author: LIPEZ, Circuit Judge.

text:
    Catherine RUELI, et al., Plaintiffs, Appellants, v. BAYSTATE HEALTH, INC., and Baystate Visiting Nurse Association & Hospice, Inc., Defendants, Appellees.
    No. 15-1198
    United States Court of Appeals, First Circuit.
    August 23, 2016

      Shannon Liss-Riordan, with whom Li-chten & Liss-Ridrdan, P.C., Boston, was on brief, for appellants.
    Robert Morsilli, with whom Douglas J. Hoffman and Jackson Lewis P.C., Boston, were on brief, for appellees.
    Before HOWARD, Chief Judge, and LYNCH and LIPEZ, Circuit Judges.
   LIPEZ, Circuit Judge.

Plaintiffs are a putative class of unionized nurses who sued their employer in state court for unpaid wages and overtime pay for work performed outside their approved shifts. Their employer removed the case to federal court, citing the doctrine of complete preemption, under which claims requiring interpretation of a collective bargaining agreement (“CBA”) are reclassified as federal claims. The district court, finding that this case is controlled by our opinion in Cavallaro v. UMass Memorial Healthcare, Inc., 678 F.3d 1, 3-4 (1st Cir. 2012), determined that complete preemption applies and therefore denied plaintiffs’ motion to remand. Separately, it granted the defendants’ motion for judgment on the pleadings. Plaintiffs appeal, challenging both orders.

We must decide whether there is a plausible argument, as defendants contend, that adjudicating plaintiffs’ claims will require the resolution of a genuine interpretive dispute about one or more provisions of the CBA. If so, the putative state law claims are completely preempted, and removal was proper. Separately, we must determine whether the plaintiffs, in agreeing to a CBA containing a grievance and arbitration provision, were precluded from bringing this suit, requiring the district court to grant judgment on the pleadings to defendants.

We affirm.

I.

Catherine Rueli and seven other named plaintiffs are employed by defendants-ap-pellees Baystate Visiting Nurse Association & Hospice, Inc. and Baystate Health, Inc. (“Baystate”). Plaintiffs are visiting nurses, i.e., nurses responsible for traveling to patients’ homes to provide care. As members of a union, the Massachusetts Nurses Association, plaintiffs concede that they are subject to the terms of a CBA between that union and Baystate. The agreement’s provisions include:

• A preamble stating that “[i]t is the intent and purpose of this Agreement to promote orderly collective bargaining and the settlement of all differences or disputes through the grievance and arbitration procedures established herein.”
• A salary schedule based on seniority, CBA § 3.1, App’x A, separate pay provisions for per diem nurses, id. art. XXXV(5)-(6), and a separate “per visit” compensation scheme, id. art. XXXVI.
• A number of provisions for premium pay, including time-and-a-half pay for hours worked beyond the standard 37 1/2-hour work week, id. § 4.2, pay for on-call time, id. §§ 4.4(B), 5.3, 6.3(A), 31.1(3), and evening differential pay, id. §§ 4.7(E), 4.8(D), 5.4.
• A scheduling provision requiring that “[a] definite reporting time, working schedule and staffing schedule ... shall be established by [Baystate],” and that “schedules shall not be changed without prior discussion between both parties.” Id. § 4.1(B).
• A requirement that “[a]ll patient documentation shall be completed at the point of care or prior to the end of the employee[’]s shift. Any variations from either of these requirements are subject to the employee’s request and approval of the clinical manager which shall not be unreasonably withheld. To assist the manager in making her/his reasonable determination, a conversation shall take place in which the employee’s and patient[’]s needs will be discussed.” Id. § 4.1(C).
• A management rights clause, giving Baystate management “the recognized reserved right” “to schedule and assign work to employees; to determine the means, methods, processes, materials and schedules of operations; ... to establish standards and to maintain the efficiency of employees; [and] to establish and require employees to observe [Bays-tate’s] rules and regulations.” Id. § 16.1.
• A grievance and arbitration provision allowing that “[grievances may be filed by a nurse, a group of nurses, the Unit Representative or Massachusetts- Nurses Association.” The provision requires that grievances first be submitted to an immediate supervisor, then, if not resolved, escalated to the President of Baystate, and, if still not resolved, grievances “shall be submitted to arbitration in accordance with the voluntary rules of the American Arbitration Association. The decision of the Arbitrator shall be final and binding upon the employees[.]” Id. The term “grievances” is not defined in the agreement.

Plaintiffs brought suit in Hampden County Superior Court, claiming that the volume of work required them to work before and after their scheduled shifts and they were not paid for that time. In seeking wages owed and other relief under the Weekly Wage Act, Mass. Gen. Laws ch. 149, § 148, and the Overtime Act, Mass. Gen. Laws ch. 151, § IB, they sue for themselves and on behalf of a broad putative class: “all others similarly situated, namely all other individuals who are, and who have been, employed as nurses by Defendants who have not received all wages and overtime payments due to them.” Compl. ¶ 10.

Plaintiffs alleged the following facts in their complaint, which we accept as true:

• “In their employment with Baystate, visiting nurses such as the named plaintiffs have been paid an hourly wage (ranging from approximately $28 to $38 per hour).” Id. at ¶ 13.
• “Due to the volume of work assigned to them, the nurses are regularly required to work outside of their regularly scheduled shifts.” Id. at ¶ 15. ..
• “This unpaid work has included preparatory work before they have visited a patient and follow-up work after they have visited a patient.” Id. at ¶ 16.'
• “As a result, the nurses often do not receive overtime payments to which they are entitled.” Id. at ¶ 17.
• “This unpaid work frequently consists of computer work in preparation for a visit with a patient, and computer work following up after a visit. Thus, much of this unpaid work is completed by the nurses while they are logged onto the Baystate computer system. Defendants are therefore aware of the work performed by the nurses outside of their regularly scheduled shifts for which they are not compensated.” Id. at ¶ 18.

Plaintiffs do not allege that any of the nurses informed Baystate about this additional unpaid work, or that they followed the grievance procedure laid out in the CBA.

