          United States Court of Appeals
                      For the First Circuit


No. 18-1630

                          OSWALDO CABAS,

                           Petitioner,

                                v.

                WILLIAM P. BARR, Attorney General,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                Torruella, Thompson, and Kayatta,
                         Circuit Judges.


     Daniel Welch, with whom Kevin P. MacMurray and MacMurray
& Associates were on brief, for petitioner.
     Nelle 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.


                           July 1, 2019
               KAYATTA, Circuit Judge.        Oswaldo 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 remand.

                                    I.

               Cabas 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


                                   - 2 -
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.

             Cabas's 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.

             Several 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




                                    - 3 -
own safety but that of his family, Cabas returned to the United

States in November 2002.

            The 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).

            In 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.

                                   II.

            To 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.       Garcia-Aguilar v. Whitaker, 913 F.3d

215, 218 (1st Cir. 2019); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).


                                  - 4 -
Second, he had to "make out a prima facie case of eligibility" for

asylum.    Garcia-Aguilar, 913 F.3d at 218.

              The BIA found that Cabas made neither showing. We review

the   BIA's    findings   "under   a    deferential   abuse   of   discretion

standard."      Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir.

2015).    This deferential standard of review means that in order to

secure appellate relief from this court, Cabas need now demonstrate

not just that the BIA was wrong, but that it "committed an error

of law or exercised its judgment in an arbitrary, capricious, or

irrational way."     Xue Su Wang v. Holder, 750 F.3d 87, 89 (1st Cir.

2014) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.

2007)).

              With these standards in mind, we turn to the merits of

Cabas's case.

                                        A.

              To determine if country conditions have changed, the BIA

compares the evidence submitted with the petitioner's motion to

reopen with the evidence presented at his merits hearing.                See

Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir. 2013) (quoting In

re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)).            Cabas needed

to show the BIA that conditions "'intensified or deteriorated' in

some material way" between the time of his merits hearing and his

motion to reopen.     Sihotang v. Sessions, 900 F.3d 46, 50 (1st Cir.




                                       - 5 -
2018) (quoting Sánchez-Romero v. Sessions, 865 F.3d 43, 45 (1st

Cir. 2017)).1

             Cabas's primary evidence of changed country conditions

is the 2016 U.S. Department of State Human Rights Report for

Venezuela.      The     BIA     compared      this    document       with    the    State

Department's    2009     Human       Rights    Report    for     Venezuela,         which

accompanied Cabas's original asylum application.                     While noting the

Venezuelan     government's          continued       targeting       of     "opposition

political activists for arbitrary detentions" and "reports of

government harassment and intimidation of opposition political

parties,"    the   BIA    concluded        that      Cabas's    new       evidence    was

"insufficient      to    show    a    material       change     in    conditions       or

circumstances in Venezuela with respect to the treatment of members

of opposition political parties since the respondent's removal

proceedings in 2010."

             Standing    alone,       a    side-by-side        comparison      of     the

comprehensive information presented in the State Department's 2009

and 2016 Venezuela Country Reports -- which are "authoritative"



     1 Because our review of the BIA's denial of Cabas's motion to
reopen is limited to the administrative record before the BIA, see
8 U.S.C. § 1252(b)(4)(A)("[T]he court of appeals shall decide the
petition only on the administrative record on which the order of
removal is based . . . ."); Yan Yun Zheng v. Mukasey, 280 F. App'x
104, 106 (2d Cir. 2008), we do not consider the additional
materials addressing changes in Venezuela since January 25, 2018
(the date Cabas submitted his motion to reopen) that Cabas included
with his opening appellate brief.


                                          - 6 -
for purposes of this proceeding, Pulisir v. Mukasey, 524 F.3d 302,

310 (1st Cir. 2008) -- reveals a material shift in Venezuela's

political landscape and a significant escalation in the dangers

that opposition political activists face in that country.            Such a

comparison is a crucial exercise in determining whether country

conditions have in fact changed.          See Haizem Liu, 727 F.3d at 57.

