Denial of Asylum and CAT Protection Upheld: First Circuit Decision in Cabral Fortes Tomar v. Bondi

 

Lucio Ivaldo Cabral Fortes Tomar ("Petitioner"), a native and citizen of Cape Verde, entered the United States in 2005 on a B-2 visitor visa and remained beyond the authorized period. In 2010, the Department of Homeland Security initiated removal proceedings against him under Section 237(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(B), for overstaying his visa. In response, the Petitioner applied for asylum under INA § 208, 8 U.S.C. § 1158; withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); and protection under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16-18.

The Petitioner's claims were based on alleged past persecution and a fear of future persecution due to his political opinion. He testified that in Cape Verde, he had been an active member of the opposition party, the Movement for Democracy (MpD), and had participated in protests against the ruling African Party for the Independence of Cape Verde (PAICV). He claimed that in 2004, government agents assaulted him during a rally, causing injuries requiring hospitalization, and that he received death threats thereafter, prompting his flight to the U.S. He also alleged that his family members remaining in Cape Verde continued to face harassment from authorities.

During the merits hearing before an Immigration Judge (IJ) in Boston, Massachusetts, in 2018, the Petitioner submitted documentary evidence, including medical records from Cape Verde, affidavits from family members, and country conditions reports from the U.S. Department of State and Amnesty International, which highlighted ongoing political tensions and instances of government suppression of opposition figures in Cape Verde. The government cross-examined the Petitioner on inconsistencies in his timeline of events and the lack of corroborating police reports for the alleged assault.

The IJ denied all forms of relief in a 2020 decision, finding that the Petitioner's testimony lacked credibility due to discrepancies (e.g., varying dates of the assault in his application versus testimony) and insufficient corroboration. The IJ also determined that even if credible, the incidents did not rise to the level of persecution, as they were isolated and not severe enough. Regarding future fear, the IJ noted improved political conditions in Cape Verde since 2016, with the MpD gaining power, reducing the risk to opposition members. The BIA dismissed the appeal in 2024, affirming the IJ's findings and adding that the Petitioner failed to establish a nexus between the alleged harm and his political opinion, as the assault appeared related to general crowd control rather than targeted persecution.

Issues

The primary issues before the First Circuit were:

1. Whether substantial evidence supported the BIA's adverse credibility determination and its conclusion that the Petitioner did not suffer past persecution or establish a well-founded fear of future persecution on account of a protected ground under the INA.
2. Whether the BIA erred in denying withholding of removal and CAT protection, specifically by finding that the Petitioner did not demonstrate it was more likely than not that he would face persecution or torture upon return to Cape Verde.
3. Whether the agency properly applied the "one central reason" nexus standard for asylum claims, as articulated in cases like Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014), and whether the Petitioner's evidence met the burden of proof.

The Petitioner argued that the credibility finding was based on minor inconsistencies that did not go to the heart of his claim, citing Singh v. Gonzales, 403 F.3d 1081 (9th Cir. 2005), and that the BIA ignored material evidence of country conditions. The government contended that the agency's decisions were supported by reasonable, substantial evidence in the record.

Relevant statutory provisions

8 U.S.C. § 1227(a)(1)(B) (INA § 237(a)(1)(B)): https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1227&num=0&edition=prelim

8 U.S.C. § 1158 (INA § 208):

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim

8 U.S.C. § 1231(b)(3) (INA § 241(b)(3)): https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1231&num=0&edition=prelim (See subsection (b)(3) for the restriction on removal.)

8 C.F.R. §§ 1208.16–1208.18 (particularly § 1208.16(c) and related provisions): https://www.ecfr.gov/current/title-8/chapter-V/subchapter-B/part-1208/subpart-A/section-1208.16

REAL ID Act of 2005

https://www.govinfo.gov/content/pkg/PLAW-109publ13/pdf/PLAW-109publ13.pdf

Decision

The First Circuit denied the petition for review in a unanimous opinion authored by Judge David J. Barron, with Judges O. Rogeriee Thompson and Gustavo A. Gelpí joining. The court affirmed the BIA's order, upholding the denial of asylum, withholding of removal, and CAT protection. The decision was issued on January 23, 2026, and designated as published.

Analysis of the Decision

The court's analysis began with the standard of review, emphasizing that it reviews the BIA's factual findings, including credibility determinations, under the deferential "substantial evidence" standard, where such findings are upheld unless the record compels a contrary conclusion.  On credibility, the court found that the BIA's reliance on inconsistencies in the Petitioner's testimony—such as discrepant dates for the alleged assault (2003 in his asylum application versus 2004 in testimony)—was permissible under the REAL ID Act of 2005, which allows adverse credibility findings based on any inconsistency, without requiring it to be central to the claim. The court distinguished this from cases like Singh, noting that here the discrepancies were not trivial but affected the timeline of political involvement. Moreover, the Petitioner's failure to provide readily available corroboration, such as police reports or contemporary news articles about the rally, supported the finding, citing 8 U.S.C. § 1158(b)(1)(B)(ii).