Baystate removed this action to the United States District Court for the District of Massachusetts, arguing that these state statutory claims are “completely preempted” by § 301 of the Labor Management Relations Act (“LMRA”). See Livadas v. Bradshaw, 512 U.S. 107, 121-25, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994); 29 U.S.C. § 185(a). Plaintiffs moved to remand the case to state court. Before that motion was decided, Baystate moved for judgment on the pleadings, arguing that “[i]f a claim is preempted, and plaintiffs have not pursued those claims through the grievance procedure under the relevant CBA, the claims are not only subject to removal, but also dismissal.” Agreeing that the claims are completely preempted, the district court denied plaintiffs’ motion to remand, holding that our opinion in Caval-laro controlled and that plaintiffs’ claims are completely preempted by § 301. Rueli v. Baystate Health Inc., No. 3:14-cv-10319-MGM, 2015 WL 132662, at *2-*3 (D. Mass. Jan. 9, 2015). Believing that its finding of complete preemption required dismissal of the case, the district court then granted Baystate’s motion for judgment on the pleadings. Rueli v. Baystate Health Inc., No. 3:14-cv-10319-MGM, op. at 55-56 (D. Mass. Jan. 30, 2015). Plaintiffs challenge both orders, arguing that Caval-laro does not control and complete preemption does not apply.

II.

A. Complete preemption

We outline complete preemption doctrine as it developed in the context of § 301 of the LMRA.

1. Creating federal jurisdiction

“Complete preemption” is distinct from “[ojrdinary, or defensive, preemption.” Cavallaro, 678 F.3d at 4 n.3. It “applies where a purported state claim ... is re-characterized as a federal claim” such that it is said to arise under federal law and permit removal to federal court. Id. at 4; see also 28 U.S.C. §§ 1331, 1441. As one of our sister circuits has characterized the concept, “ ‘[cjomplete preemption’ is a misleadingly named doctrine.” Hughes v. United Air Lines, Inc., 634 F.3d 391, 393 (7th Cir. 2011). “Preemption normally is a defense .... But ‘complete preemption’ is not a defense. It means that the claim itself arises under federal law” for purposes of the well-pleaded complaint rule. Id.

Section 301 of the LMRA, enacted in 1947, creates federal subject matter jurisdiction over “[sjuits for violation of contracts between an employer and a labor organization representing employees.” 29 U.S.C. § 185(a). The Supreme Court later held that § 301 is “more than jurisdictional — [] it authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.” Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 450-51, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). “[T]he subject matter of § 301(a) ‘is peculiarly one that calls for uniform law.’ ” Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962) (quoting Pa. R.R. Co. v. Pub. Serv. Comm’n, 250 U.S. 566, 569, 40 S.Ct. 36, 63 L.Ed. 1142 (1919)).

It was against this background that the Supreme Court held that “the preemptive force of § 301 is so powerful as to displace entirely any state cause of action for violation of contracts between an employer and a labor organization. Any such suit is purely a creature of federal law .... ” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 23, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (internal quotation marks omitted) (footnote omitted) (interpreting the holding of Avco Corp. v. Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968)). Although “state courts have concurrent jurisdiction over controversies involving collective-bargain.ing agreements,” United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 368, 110 S.Ct. 1904, 109 L.Ed.2d 362 (1990), defendants may choose to remove such cases to. federal court.

The Supreme Court has expanded the doctrine beyond its original scope, holding that “the pre-emptive effect of § 301 must extend beyond suits alleging contract violations,” in order to prevent plaintiffs from “evad[ing] the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract,” i.e., to prevent them from avoiding complete preemption through artful pleading. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210-11, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Lueck marked the beginning of a gradual expansion of complete preemption to any state law claims that satisfy one of two tests: the claims must either be “founded directly on rights created by collective-bargaining agreements” or “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482 U.S. 386, 394, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987).

We focus on the latter test for complete preemption, which we have described as whether “resolution” of a claim “arguably hinges upon an interpretation of the collective bargaining agreement.” Flibotte v. Penn. Truck Lines, Inc., 131 F.3d 21, 26 (1st Cir. 1997); see also BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 832 (1st Cir. 1997): The qualifier “arguably” is necessary because, at the outset of a case when defendants remove to federal court, “we cannot know the exact contours of the wage dispute and the precise CBA terms likely to require interpretation cannot be certain.” Cavallaro, 678 F.3d at 8. This “arguably” test focuses on “the legal character of a claim,” not its underlying facts. Livadas, 512 U.S. at 123, 114 S.Ct. 2068. “[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 pre-emption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988).

District courts need not conduct this analysis for every putative state law claim. Where plaintiffs bring multiple state-law claims based on the “same nucleus of operative facts,” the court need only determine whether one of them is completely preempted and, therefore, removable. BIW Deceived, 132 F.3d at 833 (citing 28 U.S.C. § 1367(a)). If so, the others may also be removed — even if they are not completely preempted, they will be subject to supplemental jurisdiction in federal court. Id.; Cavallaro, 678 F.3d at 5.

2. Disposition of completely preempted claims

“When one turns from removal of the case to disposition of the claims, a different set of issues arise.” Cavallaro, 678 F.3d at 6. Where complete preemption applies, the CBA must be interpreted under the “evolving federal common law grounded in national labor policy,” Bowen v. U.S. Postal Serv., 459 U.S. 212, 225, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983), rather than state contract law. This promotes “interpretive uniformity and predictability,” which are thought to promote the orderly resolution of labor disputes. Lueck, 471 U.S. at 211, 105 S.Ct. 1904. In particular, “federal common-law rules of decision ... assure that agreements to arbitrate grievances w[ill] be enforced, regardless of the vagaries of state law and lingering hostility toward extrajudicial dispute resolution.” Livadas, 512 U.S. at 122, 114 S.Ct. 2068.

The relevant CBA invariably includes an arbitration clause, see Lingle, 486 U.S. at 411 n.11, 108 S.Ct. 1877 (recognizing that “[arbitrators are delegated by nearly all [CBAs] as the adjudicators of contract disputes”), and, under the federal common law applicable under § 301, there is a heavy presumption that claims requiring interpretation of the CBA are arbitra-ble.

[W]hen a collective bargaining agreement contains an arbitration clause ... “a presumption of arbitrability [is created] in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.”

Local 285, Serv. Emps. Int’l Union v. Nonotuck Res. Assocs., 64 F.3d 735, 738 (1st Cir. 1995) (alterations in original) (quoting AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)); see also Otis Elevator Co. v. Int’l Union of Elevator Constructors, Local 4, 408 F.3d 1, 7 (1st Cir. 2005) (highlighting the “fundamental principle of industrial relations in the United States that labor disputes are settled through voluntary arbitration rather than labor/management strife”). In most cases, a claim that requires interpretation of the applicable CBA is covered by “a broadly-phrased grievance and arbitration provision in the CBA,” and such claims are dismissed “so long as relief can be provided within the CBA process.” Cavallaro, 678 F.3d at 6; see also Jackson v. Liquid Carbonic Corp., 863 F.2d 111, 114 (1st Cir. 1988) (“[CJlaims ... preempted by section 301 [are] relegated, in the first instance, to the grievance procedures available under the [CBA].”).