             For one, the country reports document a substantial

increase in the rate of arbitrary detentions in Venezuela since

2009, particularly for political activists.           While the 2009 report

observes    that     "[p]ersons    were   sometimes   apprehended   without

warrants from judicial authorities," the 2016 report recounts that

"[p]olice    often    detained    individuals   without    a   warrant"   and

documents "at least 2,000 open cases of arbitrary detentions" that

year and 5,853 arbitrary detentions from February 2014 to June

2016.   The 2016 report provides numerous specific accounts of

Venezuelan authorities targeting political dissidents for such

treatment.    And though Venezuelan law "allows detainees access to

counsel and family members," mandates that prisoners "be informed

promptly of the charges against them," and requires that they

appear before a judge "to determine the legality of the detention,"

the 2016 report observes that these requirements were not honored

for political prisoners.          By contrast, the 2009 report makes no

mention of this nonfeasance.




                                     - 7 -
             The number of political prisoners in Venezuela also

materially increased from 2009 to 2016.            In 2009, the State

Department reported "between 11 and 57 political prisoners" in

Venezuela.     By 2016, that number had risen to more than 100, and

-- more significantly -- "[a]n additional 1,998 individuals were

subject[ed]     to    either   restricted   movement    or   precautionary

measures" due to their political activism.

             The record also demonstrates a surge in the number of

extrajudicial killings by security forces since 2009.           While the

2009 report documents "205 deaths due to security force actions"

in a one-year period, the 2016 report details 1,296 such killings

and   describes      "large-scale   raids   conducted   by   hundreds   of

government security agents in neighborhoods allegedly harboring

criminals," which "often resulted in the deaths of suspected

criminals."

             And though it's true that both reports portray serious

impingements on individuals' political speech and the press, the

2016 report reveals important new restrictions on the freedoms of

assembly and association under the Nicolás Maduro regime.           These

include "the increasing activities of progovernment gangs," the

detention of protesters, and the limiting of access to opposition

rallies.     Further, the report notes that, in some parts of the

country, the regime has suspended the constitutional rights to

meet publicly or privately without prior government permission and


                                    - 8 -
to peacefully demonstrate.          More generally, a comparison of the

two reports shows a dramatic shift from a government characterized

by   "generally   free     and     fair"    elections     to   an    increasingly

authoritarian     regime     with    elections     marred      by        "government

interference,     electoral      irregularities,        and    manipulation      of

voters."

            It is inescapably apparent that country conditions have

worsened in a manner that is material to Cabas's asylum and

withholding claims.        Cabas hinges his claims on establishing a

well-founded    fear    of   future    persecution        based     on    political

affiliation. The Venezuelan government's increasingly aggressive,

increasingly violent repression of political dissent and its shift

toward authoritarian rule certainly made it more likely that a

political   dissident      would    face    persecution    upon     returning    to

Venezuela when Cabas moved to reopen his immigration proceedings

in January 2018. The BIA's conclusion to the contrary lacks record

support and is, for that reason, arbitrary.

                                       B.

            We turn now to the BIA's conclusion that Cabas failed to

make out even a prima facie case for asylum or withholding of

removal.    To demonstrate a prime facie case before the BIA on a

motion to reopen, Cabas need not establish that he will or is even

likely to prevail if given another hearing before an IJ on the

merits of his asylum and withholding claims.              Rather, he need only


                                      - 9 -
show now that there exists a "realistic chance" that he can "at a

later    time    establish   that   asylum   should   be   granted."     Guo

v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004). In practical terms,

this means that he "'need only produce objective evidence showing

a "reasonable likelihood"' that he will face future persecution

based on a statutory ground."        Smith v. Holder, 627 F.3d 427, 437

(1st Cir. 2010) (quoting Larngar v. Holder, 562 F.3d 71, 78 (1st

Cir. 2009)); see also Perez v. Holder, 473 F. App'x 9, 12 (1st

Cir. 2012) ("The standard for granting reopening is the same for

both asylum and withholding of removal.").

               The "[p]ersecution" an asylum applicant must show is

more    than    "mere   discomfiture,   unpleasantness,    harassment,    or

unfair treatment."       Jutus v. Holder, 723 F.3d 105, 111 (1st Cir.

2013) (quoting Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.

2010)).    Instead, the petitioner need show "serious harm."             Id.

