Rodriguez-Villar v. Barr

United States Court of Appeals
For the First Circuit
No. 18-1861
FLEMI BARNODIS RODRÍGUEZ-VILLAR,
Petitioner,
v.
WILLIAM P. BARR,
Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
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.
July 11, 2019
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
1 The record reflects inconsistent spellings of the
petitioner's name. For simplicity's sake, we use the spelling
employed by the Board of Immigration Appeals.
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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
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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
2 Although the petitioner initially indicated an intention to
apply for asylum, he did not press such a claim, presumably because
his initial arrival in the United States (in 2003) placed him well
outside the one-year window for such an application. See 8 U.S.C.
§ 1158(a)(2)(B) (providing that asylum application must be "filed
within 1 year after the date of the alien's arrival in the United
States").
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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
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(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
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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
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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
3 In its brief, the government does not dispute that these
menacing words constituted a death threat. It argues instead that
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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. Gonzáles, 415 F.3d 205, 210 (1st Cir. 2005).
Although the agency is not required to discuss every
piece of evidence, it must, at a minimum, "fairly appraise the
record" and "cannot turn a blind eye to salient facts." Sihotang
v. Sessions, 900 F.3d 46, 51 (1st Cir. 2018). Because the agency
failed to grapple with the grave nature of the threats and appears
to have placed the length of time that the petitioner was under
the compulsion of his persecutors in the wrong pan of the scale,
we conclude that the agency's "reasoning is inadequate to support
a finding of no past persecution." Mihaylov v. Ashcroft, 379 F.3d
15, 23 (1st Cir. 2004).
This brings us to the agency's analysis of whether the
petitioner established an independent likelihood of future
persecution. We have held before that the agency cannot simply
sweep material evidence under the rug but, rather, must consider
such evidence and factor it into the decisional calculus. See,
e.g., Sok v. Mukasey, 526 F.3d 48, 54-55 (1st Cir. 2008); Mihaylov,
379 F.3d at 22; Gailius, 147 F.3d at 46-47. Overlooking material
"[b]ecause the threats to Petitioner were not imminent and his
assailants did not attempt to carry them out, they do not
constitute persecution." The government's attempt to confess and
avoid highlights the need for an agency finding.
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evidence is normally a sin of omission. Here, however, the agency
was guilty of something worse: it did not simply ignore the fact
that the petitioner's political activity was chilled; instead, it
used that evidence against the petitioner, finding that the period
of time during which there were no threats negated any likelihood
of future persecution. This reasoning stands logic on its head.
That an alien can escape harm by ceasing to express his political
opinion tends to prove the efficacy of the persecution, not to
disprove the alien's fear of persecution on account of his
political opinion. Cf. Kazemzadeh v. U.S. Att'y Gen., 577 F.3d
1341, 1354 (11th Cir. 2009) (concluding that "having to practice
religion underground to avoid punishment is itself a form of
persecution"); Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir.
2004) (finding "clear error of law" in assumption "that one is not
entitled to claim . . . religious persecution if . . . one can
escape the notice of the persecutors by concealing one's
religion"). Indeed, the very fact that threats impel an alien to
soft-pedal his political opinions is quite likely an indication
that his fear of persecution is real.
Viewing the situation from another angle confirms this
intuition. A principal goal of persecuting the expression of
political opinion is to silence those who cleave to it in the hope
that their political views will not gain traction. Cf. Muhur, 355
F.3d at 961 (noting that "[o]ne aim of persecuting a religion is
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to drive its adherents underground"). So here: the purpose of