B. Massachusetts wage claims

We need only determine whether one of the claims is completely preempted, given that they are based on the same facts. See Cavallaro, 678 F.3d at 5; BIW Deceived, 132 F.3d at 833; 28 U.S.C. § 1367(a). We focus on the Weekly Wage Act claim. The Act requires that “[e]very person having employees in his service shall pay weekly or bi-weekly each such employee the wages-earned by him” within a fixed time period after the work is performed. Mass. Gen. Laws ch. 149, § 148.

The Act “was intended and designed to protect wage earners from the long-term detention of wages by unscrupulous employers.” Melia v. Zenhire, Inc., 462 Mass. 164, 967 N.E.2d 580, 587 (2012) (quoting Cumpata v. Blue Cross Blue Shield of Mass., Inc., 113 F.Supp.2d 164, 167 (D. Mass. 2000)). Consistent with its purpose to remedy the withholding of wages indisputably owed, the Act allows private plaintiffs to sue for treble damages, attorneys’ fees, and costs, and allows the Attorney General of Massachusetts to seek criminal penalties. Mass. Gen. Laws ch. 149, § 148.

To prevail on a Weekly Wage Act claim, a plaintiff must “prove there are wages owed,” though the Act itself provides no substantive standard for determining what wages are owed. Cavallaro, 678 F.3d at 8. Consistent with its name, the Weekly Wage Act was intended to ensure that employers pay wages weekly or bi-weekly, not to create substantive standards for employee pay. See Lipsitt v. Plaud, 466 Mass. 240, 994 N.E.2d 777, 784-85 (2013) (characterizing the Weekly Wage Act as a supplement to common law causes of action for breach of contract and quasi-contract to recover unpaid wages, with no mention of any role for the Act in creating substantive standards for wages).

The Supreme Judicial Court of Massachusetts has emphasized the importance of the Weekly Wage Act to the public policy of the state. Melia, 967 N.E.2d at 588 (stating that the Act “protect[s] fundamental public policy,” and that “the Legislature has highlighted the fundamental importance of the Wage Act”). Accordingly, the court has held that the protections of the Weekly Wage Act cannot be waived by workers. Id.; see Mass. Gen. Laws ch. 149, § 148 (“No person shall by a special contract with an employee or by any other means exempt himself from this section.... ”). The Act does not “guarantee venue in ' a Massachusetts court,” however, and if an employee enters a binding agreement with a forum selection clause, she must bring her Weekly-Wage Act claim in the agreed-upon forum.. Melia, 967 N.E.2d at 588-89; see also Dixon v. Perry & Slesnick, P.C., 75 Mass.App. Ct. 271, 914 N.E.2d 97, 99-100 (2009) (“[C]laims under the Wage Act are arbi-trable.”). The exception is where that forum would apply law that “would effectively deprive the employee of substantive rights guaranteed by the Wage Act.” Melia, 967 N.E.2d at 589. “A forum selection clause that, in operation, would deprive an employee of substantive rights guaranteed by the Wage Act violates public policy and is unenforceable.” Id. at 590.

C. Cavallaro

Much of the dispute between the parties focuses on Cavallaro. In Cavallaro, as here, plaintiffs were unionized nurses suing their employers for back pay, including for hours worked before and after their scheduled shifts. Specifically, plaintiffs alleged that they had “been deprived of compensation for work performed during their meal break, for work performed before and after shifts, and for time spent attending training sessions.” Cavallaro, 678 F.3d at 2. They brought thirteen Massachusetts state law claims, including a claim under the Weekly Wage Act. Cavallaro, 678 F.3d at 3.

We noted that “to succeed” on a Weekly Wage Act claim, “an employee must, among other things, prove there are wages owed.” Id. at 8. We treated the question of whether wages were owed as incorporating the question of whether the CBA provided for wages that had not been paid. And, because the CBA provisions governing whether the plaintiffs had performed com-pensable work were ambiguous enough to plausibly give rise to an interpretive dispute, we held that “determining what (if anything) is owed — an inevitable issue here — depends at least arguably on interpretations and applications of the CBA at issue.” Thus the claim was completely preempted. Id.

We explained which provisions of the CBA plausibly would require interpretation. For example, adjudicating whether plaintiffs were entitled to wages for training time would likely require interpretation of the CBA provision specifying that “whether certain training programs are compensable depends on the employee having made a ‘timely’ request to attend.” Id. Similarly, whether wages were owed for meal time would likely require interpretation of the CBA provision stating that whether that time was compensable “depends upon whether a nurse remained in the ‘patient care area.’ ” Id.

III.

We review de novo both the denial of the motion to remand, which is a question of federal subject matter jurisdiction, see BIW Deceived, 132 F.3d at 830, and the grant of judgment on the pleadings as a matter of- law, see Flibotte, 131 F.3d at 25.

A. Removal

The question before us is whether resolving one of the claims would require a court to interpret the CBA. As stated above, we focus on the Weekly Wage Act claim. See BIW Deceived, 132 F.3d at 833; Cavallaro, 678 F.3d at 5; 28 U.S.C. § 1367(a).

Plaintiffs emphasize that they do not rely on any provisions of the CBA to establish their claim. To be sure, as plaintiffs acknowledge, no wages are owed under the CBA for hours worked outside scheduled shifts without approval. Such approval is available based on either “prior discussion between both parties,” CBA § 4.1(B), or, in the case of additional time to complete patient documentation, “approval of the clinical manager which shall not be unreasonably withheld,” id. § 4.1(C). However, plaintiffs argue, these requirements are not at issue because under the Weekly Wage Act, wages are owed for all work the employer “suffers or permits” to be done, regardless of whether it would be compen-sable under the CBA.

Plaintiffs articulate the “suffered or permitted” standard as whether Baystate “knew or should have known they were working time outside of their shifts[ ] and did not pay them for their time.’’ This formulation mirrors the standard for determining if overtime pay is owed under the state Overtime Act and the federal Fair Labor Standards Act. See Vitali v. Reit Mgmt. & Research, LLC, 88 Mass. App.Ct. 99, 36 N.E.3d 64, 68-70 (2015); Raposo v. Garelick Farms, LLC, 293 F.R.D. 52, 56 (D. Mass. 2013); Prime Commc’ns, Inc. v. Sylvester, 34 Mass.App.Ct. 708,615 N.E.2d 600, 602 ( 1993). Bays-tate accepts this formulation, and we therefore apply the “suffered or permitted” standard.