(quoting Mendez-Barrera, 602 F.3d at 25).         Moreover, "the alleged

persecution must involve 'some connection to government action or

inaction.'"      Id. (quoting Raza v. Gonzales, 484 F.3d 125, 129 (1st

Cir. 2007)).      In considering whether a petitioner has established

a prima facie case, this court looks to both "the evidence that

accompanies the motion as well as relevant evidence that may exist

in the record of the prior hearing."         Smith, 627 F.3d at 438.

               Accompanying his motion to reopen, Cabas included an

affidavit.       That affidavit provides that Cabas "still support[s]


                                    - 10 -
[Un Nuevo Tiempo], and make[s] monetary contributions of about

$50–100 every two or three months."           It further states that two of

his friends -- also members of Un Nuevo Tiempo -- were arrested

during a political protest in February 2017 and were "subsequently

tortured and killed."         Finally, it recounts that Cabas's mother

called and informed Cabas that she had been served with a warrant

for his arrest, charging him for treason, in July 2017.              According

to the affidavit, the treason charge makes him "an immediate target

to be killed" upon his return to Venezuela.

            Cabas included a copy of the purported warrant for his

arrest with his motion.        The warrant is dated June 27, 2017 and

includes what appear to be the signature of a Venezuelan judge and

the stamped seal of the Bolivarian Republic of Venezuela.                  The

warrant    charges    Cabas   with   providing    logistical   and    economic

support    to    opposition   demonstrators,     public   instigation,     and

treason.        Other than the affidavit and arrest warrant, Cabas

provided the U.S. Department of State's 2016 Human Rights Report

for Venezuela, a 2016 Human Rights Watch Report, and a news article

on Venezuela's "Law of Hate."

            The    BIA   concluded    that    Cabas's   evidence   could   not

establish even prima facie eligibility for asylum and withholding

of removal.       It gave "limited weight" to Cabas's arrest warrant,

reasoning that "[i]t ha[d] not been meaningfully authenticated in

any manner" and Cabas had provided no "plausible explanation [for]


                                     - 11 -
why authorities would seek to arrest him" given his lengthy absence

from Venezuela.     As to Cabas's affidavit, the BIA noted that Cabas

had offered no independent evidence that he continued to support

Un Nuevo Tiempo; that his friends were arrested, tortured, and

killed; or that the warrant was delivered to his family's home.

The BIA provided no further explanation for its conclusion, nor

did it make mention of Cabas's other evidence or the record from

his original removal proceedings.

            On appeal, the government does not dispute that the

warrant, if real, would provide compelling evidence of likely

persecution    should   Cabas   return   to   Venezuela.     The    document

demonstrates that the Venezuelan government both views him as an

opposition figure and aims to try him for treason and related

offenses.    While "brief periods of detention, without accompanying

physical abuse," do not amount to persecution, Xiu Xia Zheng v.

Holder, 502 F. App'x 13, 17 (1st Cir. 2013), the 2016 Human Rights

Report indicates that individuals recently charged with engaging

in opposition activities in Venezuela have faced severe sanctions

of up to twenty-five years in prison. And many political prisoners

are tortured while in custody.      Clearly, a credible threat of such

conduct, if proven at a subsequent proceeding, would support a

finding that Cabas has a well-founded fear of future persecution.

See   8   C.F.R.   § 208.13(b)(2)(i)(B)    (explaining     that    an   asylum

applicant alleging a well-founded fear of persecution must show "a


                                  - 12 -
reasonable possibility of suffering . . . persecution" upon his

return); see also Chen Qin v. Lynch, 833 F.3d 40, 44 (1st Cir.

2016) ("Though Congress has not clearly defined persecution, 'we

view persecution as encompassing not only death and imprisonment,

but   [also]   "the      well-founded    fear    of   non-life[-]threatening

violence and physical abuse."'" (quoting Marquez v. INS, 105 F.3d

374, 379 (7th Cir. 1997))).         So, the key issue on this appeal is

whether the BIA abused its discretion in giving the arrest warrant

"limited weight," which, in this context, equates to no material

weight at all.

            "The BIA has discretion to deem a document's lack of

authentication a telling factor weighing against its evidentiary

value."     Hang Chen v. Holder, 675 F.3d 100, 107 (1st Cir. 2012).

