Cabas v. Barr
Opinion
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, *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
),
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
*181
make two showings. First, he had to "adduce material evidence, previously unavailable, showing changed country conditions" in Venezuela.
Garcia-Aguilar
v.
Whitaker
,
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
,
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
,
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
,
For one, the country reports document a substantial increase in the rate of arbitrary *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 killings and describes "large-scale raids conducted by hundreds of government security agents in neighborhoods allegedly harboring criminals," which "often resulted in the deaths of suspected criminals."
And though it's true that both reports portray serious impingements on individuals' political speech and the press, the 2016 report reveals important new restrictions on the freedoms of assembly and association under the Nicolás Maduro regime. These include "the increasing activities of progovernment gangs," the detention of protesters, and the limiting of access to opposition rallies. Further, the report notes that, in some parts of the country, the regime has suspended the constitutional rights to meet publicly or privately without prior government permission and to peacefully demonstrate. More generally, a comparison of the two reports shows a dramatic shift from a government characterized by "generally free and fair" elections to an increasingly authoritarian regime with elections marred by "government interference, electoral irregularities, and manipulation of voters."
It is inescapably apparent that country conditions have worsened in a manner that is material to Cabas's asylum and withholding claims. Cabas hinges his claims on establishing a well-founded fear of future persecution based on political affiliation. The Venezuelan government's increasingly aggressive, increasingly violent repression of political dissent and its shift toward authoritarian rule certainly made it more likely that a political dissident would face persecution upon returning to Venezuela when Cabas moved to reopen his immigration proceedings in January 2018. The BIA's conclusion to the contrary lacks record support and is, for that reason, arbitrary.
B.
We turn now to the BIA's conclusion that Cabas failed to make out even a prima facie case for asylum or withholding of removal. To demonstrate a prime
*183
facie case before the BIA on a motion to reopen, Cabas need not establish that he will or is even likely to prevail if given another hearing before an IJ on the merits of his asylum and withholding claims. Rather, he need only show now that there exists a "realistic chance" that he can "at a later time establish that asylum should be granted."
Guo
v.
Ashcroft
,
The "[p]ersecution" an asylum applicant must show is more than "mere discomfiture, unpleasantness, harassment, or unfair treatment."
Jutus
v.
Holder
,
Accompanying his motion to reopen, Cabas included an affidavit. That affidavit provides that Cabas "still support[s] [Un Nuevo Tiempo], and make[s] monetary contributions of about $ 50-100 every two or three months." It further states that two of his friends -- also members of Un Nuevo Tiempo -- were arrested during a political protest in February 2017 and were "subsequently tortured and killed." Finally, it recounts that Cabas's mother called and informed Cabas that she had been served with a warrant for his arrest, charging him for treason, in July 2017. According to the affidavit, the treason charge makes him "an immediate target to be killed" upon his return to Venezuela.
Cabas included a copy of the purported warrant for his arrest with his motion. The warrant is dated June 27, 2017 and includes what appear to be the signature of a Venezuelan judge and the stamped seal of the Bolivarian Republic of Venezuela. The warrant charges Cabas with providing logistical and economic support to opposition demonstrators, public instigation, and treason. Other than the affidavit and arrest warrant, Cabas provided the U.S. Department of State's 2016 Human Rights Report for Venezuela, a 2016 Human Rights Watch Report, and a news article on Venezuela's "Law of Hate."
The BIA concluded that Cabas's evidence could not establish even prima facie eligibility for asylum and withholding of removal. It gave "limited weight" to Cabas's arrest warrant, reasoning that "[i]t ha[d] not been meaningfully authenticated in any manner" and Cabas had provided no "plausible explanation [for] why authorities would seek to arrest him" given his lengthy absence from Venezuela. As to Cabas's affidavit, the BIA noted that Cabas had offered no independent evidence that he continued to support Un Nuevo Tiempo; that his friends were arrested, tortured, and killed; or that the warrant was delivered to his family's home. The BIA provided no further explanation for its conclusion, nor did it make mention of Cabas's other evidence or the record from his original removal proceedings.
*184
On appeal, the government does not dispute that the warrant, if real, would provide compelling evidence of likely persecution should Cabas return to Venezuela. The document demonstrates that the Venezuelan government both views him as an opposition figure and aims to try him for treason and related offenses. While "brief periods of detention, without accompanying physical abuse," do not amount to persecution,
Xiu Xia Zheng
v.
Holder
,
"The BIA has discretion to deem a document's lack of authentication a telling factor weighing against its evidentiary value."
Hang Chen
v.
Holder
,
As proof that the warrant is authentic, Cabas points to the face of the document -- which bears the imprimatur of the Venezuelan government and the signature of the issuing judge -- and to his supporting affidavit. While not meeting the formal requirements of a self-authenticating foreign public document, see Fed. R. Evid. 902(3), the face of the arrest warrant reveals no cause to doubt its genuineness.
Cabas's affidavit further evidences the arrest warrant's authenticity. In that affidavit, Cabas states that "[o]n or around July of 2017 [his] mother called and informed [him] that she had received a warrant for [his] arrest," charging him with treason, "at [their] residence in Venezuela." The affidavit provides some corroboration as to the validity of the arrest warrant by establishing the manner, location, and
*185
time that Cabas's family came to possess it.
See
Yongo
,
We accord the BIA wide berth to reject a petitioner's attempt to authenticate a document when the petitioner was deemed not credible at his merits hearing.
See, e.g.
,
Xiao He Chen
v.
Lynch
,
Were this a reopened proceeding, Cabas would presumably be questioned about the warrant and his other evidence. An IJ would certainly have broad discretion to gauge the credibility of that testimony. For now and on this record, though, it strikes us as entirely arbitrary to deem Cabas's proffered testimony to be incredible. It therefore also strikes us as equally arbitrary to treat the warrant as a fraud. In short, "[a]bsent evidence of forgery, alteration, or some other reason to doubt [its] authenticity," we do not think the BIA was entitled to treat the warrant as so obviously fraudulent as to render it insufficient to prove even a prima facie case of likely persecution.
Castilho de Oliveira
,
*186
We are also troubled by the BIA's sweeping disregard of Cabas's affidavit for lack of independent corroboration. If credited, that affidavit provides evidence of his continued political involvement with Un Nuevo Tiempo, the targeting of other members of this political organization for persecution, and the Maduro government's intention to prosecute Cabas for treason -- evidence that is clearly material to Cabas's claim of future persecution. In
Smith
v.
Holder
, we observed that "[t]o make a showing of either past persecution or a likelihood of future persecution, 'an applicant's testimony, if credible, may be sufficient.' "
Finally, the BIA made no mention at all of the evidence Cabas proffered in his original asylum case. This, too, was error.
See
Smith
,
"While it remains true that the BIA need not 'dissect in minute detail every contention that a complaining party advances,' it cannot turn a blind eye to salient facts."
Sihotang
,
III.
For the foregoing reasons, we reverse the BIA's denial of Cabas's motion to reopen his removal proceedings, and we remand to the BIA with instructions to order a new hearing before an IJ to reconsider Cabas's petitions for asylum and withholding of removal in light of Cabas's new evidence.
Because our review of the BIA's denial of Cabas's motion to reopen is limited to the administrative record before the BIA,
see
As we explained in
Cabas I
, the IJ found Cabas to be generally credible but discounted one incident recounted in his testimony because he did not also mention it in his supporting affidavit.
See
Cabas I
,
Reference
- Full Case Name
- Oswaldo CABAS, Petitioner, v. William P. BARR, Attorney General, Respondent.
- Cited By
- 9 cases
- Status
- Published