With that background, we must consider whether plaintiffs’ Weekly Wage Act claim plausibly would require interpretation of the CBA. We conclude that it would. We acknowledge that actual knowledge is a matter of pure fact. Hence, if plaintiffs were able to vindicate their claims with proof of Baystate’s actual knowledge of their unpaid hours, they could show that Baystate “suffered or permitted” them to work those hours without the need to interpret the CBA. However, plaintiffs’ complaint does not allege a basis for actual knowledge of all of the unpaid hours worked by the nurses.

The only particularized allegation suggesting actual knowledge is that Baystate knew of all the hours worked on its computer system. Compl. ¶ 18 (“[M]uch of this unpaid work is completed by the nurses while they are logged onto the Baystate computer system. Defendants are therefore aware of the work performed by the nurses outside of their regularly scheduled shifts for which they are not compensated.”). In plaintiffs favor, we assume ar-guendo that actual knowledge without more would suffice to show sufferance or permission. Yet even accepting the further assumption that plaintiffs could show Baystate’s actual knowledge of every hour worked on the computers, plaintiffs do not limit their claims to those hours. They assert only that “much of this unpaid work” would be reflected on the computer logs. Id. (emphasis added).

Moreover, the work at issue was apparently performed by the visiting nurses off-site, including at patients’ homes, away from the immediate gaze of their superiors. We think it unlikely that plaintiffs can prove actual knowledge of those hours to Baystate solely on the basis of the computer logs. Cf. Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 44 (1st Cir. 2013) (finding the allegation that an employer had actual or constructive knowledge under the FLSA of nurses’ unpaid hours sufficient to survive a motion to dismiss, where “the employees’ uncompensated work was performed on defendants’ premises during operational hours, and in full view of defendants’ managers and supervisors”). We thus think it is not only plausible, but likely, that plaintiffs will need to rely on constructive knowledge for some, if not all, of the hours at issue.

In other words, resolution of this dispute will likely involve a determination of whether Baystate should have known about the nurses’ unpaid work. Unlike actual knowledge, this issue must be considered “in view of the employer’s ‘duty ... to inquire into the conditions prevailing in his business.’ ” Vitali, 36 N.E.3d at 69 (alteration in original) (quoting Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508, 512 (5th Cir. 1969)). The constructive knowledge inquiry is not limited to facts — it is intertwined with an analysis of the employer’s duty to inquire into what workers are doing, and what reasonable diligence the employer must perform to ensure that unauthorized hours are not being worked. This inquiry into Baystate’s obligations can be expected to require interpretation of the CBA.

For example, determining whether Baystate was required to look beyond the nurses’ time sheets might depend on whether it was entitled to rely on the provisions specifying that work hours cannot be changed without Baystate’s permission, CBA §§ 4.1(B)-(C), and the management rights clause giving Baystate the right to create workplace rules and set schedules, id. § 16.1. See also Martin v. Shaw’s Supermarkets, Inc., 105 F.3d 40, 43-44 (1st Cir. 1997) (holding that plaintiffs claim would require interpretation of the management rights clause of the CBA, and was therefore preempted); Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 16 (1st Cir. 2001) (citing the management rights clause of the CBA in support of its holding that plaintiffs claims were completely preempted). Baystate reasonably could argue that, because of those provisions, any duty to inquire into employee hours is limited when no request for permission to work additional hours has been made.

The CBA, however, reflects the possibility that the permission requirement does not apply to every “extra” hour worked. The agreement provides that “[a]ll patient documentation shall be completed at the point of care, or prior to the end of the employee[’]s shift.” CBA § 4.1(C) (emphasis added). Although the meaning of this provision is not clear, it arguably contemplates occasions when nurses will need to work overtime to complete patient documentation “at the point of care” — albeit after “the end of the employee[’]s shift”— when the demands of patient care do not leave time for paperwork during the shift. That is to say, it is plausible that determining the impact of the permission requirement — and, more broadly, determining Baystate’s constructive knowledge — will require interpreting CBA § 4.1(C) in combination with the permission and management rights provisions. Cf. Kobold v. Good Samaritan Reg’l Med. Ctr., Nos. 13-33528, 13-35590, 13-35265, 832 F.3d 1024, 1036, 2016 WL 4191521, at *6 (9th Cir. Aug.9, 2016) (holding a plaintiffs state-law wage claims completely preempted because a CBA provision providing for overtime “except when there is a change of schedule agreed upon by the Medical Center and nurse” would need to be interpreted).

Resisting this conclusion, plaintiffs’ brief warns us that a finding of complete preemption would amount to a finding that “union employees have fewer rights under state wage laws than non-union employees,” a result that “would effectively penalize workers for being union members.” This outcome would, plaintiffs suggest, contravene the Supreme Court’s statement in Livadas that § 301 “cannot be read broadly to preempt nonnegotiable rights conferred on individual employees as a matter of state law.” 512 U.S. at 123-24, 114 S.Ct. 2068; see also Lueck, 471 U.S. at 212, 105 S.Ct. 1904 (“[I]t would be inconsistent with congressional intent under [§ 301] to preempt state rules that ... establish rights and obligations, independent of a labor contract.”); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 751, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (noting that the LMRA was not intended “to prevent the States from establishing minimum employment standards that labor and management would otherwise have been required to negotiate”).

Here, however, Baystate has not argued that plaintiffs have waived the substantive rights granted to them by Massachusetts wage statutes. To the contrary, it takes the position that the nurses’ claims may be pursued through the agreed-to grievance and arbitration procedure, which permits grievances to be filed by a nurse or a group of nurses. In its motion for judgment on the. pleadings, Baystate argued that plaintiffs should have first brought their claims through the grievance and arbitration procedure, emphasizing the intent of the CBA to channel all disputes into that process. In Baystate’s words, “the relief sought by Plaintiffs in this case was available to them under the CBA’s grievance procedure.” In its brief on appeal, Baystate again argues that the relief sought by plaintiffs was available via the agreed-to dispute resolution mechanism.

In Cavallaro, we expressly declined to decide whether the completely preempted Weekly Wage Act claim could be brought via the CBA grievance process. 678 F.3d at 8; see also Livadas, 512 U.S. at 124 n.18, 114 S.Ct. 2068. We need not decide this question here. Baystate’s statements make clear that it interprets the CBA to allow plaintiffs to pursue the remedy they seek in arbitration, and that plaintiffs may rely on that interpretation when bringing their claims, such that “relief’ for violations of the state wage statutes “can be provided within the CBA process.” Cavallaro, 678 F.3d at 6.

