared a short, two-paragraph "Summary of Testimony" that was appended to the asylum officer's interview notes. The document as a whole contained boxes that the interviewer marked to confirm that Cuesta Rojas had been read the summary and had agreed that it was accurate. Another box indicated that the interviewer had asked whether Cuesta Rojas had "any changes/corrections" to the summary and that he had answered "no."

According to the summary, Cuesta Rojas told the asylum officer that he is "considered to be an opponent of the Cuban gov[ernment]" and that he had been "arrested, detained, beaten, and threatened [with] prison for being against the Cuban government ... on a number of occasions" by individuals associated with the Cuban police.

Cuesta Rojas reviewed the summary and agreed that it was accurate. The asylum officer found Cuesta Rojas credible and referred his case to immigration court.

Cuesta Rojas remained in detention as he awaited further immigration court proceedings. On June 5, 2019, DHS served Cuesta Rojas with a Notice to Appear that charged him with removability under 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), (a)(6)(A)(i). At his initial appearance on June 14, 2019, Cuesta Rojas agreed, at the Immigration Judge's ("IJ") prompting, to have his case continued to allow him time to look for an attorney. Cuesta Rojas also affirmed that he understood that, without an attorney, he might be called upon to represent himself.

Cuesta Rojas was unable to find an attorney, and at the next hearing on July 5, 2019, acting pro se, he conceded removability. The IJ advised Cuesta Rojas that he might be eligible for asylum and instructed him to complete an application (Form I-589).

At a subsequent hearing on July 18, 2019, Cuesta Rojas, still pro se, filed an I-589 application, in which he claimed that he feared political persecution and torture upon a return to Cuba. The IJ accepted this filing but advised Cuesta Rojas in general language that "corroborating evidence" -- "such as identity documents," "witnesses," "affidavits, statements, or letters" -- might be needed at the subsequent merits hearing in order for Cuesta Rojas to qualify for asylum. The IJ also told Cuesta Rojas that he could "provide ... documents or papers to show things like membership in a particular political party," as well as "police reports, medical records, and court records about what happened to you and others like you in your country." Cuesta Rojas indicated that he understood.

The removal proceedings commenced as scheduled on July 25, 2019. Cuesta Rojas was again pro se. He testified about eight incidents of interrogation, detention, and assault by Cuban officials or individuals acting in concert with them, which he claimed occurred as a result of his anti-Castro political beliefs and membership in the Cuban Independent and Democratic Party ("CID Party"). Cuesta Rojas also submitted various documents to the IJ as potential corroboration for his account. The submitted documents included a copy of Cuesta Rojas's passport, his birth certificate, a document indicating that he had no criminal record in Cuba, a receipt of items seized from him by the Cuban Ministry of the Interior, a letter from a delegate of the CID Party discussing Cuesta Rojas's party membership, and the U.S. State Department's Cuba 2018 Human Rights Report.

At the end of the hearing, the IJ orally denied Cuesta Rojas's application for relief. The IJ explained in its oral ruling that, "as an initial matter," it was "called on to assess this respondent's credibility." The IJ then noted that it "must keep in mind that there must be specific and cogent reasons to question the respondent's credibility" but that "having witnessed the respondent's testimony and reviewed the evidence of record," it found that "respondent is not a credible witness."

In support of that conclusion, the IJ focused on the fact that Cuesta Rojas had been under oath during the initial credible fear interview and also at the asylum hearing but that in the IJ's view there were "several significant discrepancies" between his interview account of what he had endured in Cuba and his hearing account. In consequence, the IJ explained that "based on these significant discrepancies," it doubted "whether [Cuesta Rojas] was ever detained ... [or] arrested in Cuba."

In addition, the IJ also found that Cuesta Rojas's application had "very significant shortcomings as to corroborating evidence," by pointing in particular to "missing" documents -- such as medical records and letters from family members. The IJ further found that Cuesta Rojas's explanations for not submitting such documents were "hard to believe."

Because the IJ determined that Cuesta Rojas was "not a credible witness," it found that he had "failed to establish his burden of proof" with respect to his application for asylum and request for withholding of removal and protection under the CAT. Accordingly, it denied him relief and ordered his removal.

Cuesta Rojas, still pro se, timely appealed the IJ's ruling to the BIA. In addition to a statement of reasons for that appeal, Cuesta Rojas submitted new documents to the BIA as potential corroboration for his account. In particular, Cuesta Rojas submitted documents purporting to be hospital notes stating that he had been treated in September 2017 for a "wound about 3 cm [in the] left lateral part of the abdomen," and similar notes indicating treatment in December 2017 in the form of "minor surgery" for a "scalp wound." Cuesta Rojas also submitted to the BIA what he characterized as a "warning letter" from the Cuban Ministry of the Interior stating that Cuesta Rojas had been "interrogated on repeated occasions for behavior of disaffection against the Revolution"; a document indicating that Cuesta Rojas had been arrested for "demonstrat[ing] against the revolution"; and a document purporting to have been signed by four members of a Committee for the Defense of the Revolution stating that Cuesta Rojas had been "unsubscribe[d]" for counterrevolutionary ideas, his "repeated[ ] state[ments] that in Cuba human rights are violated," and his failure to pay dues.

The BIA dismissed Cuesta Rojas's appeal on February 12, 2020, explaining that it "decline[d] to set ... aside as clearly erroneous" the IJ's decision to deny "relief in this case based on an adverse credibility finding and the respondent's failure to corroborate his claim." (emphasis added). The BIA also declined to remand the case in light of the evidence submitted by Cuesta Rojas for the first time on appeal, observing that Cuesta Rojas had "not explained how he obtained this evidence ..., and why he was unable to present it during the proceedings before the Immigration Judge." Further, the BIA added, "the newly submitted evidence does not address or resolve the credibility concerns raised by the Immigration Judge."

After the BIA issued its decision, Cuesta Rojas secured representation, and this counseled petition for review followed.

II.

Cuesta Rojas's petition for review of the BIA's decision focuses on whether its affirmance of the IJ's adverse credibility determination -- which provided the sole basis for the denial of his asylum, withholding of removal, and CAT claims, see Mboowa v. Lynch, 795 F.3d 222, 226 (1st Cir. 2015) ; Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007) (explaining that an "adverse credibility determination can prove fatal" to an I-589 application) -- is sustainable. Moreover, in pressing that contention, Cuesta Rojas's petition argues chiefly that the BIA's decision is not supported by substantial evidence, as it must be to be sustained. See Gitau v. Sessions, 878 F.3d 429, 432 (1st Cir. 2017).¹

With respect to that contention, our review is deferential. We must "uphold credibility findings if ‘the IJ has given reasoned consideration to the evidence and has provided a cogent explanation for his finding.’ " Huang v. Holder, 620 F.3d 33, 37 (1st Cir. 2010) (quoting Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir. 2008) ). In addition, our review in all events is of the record "as a whole," Al-Amiri v. Rosen, 985 F.3d 1, 4 (1st Cir. 2021) (quoting Sanabria Morales v. Barr, 967 F.3d 15, 19 (1st Cir. 2020) ), and not merely of isolated pieces of it.

A.

Before we begin our review, it is important to clarify the nature of the findings that we must scrutinize. As we explained in recounting the procedural history, the IJ referred in...