the PLD's threats and violence was to coerce the petitioner to
stop hosting PRD meetings. That the threats and violence sent a
convincing enough message to frighten the petitioner into
complying is evidence in support of his claim, not evidence against
it. The agency's contrary reasoning would lead to the bizarre
result that persons who experienced threats that were sufficiently
credible to cause them to cease expressing their political opinion
would not be eligible for immigration relief. Cf. Cordero-Trejo
v. I.N.S., 40 F.3d 482, 489 (1st Cir. 1994) (concluding that "to
infer that an asylum applicant is unlikely to be persecuted because
he and his relatives were not killed during attempts to terrorize
them 'lead[s] to the absurd result of denying asylum to those who
have actually experienced persecution and were fortunate enough to
survive'" (alteration in original) (quoting Del Valle v. I.N.S.,
776 F.2d 1407, 1413 (9th Cir. 1985))).
Despite the disingenuous nature of the agency's
reasoning, the government attempts to defend it. Its brief cites
several cases in which courts have upheld denials of immigration
relief under what the government claims are "comparable
circumstances." But the government reads those cases through rose-
colored glasses. None of the cases that it cites involves
circumstances in which an alien ceased to engage in statutorily
protected activity due to the prospect of further threats or
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violence. See, e.g., Stepanyan v. Holder, 580 F. App'x 588, 590
(9th Cir. 2014) (denying application for relief based on alien's
husband's political activity where husband had left country and
alien herself was not politically active); Morina v. Att'y Gen. of
U.S., 427 F. App'x 145, 149 (3d Cir. 2011) (per curiam) (denying
application for relief because political landscape had changed
materially since aliens' departure); Myint Oo Lwin v. Gonzales,
220 F. App'x 36, 39 (2d Cir. 2007) (finding alien's "1988 political
activities [not] relevant to his 2004 asylum claim" because he "no
longer asserts a fear of persecution due to his political
activities or opinion").
To say more about the agency's resolution of the
petitioner's application for withholding of removal would be to
paint the lily. We conclude that the agency committed legal error
both in overlooking critical evidence supporting the petitioner's
claim for withholding of removal and in using such evidence as
part of its rationale for denying that claim. While
Rumpelstiltskin is said to have converted dross into gold, the
agency cannot convert evidence favorable to an alien into evidence
unfavorable to the alien simply by ignoring the context of such
evidence.
This leaves the agency's denial of the petitioner's
application for protection under the CAT. To be eligible for CAT
protection, "an alien must show that it is more likely than not
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that he will be tortured if returned to his homeland." Jiang v.
Gonzales, 474 F.3d 25, 32 (1st Cir. 2007); see Efe v. Ashcroft,
293 F.3d 899, 907 (5th Cir. 2002) (explaining that CAT protection
is not triggered by persecution but, rather, must meet the higher
bar of torture). For this purpose, "[t]orture is defined as any
act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person . . . when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity." 8 C.F.R. § 208.18(a)(1). Torture does
not, however, "include lesser forms of cruel, inhuman or degrading
treatment or punishment." Id. § 208.18(a)(2).
Here, the agency made a conclusory finding that the
petitioner had not adduced enough evidence to show a likelihood
that he would be subjected to torture at the hands of, or with the
acquiescence of, the Dominican government. Yet once again, the
agency failed to offer a reasoned explanation for its conclusion.
Consequently, we are unable to determine whether the flaws that
permeated the agency's analysis of the petitioner's withholding of
removal claim also compromised its barebones analysis of his CAT
claim. In particular, it is not clear to us whether the agency
improperly considered the period of time during which the
petitioner's political activity was chilled as evidence against
his claim that he would likely be tortured.
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We need go no further. For the reasons elucidated above,
we grant the petition for judicial review, vacate the agency's
final order in its entirety, and remand for further proceedings
consistent with this opinion. See, e.g., Enwonwu v. Gonzales, 438
F.3d 22, 35 (1st Cir. 2006) (remanding for further consideration
of CAT claim where agency's opinion was "insufficiently
reasoned"); Gailius, 147 F.3d at 47 (explaining that remand is
appropriate when agency's decision rests on flawed reasoning).
The stay of removal previously entered shall remain in effect
pending further order of this court; and we retain jurisdiction to
the extent necessary to extend, modify, dissolve, or ensure
compliance with that stay.
So ordered.
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