Because the Weekly Wage Act claim is completely preempted, the entire action was removable to federal court and the motion to remand was properly denied.

B. Judgment on the pleadings

Plaintiffs, in their opposition to the motion for judgment on the pleadings, omitted any discussion of the grievance and arbitration provision in the CBA, effectively waiving any argument that it did not apply to their claims. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995). Similarly, on appeal, plaintiffs omit any argument that their claims are not covered by the grievance and arbitration requirement of the CBA.

Under the federal common law applicable to completely preempted claims, claims are typically found to be arbitrable where the grievance and arbitration provision is “broadly-phrased” and “relief can be provided within the CBA process.” Cavallaro, 678 F.3d at 6; see also Local, 285, Serv. Emps. Int’l Union, 64 F.3d at 738. The mandatory grievance and arbitration provision at issue here covers all “grievances.” Absent any argument to the contrary, we have no trouble determining that the provision is broad enough to encompass plaintiffs’ claims.

Hence, the CBA required the nurses to raise their wage claims through the grievance procedure in the first instance. The court properly entered judgment on the pleadings and dismissed plaintiffs’ claims.

Affirmed.

      . At the time of the complaint the minimum wage was eight dollars per hour, H.B. 4781, Gen. Ct., 2006 2d Ann. Sess., 2006 Mass. Legis. Serv. Ch. 271, while today it stands at ten dollars per hour, Mass. Gen. Laws Ann. ch. 151, § 1.

      . Though other federal statutes completely preempt state laws, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (Employee Retirement Income Security Act); Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 11, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) (National Bank Act), we deal here only with the doctrine as it applies to the LMRA.

      . "Interpretation” of the CBA must be distinguished from mere "consultation.” "[W]hen the meaning of contract terms is not the subject of dispute, the bare.fact that a collective-bargaining agreement will be consulted” does not trigger complete preemption. Livadas, 512 U.S. at 124, 114 S.Ct. 2068. This principle applies where "[a] collective-bargaining agreement ... contain[s] information such as rate of pay ... that might be helpful in determining the damages to which a worker prevailing in a state-law suit is entitled.” Lingle v. Norge Div. of Magic Chef, Inc„ 486 U.S. 399, 413 n.12, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Hence, “[c]ourts confronted with state law claims must ... locate the line between the need for mere consultation of [the] CBA, which does not demand federal preemption, and more active interpretation of that agreement, which does preempt the state law claims.” Lydon v. Boston Sand & Gravel Co., 175 F.3d 6, 10 (1st Cir. 1999).

      . This standard does not necessarily apply to interpretation of an arbitration provision to determine whether it covers federal statutory claims. See Barrentine v. Ark.-Best Freight Sys., Inc,, 450 U.S. 728, 745, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (holding that Fair Labor Standards Act claims may be brought in federal court notwithstanding an arbitration provision in a CBA); Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (holding that workers may bring Title VII discrimination claims in federal court notwithstanding an arbitration provision in a CBA).

      . In Cavallaro, we assumed but did not decide that the statutory rights created by the Weekly Wage Act were non-waivable. 678 F.3d at 7. Because Cavallaro predated Melia, we did not then have the benefit of the Massachusetts Supreme Judicial Court’s holding that the rights created by the Wage Act cannot be waived. See Melia, 967 N.E.2d at 588.

      . Plaintiffs also brought a claim under the Overtime Act, Mass. Gen. Laws ch. 151, § 1A, which we referred to in Cavallaro as the Massachusetts Fair Minimum Wage Act. Cavallaro, 678 F.3d at 9. Because the district court had properly dismissed the Overtime Act claim on the ground that the statute does not apply to employees who work "in a hospital," Mass. Gen. Laws ch. 151, § 1A(16), we did not reach the question of whether adjudication of that claim would require interpretation of the CBA. Id The parties agree that the hospital employee exception does not apply to the visiting nurses in this case.

      . We also said in Cavallaro that "any claim for compensation above the state minima must be entirely dependent on the CBA.” 678 F.3d at 8. Baystate argues that this statement amounts to a holding that a claim for unpaid wages determined according to a wage schedule in a CBA, higher than the state minimum wage, is necessarily a claim to vindicate rights created by the CBA, an independent ground on which we must find complete preemption. See Caterpillar, 482 U.S. at 394, 107 S.Ct. 2425. Plaintiffs respond that this reading of Cavallaro would run afoul of Livadas and Lingle, which in plaintiffs’ view establish that suing for damages based on payment formulas in a CBA does not necessarily trigger complete preemption. See Lingle, 486 U.S. at 413 n.12, 108 S.Ct. 1877 ("A collective-bargaining agreement may, of course, contain information such as rate of pay ... that might be helpful in determining the damages to which a worker prevailing in a state-law suit is entitled. Although federal law would govern the interpretation of the agreement to determine the proper damages, the underlying state-law claim, not otherwise preempted, would stand.”); Livadas, 512 U.S. at 124, 114 S.Ct. 2068 (quoting same passage from Lingle). Because wé hold that plaintiffs' Weekly Wage Act claim is completely preempted on other grounds, we need not resolve the disputed meaning of this statement in Cavallaro.

      . The Appeals Court of Massachusetts has expressly held that this "suffered or permitted” standard for compensable work applies in both FLSA and Overtime Act cases. Vitali, 36 N.E.3d at 68-69; see also Mullaly v. Waste Mgmt. of Mass., Inc., 452 Mass. 526, 895 N.E.2d 1277, 1281 (2008) ('TThe Overtime Act] was 'intended to be essentially identical’ to the Fair Labor Standards Act[.]”). However, the Massachusetts appellate courts have not as yet made any such holding with regard to the Weekly Wage Act.


source: Caselaw Access Project

license: Public Domain

text:
    Yordanos Araya BAHTA, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 14-1995
    United States Court of Appeals, First Circuit.
    August 24, 2016

      Derege B. Demissie and Demissie & Church, Cambridge, MA, on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.
    Before THOMPSON, SELYA, and LIPEZ, Circuit Judges.

       Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch has been substituted for former Attorney General Eric H. Holder, Jr., as the respondent.

   LIPEZ, Circuit Judge.

Petitioner Yordanos Araya Bahta, a native and citizen of Eritrea, seeks review of a final order of the Board of Immigration Appeals (“BIA”) denying her application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). An immigration judge (“IJ”) ordered Bahta’s removal to her homeland after concluding that Bahta failed to remedy credibility problems in her testimony with persuasive corroborating evidence. The BIA affirmed this decision. Bahta asserts that the IJ and BIA erred, inter alia, in holding that her application was not adequately supported and relying on evidence outside the record. Finding these contentions unavailing, we deny the petition for review.

