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Cabas v. Barr

United States Court of Appeals, First Circuit

July 1, 2019

OSWALDO CABAS, Petitioner,
v.
WILLIAM P. BARR, Attorney General, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          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, 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 make two showings. First, he had to "adduce material evidence, previously unavailable, showing changed country conditions" in Venezuela. Garcia-Aguilarv.Whitaker, 913 F.3d 215, 218 (1st Cir. 2019); see also 8 U.S.C. ยง 1229a(c)(7)(C)(ii). Second, he had to "make out a ...


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