A federal appeals court ruled today a citizen of the Dominican Republic can stay in the US while he pleads for asylum, rejecting government arguments that he no longer faced persecution or torture in his homeland because the threats and violence he endured there ceased when he stopped showing public support for an opposition political party.
In vacating a Bureau of Immigration Appeals ruling that Flemi Barnodis Rodriguez-Villar be put on a plane back to the Dominican Republic, the US Court of Appeals for the First Circuit in Boston wrote:
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.
The ruling means that Rodriguez-Villar can stay in the US while he presents a formal court case for why he should be allowed to stay in the US as a political refugee.
The court summarized his case: He came to the US illegally in 2003, went back to the Dominican Republic to care for his ailing father and then started a supermarket - at which he began to host meetings of an opposition political party, the PRD. Not long after, though, he began to get phone calls threatening his family if he didn't knock it off. When he didn't, his store was ransacked and, despite bribes, the police did nothing to find the culprits.
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."
He sent his wife and daughter to the US and stopped hosting the meetings - after which the threats and violence ended. In 2012, several months later, he left the Dominican Republic and went to Mexico, from which he crossed the border into Texas without documentation, surrendered himself to Border Patrol agents and asked for asylum. "An asylum officer determined that the petitioner had a credible fear of harm in his homeland" and he was allowed to stay in the US, free on parole as his case wended through the immigration system.
Homeland Security, though, moved to have him kicked out; he appealed, saying he had a legitimate fear of torture should he return to his native country, but, eventually, the Bureau of Immigration Appeals agreed with Homeland Security and ordered him deported. Rodriquez-Villar appealed.
In its argument to the appeals court earlier this year, the Justice Department said that the evidence he presented to make his case actually showed the opposite - that he no longer had anything to fear because the threats and violence against him had ended.
The three-judge appeals panel called that argument "disingenuous:"
A principal goal of persecuting the expression of political opinion is to silence those who cleave to it in the hope that their political views will not gain traction. ...
So here: the purpose of the PLD's threats and violence was to coerce the petitioner to stop hosting PRD meetings. That the threats and violence sent a convincing enough message to frighten the petitioner into complying is evidence in support of his claim, not evidence against it. The agency's contrary reasoning would lead to the bizarre result that persons who experienced threats that were sufficiently credible to cause them to cease expressing their political opinion would not be eligible for immigration relief. ...
Despite the disingenuous nature of the agency's reasoning, the government attempts to defend it. Its brief cites several cases in which courts have upheld denials of immigration relief under what the government claims are "comparable circumstances." But the government reads those cases through rosecolored glasses. None of the cases that it cites involves circumstances in which an alien ceased to engage in statutorily protected activity due to the prospect of further threats or violence. See, e.g., Stepanyan v. Holder, 580 F. App'x 588, 590 (9th Cir. 2014) (denying application for relief based on alien's husband's political activity where husband had left country and alien herself was not politically active); Morina v. Att'y Gen. of U.S., 427 F. App'x 145, 149 (3d Cir. 2011) (per curiam) (denying application for relief because political landscape had changed materially since aliens' departure); Myint Oo Lwin v. Gonzales, 220 F. App'x 36, 39 (2d Cir. 2007) (finding alien's "1988 political activities [not] relevant to his 2004 asylum claim" because he "no longer asserts a fear of persecution due to his political activities or opinion"). ...
We conclude that the agency committed legal error both in overlooking critical evidence supporting the petitioner's claim for withholding of removal and in using such evidence as part of its rationale for denying that claim. While Rumpelstiltskin is said to have converted dross into gold, the agency cannot convert evidence favorable to an alien into evidence unfavorable to the alien simply by ignoring the context of such evidence.
The court ordered a continuation of a stay against his deportation while he makes his case in court.
The decision does not say where he resides now; as in all immigration cases, the court records are sealed save for final court rulings. The appeals court hears cases from New England states and Puerto Rico.