I.

On February 11, 2009, Bahta entered the United States on a nonimmigrant visa. She was authorized to remain in the country until May 10, but stayed beyond that date. In October 2009, Bahta filed an application for asylum, withholding of removal, and protection under the CAT, claiming that she was persecuted in Eritrea because of her Pentecostal faith. In March 2010, Bahta was served with a Notice to Appear charging her with removability as an alien present in the United States beyond the time authorized. See 8 U.S.C. § 1227(a)(1)(B). She conceded removability, and a merits hearing was held in February 2013 on her petition for relief. Bahta was the only witness, and she provided the following account of her religious persecution.

In 1997, while Bahta was serving in the Eritrean military, a friend, Rosina Ha-dush, introduced her to the Pentecostal religion. Bahta converted and, in 1998, became a member of the Emmanuel Pentecostal Church in Asmara, the city where she lived. Bahta reported that members of the army were not allowed to follow the Pentecostal religion because the Eritrean government objected to it. Her superior officer reprimanded her for reading the Bible during her breaks, told her to stop doing so, and ordered her to attend Orthodox Church services. In her affidavit, Bah-ta states that the officer warned her that “it would be his duty to arrest me or otherwise punish me if he saw me again reading the bible or heard me invite anyone to come to church with me.”

After Bahta left the military in 2002, her continued participation in the Pentecostal Church led to two arrests. In 2003, she and others attending a prayer session at her friend’s home were arrested and taken to the police station, where she and ten to fifteen persons, including other Pentecostals, were held in a small, metal cargo container for seven days. They were given only bread to eat and were allowed out of the container twice a day to use the restroom. Upon her release, Bahta was told that if she continued practicing her religion, she would be taken to the battlefront and killed. She thereafter practiced her religion in secret at her friend’s house.

In 2008, Bahta again was arrested, this time while delivering food and clothing to an imprisoned Pentecostal pastor, and detained for two days along with four other people. As a condition of release, she was ordered to report monthly to the police station. Shortly after this second arrest, Bahta’s aunt, who lives in Saudi Arabia, secured a worker visa that enabled Bahta to go there and obtain a job as a babysitter.

In February 2009, Bahta accompanied her employers to the United States on a tourist visa that the employers arranged for her, traveling from Saudi Arabia to Washington, D.C. In her affidavit, Bahta stated that she attended church while in Washington and, for the first time in years, “prayed without looking over my shoulders in fear of being arrested.” She became concerned about returning to Saudi Arabia and, on the advice of an Ethiopian woman whom she met at the hotel, called a distant relative in Boston who urged her to travel to that city by bus. In early March, roughly two weeks after Bah-ta arrived in Washington, the Ethiopian woman took Bahta to the bus. Although Bahta asked her employers for her pass- • port before she traveled, they refused to give it to her until she returned with them to Saudi Arabia. In Boston, she regularly attended the Ethiopian Evangelical Church, which she described as the local branch of the Pentecostal Church of Ethiopia.

Bahta’s testimony was supplemented by various documents: the asylum application itself, with its accompanying affidavit; a photocopy of her United States visa showing her employment as a “personal or do.mestic employee” of the Saudi family; country conditions reports and articles describing the treatment of religious minorities in Eritrea; hand-dated photographs of her family in Eritrea; translated letters from her mother and the friend whom Bahta said had influenced her to convert to the Pentecostal religion; and a letter from the pastor of her Boston church.

In an oral ruling announced at the conclusion of the merits hearing, the IJ expressed “serious doubts” about Bahta’s credibility and highlighted two discrepancies arising from Bahta’s testimony. First, Bahta’s asylum application stated that she entered the United States in Boston, although she testified that she came with her Saudi employers to Washington, D.C., and later traveled to Boston. The IJ also questioned the timing of Bahta’s move from Eritrea to Saudi Arabia, reviewing, in detail, an exchange that took place between Bahta and the representative of the Department of . Homeland Security (“DHS”) during cross-examination. Bahta was asked if the visa application completed by her employers stated that she had been their babysitter in Saudi Arabia for five years — timing that would have overlapped with her reported arrest in Eritrea in 2008. Bahta responded, “That might be true, because they did everything.” After stating that Bahta’s explanation for the discrepancy, “was not clear to the Court,” the IJ went on to note that “the respondent did not emphatically deny that she had worked for this family in Saudi Arabia for five years.”

Although the IJ refrained from making an explicit adverse credibility finding regarding Bahta’s testimony, the judge examined whether Bahta’s supporting doeu-ments provided “corroborating, objective, credible evidence to rehabilitate [her] testimony,” and concluded that the submissions fell short. The IJ stated that Bahta “offered no proof other than her own self-serving testimony that she was in Eritrea between 2004 and 2009[,] ... and specifically in 2008 when she is alleged to have been arrested for the second time.” The IJ discounted the family photographs as evidence of Bahta’s presence in Eritrea at the relevant time because there was no foundation provided for the handwritten dates on them.

Further, the IJ noted that Bahta had not provided “any credible objective evidence that she actually was a member of the Pentecostal Church in Eritrea.” Acknowledging Bahta’s testimony that she could not get letters from the church because it had been closed by the government, the IJ questioned Bahta’s failure “to obtain letters from any individuals or the testimony of any witnesses.” The IJ also noted the absence of testimony or a letter from the relative in Boston whom Bahta said she contacted after she arrived in Washington. As for the country conditions reports, the IJ stated that “none of them mention the targeting of Pentecostals by the government for persecution.” The IJ thus concluded that Bahta had not met her burden to prove eligibility for any form of relief from removal.

Bahta appealed to the BIA. In an opinion that expressly adopted and affirmed the IJ’s conclusion, the BIA addressed in some detail Bahta’s evidence and her claims of error by the IJ. The Board challenged Bahta’s assertion that the inconsistency concerning her arrival city was the product of “a simple clerical mistake,” noting that — contrary to her testimony — her asylum application “clearly indicates she arrived in Boston” and that she “swore that the contents of her asylum application were true.” The BIA also rebuffed Bahta’s complaint that the DHS improperly relied on her visa application, which was not in the record, to ask about the duration of her employment in Saudi Arabia. The Board observed that Bahta bore the burden of proof in the proceedings, but had produced no corroborating evidence concerning the length of her employment.