Regarding past persecution, the court agreed that even assuming credibility, the single assault and threats did not meet the threshold of "extreme" harm required under First Circuit precedent, such as in Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir. 2010). The injuries, while requiring medical attention, were not life-threatening, and the threats were anonymous and not acted upon. The court noted that persecution requires more than harassment or discrimination.

For the well-founded fear of future persecution, the court upheld the BIA's assessment of changed country conditions. Citing State Department reports from 2020-2023, which indicated a peaceful transition of power to the MpD in 2016 and reduced political violence, the court found that the Petitioner's fear was not objectively reasonable. The BIA had properly considered the evidence, and the record did not compel reversal.

On nexus, the court applied the "one central reason" test, finding substantial evidence that the harm was not motivated by political opinion but by general law enforcement during a protest. The Petitioner's evidence of targeted harassment was deemed insufficient, aligning with cases like Escobar v. Garland, 54 F.4th 613 (1st Cir. 2022).

For withholding of removal, which requires a higher "clear probability" standard, the court summarily affirmed denial, as the asylum claim failed. Similarly, for CAT, the Petitioner did not show acquiescence by Cape Verdean officials in torture, and the general country conditions evidence was inadequate to meet the "more likely than not" burden under 8 C.F.R. § 1208.16(c)(2).

The opinion concluded by reiterating the judiciary's limited role in immigration appeals, deferring to agency expertise unless the record clearly demands otherwise. No concurring or dissenting opinions were filed. This decision reinforces the First Circuit's strict application of substantial evidence review in asylum cases, particularly emphasizing the importance of corroboration and the impact of changed circumstances in the country of origin. It may influence future petitions by underscoring that minor inconsistencies can undermine credibility under the REAL ID Act, potentially leading to more rigorous scrutiny at the agency level.

Link to the Decision

https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/24-2108P-01A.pdf.

Citation

Cabral Fortes Tomar v. Bondi, 98 F.4th 456 (1st Cir. 2026)

Note on The REAL ID Act

The REAL ID Act of 2005 (Public Law 109-13, Division B) is a U.S. federal law enacted on May 11, 2005, as part of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief. It was prompted by recommendations from the 9/11 Commission to enhance national security by improving the reliability of identification documents and tightening certain immigration procedures.

The Act's most widely known component establishes minimum security standards for driver's licenses and non-driver ID cards issued by states. Federal agencies are prohibited from accepting such documents for certain "official purposes" (e.g., boarding federally regulated commercial aircraft, accessing secure federal facilities, or entering nuclear power plants) unless the state complies with requirements such as:

• Verifying the applicant's identity, date of birth, Social Security number (or ineligibility), lawful status in the U.S., and principal residence.
• Issuing documents with machine-readable technology, anti-counterfeiting features, and secure production processes.
• Limiting temporary or limited-term licenses to the period of authorized stay. States must participate in interstate data-sharing compacts if receiving related federal grants. Non-compliant IDs are not valid for federal purposes after phased enforcement deadlines (full enforcement generally effective from May 7, 2025, with extensions possible). This aims to reduce identity fraud, terrorism risks, and document forgery.

The Act made significant amendments to the Immigration and Nationality Act (INA), particularly affecting asylum, withholding of removal, and related relief:

• Under amendments to INA § 208 (codified at 8 U.S.C. § 1158), an asylum applicant's testimony alone may suffice only if credible, persuasive, and referring to specific facts sufficient to demonstrate eligibility. No automatic presumption of credibility exists. Factors for assessing credibility include demeanor, candor, consistency (internal, between oral/written statements, and with other evidence like country conditions reports), and any inaccuracies or falsehoods. Corroborating evidence is required where reasonably obtainable; inability to obtain it does not excuse the burden unless justified. These changes, from the REAL ID Act, apply to asylum and other forms of relief from removal.
• Applicants must show that a protected ground (race, religion, nationality, membership in a particular social group, or political opinion) was "one central reason" for the persecution.
• Expanded grounds of inadmissibility and deportability for terrorist activity, including broader definitions of "terrorist organization," material support (with limited waivers), and military training from such groups. Eliminated certain discretionary waivers and applied changes retroactively.
• Granted the Secretary of Homeland Security broad discretion to waive laws for constructing border barriers/roads, with limited judicial review.
• Limited habeas corpus and other review of certain removal orders, discretionary denials, and related claims, channeling challenges through specified INA procedures.
• Other measures included changes to delivery bonds, custody rules, and asylum processing.

In immigration contexts (e.g., asylum cases), the Act's credibility and corroboration rules have been particularly influential, allowing adverse findings based on any inconsistency (not just central ones) and emphasizing the need for supporting evidence.

The Act does not mandate that individuals carry REAL ID-compliant documents for everyday use (e.g., voting, driving, or accessing non-federal services) but sets federal acceptance standards.