Reyes v. Garland

37 F.4th 1

Zeike Alexander REYES Pujols, a.k.a. Jose Gonsalez-Rodriguez, Petitioner,

v.Merrick B. GARLAND, United States Attorney General, Respondent.

Nos. 21-1128

21-1590

United States Court of Appeals, First Circuit.

June 14, 2022

Ethan R. Horowitz, with whom Northeast Justice Center was on brief, for petitioner.

Spencer Shucard, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Jessica E. Burns, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

Before Barron, Chief Judge, Lipez and Gelpí, Circuit Judges.

BARRON, Chief Judge.

Zeike Alexander Reyes Pujols, a citizen of the Dominican Republic who entered the United States without admission or parole, petitions for review of a ruling by the Board of Immigration Appeals ("BIA") that affirms the final order of removal that was entered against him pursuant to 8 U.S.C. §§ 1229 – 1229a. He also seeks, in the alternative, review of the BIA's denial of his motion to reconsider its affirmance. We grant the petition for review of the BIA's ruling affirming the final order of removal and dismiss as moot the petition for review of the BIA's denial of Reyes's motion for reconsideration.

I.

Reyes entered the United States in April of 2017. The next month, he was served with a Notice to Appear for removal proceedings. Reyes conceded removability but sought relief from removal based on asylum and withholding of removal, as well as Article 3 of the Convention Against Torture ("CAT"). The Boston Immigration Court held a merits hearing on October 21, 2019, on Reyes's defenses to removal.

Reyes testified at the hearing that he worked as a chauffeur for a wealthy man in the Dominican Republic named Joel de la Cruz and endured severe abuse in consequence. With respect to that abuse, Reyes testified as follows:

De la Cruz told Reyes in 2016 to deliver 600,000 pesos to a man named Raul. Reyes delivered the money to Raul, and Raul then presented Reyes with a sealed box, which he instructed Reyes to bring to de la Cruz. Raul would not tell Reyes, however, what the box contained. Believing the box might contain contraband, Reyes refused to bring the box to de la Cruz.

When Reyes returned to de la Cruz's house, de la Cruz and two uniformed police officers accosted Reyes. They accused him of stealing the money that he had been instructed to deliver to Raul.

De la Cruz drove Reyes and the two officers to a police station. De la Cruz remained outside in his vehicle, and the two uniformed police officers brought Reyes inside. The officers threatened Reyes, told him that he needed to repay the 600,000 pesos, and stabbed him in the leg multiple times with a screwdriver.

The same two officers later came to Reyes's neighborhood and shot him multiple times, which required his hospitalization. Then, when Reyes was going to be discharged from the hospital, the same two officers took Reyes from the hospital and brought him back to the police station, where they again threatened him and drove a screwdriver into his leg.

In addition to this testimony, Reyes presented in support of his request for asylum, withholding of removal, and protection under the CAT, medical evidence documenting injuries that he had received. The injuries were consistent with the shootings and stabbings that his testimony described.

The Immigration Judge ("IJ") concluded that Reyes's testimony was not "reliable" and denied Reyes's applications for asylum, withholding of removal, and protection under the CAT. Reyes appealed to the BIA only the IJ's decision regarding his CAT claim. The BIA affirmed the IJ's ruling denying Reyes's CAT claim, after ruling that "there is no clear error in the" IJ's "adverse credibility finding" regarding Reyes's testimony. The BIA concluded that, "[s]ince [Reyes] lacked credibility and the objective evidence in the record does not independently establish his claim, he did not satisfy his burden to provide eligibility for protection under the" CAT.

Reyes moved for reconsideration on March 21, 2021, but the BIA denied the motion on July 15, 2021. Reyes then filed timely petitions for review of both the BIA's affirmance of the IJ's ruling and its denial of Reyes's motion to reconsider. We have jurisdiction to entertain these petitions pursuant to 8 U.S.C. § 1252.

II.

To succeed on a CAT claim, a noncitizen must "prove that it is more likely than not that he will be tortured if returned to his home country." Mazariegos v. Lynch, 790 F.3d 280, 287 (1st Cir. 2015). Reyes appears to concede that he cannot make the requisite showing if substantial evidence supports the IJ's adverse credibility finding against him. See Cuesta-Rojas v. Garland, 991 F.3d 266, 270 (1st Cir. 2021). Reyes argues, however, that given the other evidence in the record, his testimony (if credible) does suffice to support (even though it does not compel) the conclusion that he has met his burden to prove what he must on his CAT claim. And, Reyes contends, the BIA erred in affirming the IJ's adverse credibility finding. We thus now turn to that latter contention, on which his petition for review of the BIA's affirmance of the IJ's final order of removal depends.