The BIA thus upheld the IJ’s determination that Bahta “did not provide or adequately explain her failure to produce corroborative evidence,” and concluded that, “[i]n the absence of adequate testimony and documentary support, the respondent cannot establish her eligibility for asylum or withholding of removal.” The BIA also agreed that Bahta was not eligible for CAT relief. Accordingly, her appeal was dismissed.

Bahta timely filed a petition for review in this court, arguing that the decisions of the IJ and BIA were not supported by the record. In particular, Bahta asserts that the agency adjudicators erroneously found material inconsistencies in the evidence she presented and violated her due process rights by considering her visa application.

II.

A. Standard of Review

When the BIA adopts and affirms the findings of the IJ, and also engages in its own discussion of the rationales supporting the IJ’s determination, we review both the BIA’s and IJ’s decisions. Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014); see also Xian Tong Dong v. Holder, 696 F.3d 121, 123 (1st Cir. 2012) (“[W]here, as here, the BIA accepts the IJ’s findings and reasoning yet adds its own gloss, we review the two decisions as a unit.”). Our role is to determine whether the agency’s ruling is supported by substantial evidence in the record. See Ordonez-Quino, 760 F.3d at 87; Ivanov v. Holder, 736 F.3d 5, 11 (1st Cir. 2013). Under that deferential standard, “barring an error of law, we reverse ‘only if the record is such as to compel a reasonable factfinder to reach a contrary determination.’ ” Vasili v. Holder, 732 F.3d 83, 89 (1st Cir. 2013) (quoting Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008)); see also 8 U.S.C. § 1252(b)(4)(B).

B. Asylum

An applicant for asylum must demonstrate that she is a refugee, which requires a showing of either past persecution or a well-founded fear of future persecution based on one of five statutory grounds. See Sunarto Ang v. Holder, 723 F.3d 6, 10 (1st Cir. 2013); 8 U.S.C. § 1101(a)(42)(A) (identifying the five, grounds supporting refugee status as race, religion, nationality, membership in a particular social group, and political opinion); 8 C.F.R. § 1208.13(b). Proof of past persecution creates a rebuttable presumption of future persecution, Sunarto Ang, 723 F.3d at 10, and absent such proof, a petitioner is “eligible for asylum only if [she] can show that [her] fear, of future persecution is both subjectively genuine and objectively reasonable,” id. at 12.

After carefully reviewing the record in light of Bahta’s burden to demonstrate eligibility for asylum, we cannot conclude that a reasonable factfinder would be compelled on this record to reach a different conclusion. Bahta’s claim to asylum rests on her assertion that she was persecuted in Eritrea for practicing the Pentecostal religion, with the mistreatment including an arrest in 2008 that prompted her departure from her homeland. Although the BIA (following the IJ’s lead) did not reject Bahta’s claim out-of-hand, it concluded that her “testimony without sufficient documentary support is insufficient to meet her burden of proof.” It then considered whether Bahta had produced adequate documentary evidence to corroborate her story — an inquiry expressly authorized 'by statute. See 8 U.S.C. § 1158(b)(l)(B)(ii) (requiring an asylum applicant to provide such evidence unless it “cannot reasonably [be] obtainfed] ); see also Guta-Tolossa v. Holder, 674 F.3d 57, 62 (1st Cir. 2012) (“[A]n IJ can require corroboration whether or not she makes an explicit credibility finding.... ”).

The BIA determined that, even in combination, “[t]he respondent’s testimony, of limited credibility, and her corroborative evidence ... does not satisfy her burdens of proof.” The record permits that judgment. Bahta provided no concrete support for her claim that she was in Eritrea in. 2008, a member of the Pentecostal Church there, or arrested for her religious activity. The letter from her friend (the one whom Bahta said influenced her to become a Pentecostal) stated that Bahta had participated in the Eritrean Pentecostal Church, but the letter left the timeframe for Bah-ta’s membership in that church murky. Likewise, the letter from Bahta’s mother did not provide critical corroborative details. Although it reports (as translated) that Bahta’s friends from school and church “who are not lucky to leave the country are still in prison,” and refers to the “horror and mistreatment of those captured while cland[estine]ly performing religious activity,” it does not mention Bahta’s own arrests or her' departure for Saudi Arabia.

Nor can we conclude that the agency acted unjustifiably in expecting more persuasive corroborating evidence. For instance, it stands to reason that, despite the closure of her church, Bahta could have obtained a written statement from one or more of the individuals allegedly arrested along with her at the prayer service in 2003, or from someone among the ten to fifteen others allegedly held with her for a week in the. cargo container. Similarly, even if Bahta could not procure an official record documenting her second arrest in 2008, the agency reasonably could expect a statement from the aunt who arranged for Bahta’s move to Saudi Arabia shortly thereafter, which could have reinforced both the claimed reason for, and timing of, her move.

Submission of evidence that should have been readily obtainable also would have bolstered Bahta’s veracity more generally. To give one example, testimony by the Boston relative about Bahta’s telephone call describing her situation in Washington would have corroborated Bahta’s claim that her asylum application simply contained a mistake in identifying Boston as her arrival city. Such testimony might have included details that also could have strengthened a significant element of her story — that her employers had possession of her passport — and thus diminish the plausible inference that Bahta had not produced her passport only because its contents would undercut her claims. See Matter of J-Y-C, 24 I. & N. Dec. 260, 263 (BIA 2007) (stating that “an asylum applicant should provide documentary support for material facts which are central to his or her claim and easily subject to verification. ... The absence of such corroborating evidence can lead to a finding that an applicant has failed to meet [his] burden of proof.” (quoting Matter of S-M-J, 21 I. & N. Dec. 722, 725-26 (BIA 1997)) (omission and alteration in original)).

Bahta attempts to undermine the IJ and BIA decisions by challenging the agency’s reliance on her visa application. As described above, the DHS representative at the merits hearing stated, in effect, that Bahta’s visa application said she had worked for the Saudi family for five years — a length of time inconsistent with her report that she was arrested in Eritrea in 2008. Neither party introduced the application into the record and, upon questioning by the IJ, the agency representative said he was unable to produce the document.

Without doubt, the agency should not have used the application at the hearing if no party could produce the document. Indeed, as the BIA acknowledged, “the Immigration Judge’s decision must be based on the evidence before him,” and, in this instance, the IJ admitted that “[t]he Court ... does not have any documentation that [the five-year] representation was made in the visa application.” However, the IJ’s “serious doubts” about Bahta’s credibility, even with respect to her employment in Saudi Arabia, did not rest solely (or even largely) on the suggested conflict between Bahta’s visa application and her sworn statements that she was arrested in 2008. With respect to Bahta’s timing in Saudi Arabia, the IJ pointed to “[t]he entire series of questions and the respondent’s answers,” including her testimony that she did not have her passport, “which could clarify whether [she] actually had been in Eritrea in 2008.” The IJ seemed skeptical of Bahta’s explanation that her employers refused to return the passport.

