Morales v. Barr, No. 17-1634

• Citation: 967 F.3d 15
• Decision Date: 24 July 2020
• Docket Number: No. 17-1634
• Parties: Luis Elias SANABRIA MORALES, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

967 F.3d 15

Luis Elias SANABRIA MORALES, Petitioner,

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

No. 17-1634

United States Court of Appeals, First Circuit.

July 24, 2020

Ilana Etkin Greenstein, American Immigration Lawyers' Association, Gregory Romanovsky, and Romanovsky Law Offices, on brief for petitioner.

Enitan Omotayo Otunla, Trial Attorney, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Zoe J. Heller, Senior Litigation Counsel, on brief for respondent.

Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

LYNCH, Circuit Judge.

Luis Elias Sanabria Morales petitions for review of a decision by the Board of Immigration Appeals ("BIA") to deny his application for deferral of removal under the United Nations Convention Against Torture ("CAT"). We deny the petition.

I.

Sanabria was born in Venezuela on August 7, 1972. He last entered the United States on November 5, 2012, and was convicted of heroin trafficking in 2014.

On January 21, 2015, the Department of Homeland Security ("DHS") served Sanabria with a notice of intent to issue a final administrative removal order that informed him that he was subject to administrative removal under 8 U.S.C. § 1228(b). The notice alleged that Sanabria was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(B).

On February 2, 2015, Sanabria requested withholding of removal under 8 U.S.C. § 1231(b)(3) or CAT protection. He submitted a statement that claimed he feared that drug traffickers who forced him to smuggle drugs to the United States would retaliate against him if he returned to Venezuela. He also claimed he feared persecution, torture, and death because of his earlier membership in a Venezuelan opposition political party called COPEI. On February 17, 2015, DHS issued a final administrative removal order and warrant of removal against Sanabria that found him removable based on his aggravated felony conviction and ineligible for any discretionary relief.

On June 30, 2016, a DHS asylum officer conducted a reasonable fear interview of Sanabria. The officer found that Sanabria's "testimony was sufficiently detailed, consistent and plausible in material respects" and found it credible. Sanabria was placed into withholding-only proceedings and referred to an immigration judge ("IJ").

On August 29, 2016, the IJ gave Sanabria a two-week continuance to file his application and suggested that he find a lawyer. On September 14, 2016, the IJ gave Sanabria another two-week continuance because he was still looking for a lawyer. On September 28, 2016, Sanabria told the IJ that he "talked to one attorney and he promised to visit me this week." The IJ gave Sanabria another three-week continuance. On October 19, 2016, the IJ asked Sanabria if he was still looking for a lawyer. Sanabria answered, "I'm going to do this myself, your honor." He then repeated, "I'm going to represent myself."

On the same day, Sanabria filed an asylum application seeking withholding of removal and submitted documentation in support of his application. On January 17, 2017, he submitted further documentation. On January 26, 2017, an IJ heard the merits of Sanabria's application. Although Sanabria had been provided a list of attorneys offering pro bono services and granted three continuances to seek counsel, he represented himself.

At the outset of the hearing, the IJ noted that Sanabria's application would be considered an application for CAT deferral of removal because Sanabria's conviction made him ineligible for withholding of removal, either statutory or under the CAT. See 8 U.S.C. § 1231(b)(3)(B)(ii) ; 8 C.F.R. §§ 1208.17(a), 1208.18(a)(1). Sanabria replied that he was trying to withdraw his guilty plea and instead go to trial, but he did not otherwise dispute the IJ's statement that the conviction limited his application to deferral of removal.

At the hearing, Sanabria testified as follows. Since 1999, Sanabria owned an electronics and clothing store in San Antonio, Venezuela, his hometown. He made numerous trips to the United States to buy inventory for the store. He is married and has one son.

In September 2012, Isaac Alcorcon, the owner of an auto parts store in a nearby town, approached Sanabria to buy a laptop and an iPad. Alcorcon then asked Sanabria if he wanted to work as a drug trafficker. Sanabria refused. Alcorcon later bought another iPad from Sanabria and then called Sanabria to tell him that it was not working and to demand its repair or a refund. When Sanabria went to Alcorcon's business for the repair, Alcorcon was with two individuals, one named Jorge and one wearing a police uniform. When Sanabria began to use the supposedly broken iPad, he saw that it had been loaded with photos of his wife and child. Alcorcon told Sanabria that he should reconsider his refusal to work as a drug trafficker.

