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Rodriguez-Villar v. Barr

United States Court of Appeals, First Circuit

July 11, 2019

WILLIAM P. BARR, Attorney General, Respondent.


          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.

          Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.


         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 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 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 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 ...

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