PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Welch, with whom Kevin P. MacMurray and MacMurray &
Associates were on brief, for petitioner.
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.
Torruella, Thompson, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
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
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.
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.
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.
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).
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.
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.
F.3d 215, 218 (1st Cir. 2019); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). Second, he had to "make out a