967 F.3d 15
1st Cir.2020Background
- Luis Elias Sanabria Morales, a Venezuelan national, entered the U.S. in 2012 and pleaded guilty in 2014 to heroin trafficking; DHS issued an administrative removal order based on an aggravated-felony conviction.
- Sanabria passed a credible reasonable-fear interview and was placed in withholding-only proceedings, but the IJ limited relief to CAT deferral because his conviction made him ineligible for statutory withholding.
- At the merits hearing Sanabria (pro se) testified he was coerced into trafficking by Venezuelan traffickers who threatened his family; he also claimed past opposition-party activity, and later submitted evidence of an alleged 2017 incident involving men in National Guard uniforms.
- The IJ denied CAT deferral, finding insufficient evidence that Sanabria would more likely than not be tortured by or with the acquiescence of Venezuelan public officials; the IJ also treated his conviction as a presumptively particularly serious crime.
- The BIA affirmed, declined to consider evidence submitted for the first time on appeal to the court, and found Sanabria’s fear speculative and insufficiently corroborated; Sanabria petitioned this Court for review.
- This Court (post-Nasrallah) exercised jurisdiction, rejected Sanabria’s challenges, and denied the petition for review; Judge Thompson dissented, arguing the IJ and BIA failed to analyze the Matter of Y-L- extraordinary-and-compelling-circumstances exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate-first evidence may be considered to show likelihood of torture under CAT | Sanabria: new COPEI letter and airport chart show risk and government collusion | Gov: Court must limit review to administrative record; new materials not part of record | Denied consideration; court limited review to administrative record and found record did not compel CAT relief |
| Whether record compels finding of likelihood of torture by or with acquiescence of Venezuelan officials (CAT deferral standard) | Sanabria: traffickers and corrupt officials will harm him if returned; past threats and recent incidents corroborate risk | Gov: contacts and harms were speculative; no evidence of government acquiescence; family remains unharmed after relocation | Held: record does not compel a contrary conclusion; CAT deferral not established |
| Whether the IJ/BIA erred by treating his aggravated-felony drug conviction as a particularly serious crime without fully applying the Matter of Y-L- "extraordinary and compelling" exception | Sanabria: IJ/BIA failed to analyze whether extraordinary-and-compelling circumstances rebut the presumption | Gov: IJ applied Y-L- presumption appropriately; record lacks the minimal Y-L- factors to rebut presumption | Held: Court concluded record does not compel finding that the presumption was rebutted and affirmed IJ/BIA; dissent argued failure to analyze exception required remand |
| Jurisdiction under §1252(a)(2)(C) over CAT factual challenges | Sanabria: Court may review CAT factual claims | Gov (below): §1252(a)(2)(C) bars review because removal is based on a qualifying criminal offense | Held: After Nasrallah, §1252(a)(2)(C) does not preclude judicial review of factual challenges to CAT orders; Court exercised jurisdiction |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (Supreme Court: §1252(a)(2)(C) does not preclude judicial review of factual CAT challenges)
- Ruiz-Guerrero v. Whitaker, 910 F.3d 572 (1st Cir. 2018) (CAT deferral requires more-likely-than-not torture and government acquiescence)
- Morris v. Sessions, 891 F.3d 42 (1st Cir. 2018) (review focuses on whether the administrative record compels a contrary conclusion)
- Nantume v. Barr, 931 F.3d 35 (1st Cir. 2019) (appellate court limited to administrative record; cannot consider evidence first submitted on appeal)
- Cabas v. Barr, 928 F.3d 177 (1st Cir. 2019) (declining to consider new materials submitted with opening appellate brief)
- Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (agency need not dissect every contention but must fairly consider points raised)