Sanabria ultimately agreed to do so. Alcorcon told Sanabria not to worry because "he own[ed] the police." Sanabria did not report Alcorcon to the police because he believed the police were corrupt and worked with criminals like Alcorcon.

On November 5, 2012, Sanabria traveled from Venezuela to Boston via Aruba after ingesting balloons of heroin. Jorge drove him to the airport in Caracas. Officers from the Venezuelan National Guard escorted Sanabria to his gate so that he could avoid security.

In Boston, an individual called Chiquito met Sanabria. They checked into a hotel in Chelsea, Massachusetts, so that Sanabria could expel the balloons of heroin. Before he had expelled the balloons, Sanabria collapsed in the hotel room, where hotel staff found him. While being taken to the emergency room in an ambulance, Sanabria vomited plastic condoms containing heroin.

Sanabria stayed in the hospital in a coma for four days. After he woke up, he spoke to his wife in Venezuela, who passed on instructions from Alcorcon that he was to waive his right to an attorney, decline assistance from the Venezuelan consulate, and confess to the police that he had been carrying drugs. Sanabria followed these instructions and was arrested. After his arrest, Alcorcon contacted Sanabria's wife to say that she had done "the right thing."

Sanabria's wife and son then moved twice within Venezuela to hide from Alcorcon. Neither Alcorcon nor other drug traffickers made contact with them after November 2012.

Sanabria was charged in Massachusetts court with conspiracy to transport heroin. He attempted to plead guilty in November 2013, but the plea was rejected when Sanabria raised the possibility of a duress defense. Ultimately, on April 18, 2014, he pleaded guilty to the lesser offense of trafficking in eighteen grams or more of heroin and sentenced to not less than three and a half years and not more than six years. He was the only one arrested or prosecuted, either in the United States or Venezuela.

Shortly after Sanabria's conviction, in 2014, his brother-in-law was killed at Sanabria's store, which was then burned. Sanabria testified that he suspected the drug traffickers killed his brother-in-law and burned his store to threaten him.

Sanabria testified that he feared that he would be persecuted, tortured, or killed if he returned to Venezuela. He said the drug traffickers would learn of his return to Venezuela from connections at the airport.

The IJ denied Sanabria's application. After carefully recounting Sanabria's testimony, the IJ held that Sanabria's conviction was an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(B) and presumptively a particularly serious crime that barred him from withholding of removal. See 8 U.S.C. § 1231(b)(3)(B)(ii).

With respect to deferral of removal, the IJ then held that Sanabria had not established that it was more likely than not that he would be tortured by or with the acquiescence of the Venezuelan government if he were removed. He noted that Sanabria was unaware of the location of Alcorcon and his collaborators and that Sanabria's wife, son, and mother continued to live in Venezuela, unharmed by drug traffickers or by the government. He also noted that Sanabria had no evidence that Alcorcon was responsible for burning Sanabria's store or killing his brotherin-law, and that the drug traffickers had not contacted Sanabria since his arrest in 2012. For these reasons, the IJ concluded that Sanabria's claim that he would be tortured was speculative.

On February 27, 2017, Sanabria appealed to the BIA. On the basis that his computer access in jail was limited, Sanabria sought and received a one-month extension to file his brief with the BIA. He did not ask for more time to find counsel and ultimately filed his BIA brief pro se on May 8, 2017. He did not argue that his conviction was not for a particularly serious crime or otherwise challenge the IJ's finding that his conviction rendered him eligible only for deferral of removal. He argued that his fear was not speculative, citing to the country condition report's description of the Venezuelan government's ties to drug cartels. He also submitted new evidence, including an email from his tenant to his wife, recounting a January 2017 incident in which three men in Venezuelan National Guard uniforms entered Sanabria's apartment, asked about Sanabria's whereabouts, and beat the tenant's husband; a police report lodged by the tenant's husband; and a medical report about the husband's treatment after the incident.

On May 24, 2017, the BIA dismissed Sanabria's appeal. It held that Sanabria had not "meaningfully dispute[d] that, as a result of a conviction for a particularly serious crime, he is precluded from being granted either form of withholding of removal." It then "agree[d] with the Immigration Judge that [Sanabria] ha[d] not established eligibility for deferral of removal under the CAT." It found that Sanabria's claim that he would be tortured was "based upon a series of assumptions and speculations." It...