Department of Justice regulations generally provide that public

documents    may   be    authenticated    by    "official    publication"   or

certification by an authorized foreign officer.                See 8 C.F.R.

§ 1287.6(c).       But    because   "asylum     applicants   [cannot]   always

reasonably be expected to have an authenticated document from an

alleged persecutor," Gui Cun Liu v. Ashcroft, 372 F.3d 529, 532

(3d Cir. 2004), these regulations "offer[] only a method -- not

the exclusive method -- for authenticating a record in an asylum

case," Jiang v. Gonzales, 474 F.3d 25, 29 (1st Cir. 2007); see

also Nak Chen v. Holder, 380 F. App'x 748, 751–52 (10th Cir. 2010)

(listing alternative means of authentication).               Accordingly, we


                                    - 13 -
have held that "authentication requires nothing more than proof

that a document or thing is what it purports to be" and "can be

prove[n] in any way that makes sense in the circumstances."                  Yongo

v. INS,   355   F.3d   27,    30–31   (1st     Cir.     2004).     Moreover,     "in

immigration proceedings -- where the rules of evidence do not apply

-- evidentiary standards are generally more lax."                      Castilho de

Oliveira v. Holder, 564 F.3d 892, 897 (7th Cir. 2009).

           As proof that the warrant is authentic, Cabas points to

the face of the document -- which bears the imprimatur of the

Venezuelan government and the signature of the issuing judge --

and to his supporting affidavit.               While not meeting the formal

requirements of a self-authenticating foreign public document, see

Fed. R. Evid. 902(3), the face of the arrest warrant reveals no

cause to doubt its genuineness.

           Cabas's affidavit further evidences the arrest warrant's

authenticity. In that affidavit, Cabas states that "[o]n or around

July of 2017 [his] mother called and informed [him] that she had

received a warrant for [his] arrest," charging him with treason,

"at [their] residence in Venezuela."              The affidavit provides some

corroboration    as    to    the   validity       of    the   arrest   warrant    by

establishing the manner, location, and time that Cabas's family

came to possess it.         See Yongo, 355 F.3d at 31 (deeming records

authenticated    through      testimony      as    to    their   provenance      and

appearance); see also id. (explaining that formal hearsay rules do


                                      - 14 -
not   apply       in    immigration        proceedings    for       purposes     of

authentication).       Moreover, contrary to the BIA's assertion that

no plausible explanation exists as to why authorities would now

seek to arrest Cabas, Cabas's affidavit and supporting documents

explain that he has continued to support Un Nuevo Tiempo while

living in the United States and that the Maduro government has

engaged in a systematic, heightened crackdown on political dissent

within Venezuela.        If credited, this evidence provides a cogent

explanation for why members of the Maduro government would now

seek Cabas's arrest for treason.

             We accord the BIA wide berth to reject a petitioner's

attempt to authenticate a document when the petitioner was deemed

not credible at his merits hearing.                  See, e.g., Xiao He Chen

v. Lynch, 825 F.3d 83, 87 (1st Cir. 2016) ("[S]pecial respect is

due to the BIA's refusal to credit an attempt at authentication by

a witness whom the IJ earlier found incredible."); Gi Kuan Tsai

v. Holder, 505 F. App'x 4, 8 (1st Cir. 2013) ("[T]he BIA's decision

did   not    solely    rest     on   the   limited    weight   ascribed     to   an

unauthenticated document, but also relied upon consideration of an

IJ's prior adverse credibility finding against the petitioner.").

Here, though, we have the converse:              The IJ who observed Cabas

testify     at   his   merits    hearing    deemed    Cabas    to   be   generally




                                       - 15 -
credible.2    So, we have an arrest warrant that looks, but may not

be, authentic, supported by an affidavit signed by a person

previously accepted as credible by the IJ and the BIA.          The

issuance of such a warrant fits the established narrative put forth

in the motion to reopen.    It hardly seems out of character for the

regime described in the U.S. Department of State's 2016 Human

Rights Report.     Cabas swears to continuing activity that would

likely engender the displeasure of the regime described in that

report. And the BIA points to no reports indicating that documents

of this ilk from Venezuela are frequently doctored or fraudulently

created.     Cf. Gao v. Gonzales, 467 F.3d 33, 37 (1st Cir. 2006)

("Given the government reports about widespread fabrication and

fraud in documents originating from Gao's region of China, it was

reasonable for the IJ to require some form of authentication for

such documents . . . .").