We emphasize, moreover, that Bahta bore the burden to substantiate the facts underlying her asylum claim. As described above, the IJ noted the absence of “credible, objective evidence that she was living in Eritrea between 2004 and 2009, and specifically in 2008 when she is alleged to have been arrested for the second time.” The BIA reiterated that deficiency, observing that Bahta “ha[d] submitted no corroborating evidence concerning her employment or her time in Eritrea.”

In sum, we.cannot say, on this record, that a reasonable factfinder would be compelled to conclude that Bahta met her burden to prove past persecution. Bahta’s argument that she nonetheless showed a well-founded fear of future persecution rests primarily on the erroneous premise that she is entitled to the rebuttable presumption arising from a showing of past persecution, rather than on the necessary ‘specific proof that ... her fear of future persecution ’is both subjectively genuine and objectively reasonable.’” Guaman-Loja v. Holder, 707 F.3d 119, 122 (1st Cir. 2013) (quoting Decky v. Holder, 587 F.3d 104, 110 (1st Cir. 2009)). Having sustained the IJ and BIA’s determination that Bahta is not entitled to the presumption, we also uphold their judgment that she has not made the requisite “independent showing” of future persecution. Gilca v. Holder, 680 F.3d 109, 116 (1st Cir. 2012); see Moreno v. Holder, 749 F.3d 40, 45 (1st Cir. 2014) (observing that petitioner’s argument, regarding future persecution, dependent on the rebuttable presumption, “collapses of its own weight” because “petitioner did not succeed in proving past persecution”).

C. Other Forms of Relief

The showing required to qualify for withholding of removal — “a clear probability of persecution” — “imposes ‘a more stringent burden of proof on an alien than does a counterpart claim for asylum.’ ” Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (quoting Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005)). Accordingly, Bahta’s claim for withholding of removal necessarily fails along with her asylum claim. See id.

Although Bahta also applied for relief under the CAT, she makes only passing reference to that claim on appeal and it is therefore waived. See Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005).

Having rejected each of Bahta’s claims, we deny her petition for review. So ordered.

      . Bahta’s application also asserted membership in a particular social group as a basis for relief, but the IJ deemed that ground "not cognizable” because Bahta did not specify the particular group to which she belonged. Bah-ta does not address the social group variation of her claim in her petition for review, and we therefore deem it waived.

      . Bahta's testimony repeated in abbreviated form the more detailed account of her experi-enees presented in an eleven-page affidavit submitted with her asylum application. Among other information, the affidavit included observations about the Eritrean government's hostility toward religions other than "the officially sanctioned Orthodox or Catholic churches” and describes the government’s particular opposition to the Pentecostal Church.

      . Her affidavit, however, detailed her arrival in Washington and subsequent travel to Boston.

      . The .IJ recognized that "Eritrea is not a bastion of religious freedom,” but found that Bahta had not "met her burden of proof that she would be targeted by the government if she returned to Eritrea in 2013.” The IJ also viewed the country conditions reports as not controlling "[i]n any event, because the respondent has not even established to the satisfaction of the Court that she is in fact a Pentecostal.”

      . Section 1158(b)(l)(B)(ii) provides, in pertinent part:
      The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.... Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.

      . In full, the unsigned, translated letter, dated January 21, 2010, stated: "I, Rosina Hadush, have been residing in Riyaddh Saudi Arabia, swear in the name of Jesus Chirist[sic] that, I knaw[sic] Yordanos Bahta for many years since been in our country, Eritrea and praudly[sic] been staunch fellowers[sic] and members of the Eritrean Penecostechurch[sic].”

      . In her affidavit, Bahta speculated that her employers decided to keep her passport after she told them about her positive experience in church because they ‘'realiz[ed] that I would wish to live in a country where being a Christian was not considered illegal.'' Given that reaction, Bahta said she became frightened by the prospect of returning to Saudi Arabia because her "freedom and safety would depend entirely on [her employers’] goodwill and whim." She then sought advice from the Ethiopian woman, which led to contact with the relative in Boston.

      . As described above, Bahta said she moved to Saudi Arabia with the worker's visa secured by her aunt shortly after her 2008 arrest. A five-year employment with the Saudi family would mean that she began working for them no later than 2004.

      . The representative stated that the information concerning the duration of Bahta's employment came from "Government records,” but added that he did not "have the ability to submit [the records] to the Court.”

      . Bahta contends that the IJ misapprehended her testimony about the visa application by construing it as an admission that the five-year timeframe might be correct. The BIA, however, and arguably the IJ as well, understood her to say only that "it might be true that her employers made such a claim” when they completed the application on her behalf. (Emphasis added.)

      . We also reject Bahta's due process claim based on the government’s use of the visa application. Without condoning DHS reliance on such an extra-record document, we note that the challenged information consisted of personal details of which Bahta would have knowledge. She thus had the opportunity at the hearing and before the BIA to correct any inaccuracies, which was sufficient to meet the constitutional standard for this context. See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 6 (1st Cir. 2008) (stating that, in asylum proceedings, "fundamental fairness means in general terms that the alien must have a meaningful opportunity to present evidence and be heard by an impartial judge”); cf. Gebremichael v. INS, 10 F.3d 28, 38-39 (1st Cir. 1993) (concluding that "the motion to reopen process can ordinarily satisfy the demands of due process” when the BIA relies on extra-record facts concerning changed country conditions).
      Bahta addressed the discrepancy, however, only by reiterating her story. When asked during cross-examination how she could have been arrested in February 2008 if she was by then babysitting in Saudi Arabia, she responded, "I was arrested in Eritrea,” and said the proof of her presence in Eritrea was the "[tjhings I have submitted.” Her attorney declined to conduct redirect. Before the BIA, ■ Bahta pointed to "the record, including [her] testimony and affidavit,” as proof that she moved to Saudi Arabia in 2008. '

      . Given that the IJ supportably rejected Bah-ta’s asylum claim because she "has not even established to the satisfaction of the Court that she is in fact a Pentecostal,” we need not, and therefore do not, address whether the country conditions reports that she submitted show that the Eritrean government persecutes Pentecostals or, indeed, whether the type of mistreatment Bahta claims to have experienced in Eritrea amounted to persecution.