A.

Reyes first asks us to direct our attention to the portion of the IJ's adverse credibility finding that concerns Reyes's demeanor during his testimony. Specifically, the IJ observed that Reyes at times "testified in almost a robotic manner" and that while Reyes did "become very emotional when discussing his first encounter with the police where he was stabbed in [his] leg with a screwdriver, he did not have the same emotion when discussing being shot and hospitalized ..., and again, many of his responses candidly came out as rehearsed." The IJ also stated that in finding that Reyes's testimony "was not fully reliable," she had "considered the totality of the circumstances, including [Reyes's] demeanor while testifying."

Reyes asserts that the IJ's adverse credibility finding cannot be sustained insofar as it is based on the assessment of Reyes's demeanor because that assessment was premised on an "unconscious bias against trauma survivors." In support of this contention, Reyes points to the features of his testimony that the IJ zeroed in on -- such as his flat affect -- and contends that they are features consistent with a person who suffers from Post-Traumatic Stress Disorder ("PTSD"). He then further argues that the IJ failed to consider the evidence in the record that Reyes suffered from PTSD in assessing his demeanor.

The government does not dispute that the record supportably shows that Reyes suffers from PTSD. Nor does the government appear to take issue with Reyes's contention that some of the aspects of his demeanor that the IJ identified as supporting a finding that his testimony was not credible -- such as a "robotic" affect at times and a highly emotional affect at others -- are recognized symptoms of PTSD. The government points out, however, that the BIA "explicitly declined to affirm" the IJ's assessment of Reyes's demeanor as evidencing a lack of credibility "because doing so was unnecessary in affirming the overall decision." The government thus contends that Reyes's PTSD-based challenge to the IJ's adverse credibility finding provides no basis for overturning the BIA's affirmance of it.

In response, Reyes argues that what he asserts was the IJ's "unconscious bias against trauma survivors" "infected" the entirety of the IJ's adverse credibility determination. He thus contends that even the portions of that determination that concern what the IJ described as "critical inconsistencies" are tainted and so cannot supply a predicate for the BIA's affirmance of the IJ's adverse credibility finding on non-demeanor-based grounds.

To support this line of argument, Reyes points in part to three cases in which we have vacated the BIA's affirmance of adverse credibility determinations by the IJ that derived at least in part from erroneous predicate factual findings. See Cuesta-Rojas, 991 F.3d 266 ; Mboowa v. Lynch, 795 F.3d 222 (1st Cir. 2015) ; Jabri v. Holder, 675 F.3d 20 (1st Cir. 2012). In all three, we vacated the BIA's affirmance of an immigration judge's adverse credibility finding that we determined was predicated on a finding of "discrepancies" that the record did not support. Cuesta-Rojas, 991 F.3d at 272–73 ; Mboowa, 795 F.3d at 227–28 ; Jabri, 675 F.3d at 23, 26.

But, the BIA in this case expressly stated that it "d[id] not rely on" the assessment of Reyes's demeanor by the IJ that Reyes contends tainted the IJ's overall credibility finding. The BIA then purported to rely solely on what it contended were distinct, non-demeanor-based predicates for that adverse credibility finding that the IJ had made. That makes this case different from the three on which Reyes relies, as in none of them did the BIA expressly disclaim reliance on the problematic portion of the IJ's adverse credibility finding in affirming it.

Moreover, we cannot say on this record that the BIA, in affirming the IJ's adverse credibility finding while disclaiming any reliance on the IJ's assessment of Reyes's demeanor, affirmed an adverse credibility finding that the IJ did not actually make. And that is because we cannot say that the IJ's adverse credibility finding was itself dependent upon the assessment of Reyes's demeanor that Reyes contends was problematic because of its disregard of his PTSD diagnosis.

Indeed, in arguing to the BIA, Reyes did not himself contend that the IJ's assessment of Reyes's demeanor infected even those distinct predicates for her adverse credibility finding that she identified that were not demeanor-based -- namely, what the IJ termed "critical inconsistencies" in his account -- and on which the BIA then relied. To the contrary, Reyes separately challenged the record support for those distinct grounds for finding his...