             Were this a reopened proceeding, Cabas would presumably

be questioned about the warrant and his other evidence.       An IJ

would certainly have broad discretion to gauge the credibility of

that testimony.    For now and on this record, though, it strikes us

as entirely arbitrary to deem Cabas's proffered testimony to be

incredible.    It therefore also strikes us as equally arbitrary to


     2 As we explained in Cabas I, the IJ found Cabas to be
generally credible but discounted one incident recounted in his
testimony because he did not also mention it in his supporting
affidavit. See Cabas I, 695 F.3d at 172.


                                - 16 -
treat the warrant as a fraud.              In short, "[a]bsent evidence of

forgery,    alteration,       or   some    other   reason     to    doubt        [its]

authenticity," we do not think the BIA was entitled to treat the

warrant as so obviously fraudulent as to render it insufficient to

prove even a prima facie case of likely persecution.                    Castilho de

Oliveira, 564 F.3d at 897; see also Hua Chen v. Holder, 358 F.

App'x 705, 707 (7th Cir. 2009) ("Lack of compliance with § 1287.6

is not a valid basis for immigration courts to disregard relevant

evidence    unless    there    are   additional        reasons     to    doubt    its

authenticity.").

            We are also troubled by the BIA's sweeping disregard of

Cabas's affidavit for lack of independent corroboration.                           If

credited,   that     affidavit     provides    evidence      of    his    continued

political involvement with Un Nuevo Tiempo, the targeting of other

members of this political organization for persecution, and the

Maduro government's intention to prosecute Cabas for treason --

evidence that is clearly material to Cabas's claim of future

persecution.    In Smith v. Holder, we observed that "[t]o make a

showing of either past persecution or a likelihood of future

persecution,    'an   applicant's         testimony,    if   credible,      may    be

sufficient.'"      627 F.3d at 437 (quoting Fesseha v. Ashcroft, 333

F.3d 13, 19 (1st Cir. 2003)); see also Jutus, 723 F.3d at 112 n.3

("We have considered -- and in some cases upheld -- numerous asylum

applications and motions to reopen that relied exclusively on an


                                     - 17 -
applicant's affidavit and documentary evidence.").               Here, where

the   IJ   deemed   Cabas   a   credible   witness    in   the    underlying

proceeding, and the BIA points to no other reason to doubt Cabas's

testimony, it was an abuse of discretion to reject the affidavit

and disregard its contents.

            Finally, the BIA made no mention at all of the evidence

Cabas proffered in his original asylum case. This, too, was error.

See Smith, 627 F.3d at 439 ("[P]rima facie scrutiny of [the] motion

to reopen must . . . include an evaluation of all of the currently

available evidence.").      Though we previously held that Cabas did

not suffer past persecution while living in Venezuela, his evidence

of real harassment from government-sponsored gangs due to his

political activism certainly warrants some weight in deciding

whether he will suffer persecution upon his return to Venezuela in

the worsened conditions that now exist.

            "While it remains true that the BIA need not 'dissect in

minute detail every contention that a complaining party advances,'

it cannot turn a blind eye to salient facts."          Sihotang, 900 F.3d

at 51 (citation omitted) (quoting Xiao He Chen, 825 F.3d at 88).

We cannot say that the BIA fulfilled that mandate here.            Moreover,

we think the record before us compels the conclusion that Cabas

has shown at least a reasonable chance that he will face future

persecution based on his political opinion.          Accordingly, reversal

is warranted.   See Xin Qiang Liu, 802 F.3d at 74; Fergiste v. INS,


                                  - 18 -
138 F.3d 14, 21 (1st Cir. 1998) (Selya, J., concurring) ("[I]n

some cases the record may be so pellucid that remand would be an

empty exercise.").

                              III.

          For the foregoing reasons, we reverse the BIA's denial

of Cabas's motion to reopen his removal proceedings, and we remand

to the BIA with instructions to order a new hearing before an IJ

to reconsider Cabas's petitions for asylum and withholding of

removal in light of Cabas's new evidence.




                             - 19 -
