United States Court of Appeals
For the First Circuit
No. 07-1813
LUIS ERNESTO BONILLA and JUDITH TERESA MERCADO,
Petitioners,
v.
MICHAEL B. MUKASEY,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Cudahy,** and Lipez,
Circuit Judges.
Carlos E. Estrada, on brief for petitioners.
Jeffrey S. Bucholtz, Linda S. Wernery, and Dimitri N. Rocha on
brief for respondent.
August 25, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey is substituted for former Attorney General Alberto R.
Gonzales as respondent.
**
Of the Seventh Circuit, sitting by designation.
Cudahy, Circuit Judge. The petitioners, Luis Ernesto Bonilla
(Bonilla) and Judith Mercado Bonilla (Mercado), are Colombian
nationals. They seek judicial review of a final order of the Board
of Immigration Appeals (BIA) denying their application for asylum,
withholding of removal and relief under the Convention Against
Torture (CAT). Mercado’s application is derivative and thus, its
success depends on the success of Bonilla’s application. See Ang v.
Gonzales, 430 F.3d 50, 53 (1st Cir. 2005). We will analyze the
petition as if Bonilla were the sole petitioner. Id.
I.
Bonilla and Mercado entered the United States on or about
October 24, 2002 as non-immigrant visitors with authorization to
remain in the United States up to six months. After six months,
instead of returning to Colombia, Bonilla filed an application for
asylum, withholding of removal and CAT relief. The Department of
Homeland Security (DHS) subsequently served Bonilla with a Notice
to Appear in May 2004, charging him with being removable under 8
U.S.C. § 1227(a)(1)(B). Bonilla conceded removability.
At his hearing before an immigration judge (IJ), Bonilla
testified about the events in Colombia that formed the basis for
his claims. Prior to entering the United States, Bonilla was a
businessman in the city of Barranquilla, Colombia. He owned a food
store and lived in an apartment above the store. Bonilla was
involved in politics in Colombia, supporting the Liberal Party and
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hosting meetings in support of Liberal candidates in his store. In
2002, Bonilla supported the Liberal Party’s candidate for
president, Álvaro Uribe Vélez. It was during the run-up to the May
2002 presidential election that Bonilla began receiving anonymous
threats. In January 2002, Bonilla received a threatening phone call
at his store. The caller told him that he and his family would be
killed for his support of Uribe. Bonilla received similar phone
calls over the next few months. At times he would receive one or
two calls a day, at other times two or three calls a week. At the
end of March, Mercado answered the phone and was told that the
family would be killed for their political support of Uribe.
Following this incident, Bonilla told the rest of his family about
the threats and changed his phone number. In July 2002, he rented
out his store to another businessman but continued to live above
the store.
Bonilla succeeded in putting a stop to the threatening phone
calls by changing his number, but in September 2002 he found a
threatening letter outside his apartment. Although the people
responsible for the phone calls had not identified themselves, the
letter was from the guerilla group the Revolutionary Armed Forces
of Colombia (FARC). In the letter, FARC stated that it had been
unable to contact Bonilla by phone after he changed his number and
so it had “decided to change the rules of the game.” Because he
had ignored the telephone warnings and had supported Uribe, FARC
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declared Bonilla to be a military target. That same month, Bonilla
traveled to Venezuela. He had received a Venezuelan resident stamp
in his passport in 1997 and subsequently had traveled to Venezuela
a number of times on business, since he owned a cattle ranch in
that country. On this trip, Bonilla sold his cattle ranch and
deposited the proceeds of the sale in a bank in Venezuela.
On October 4, 2002, after returning to Colombia, Bonilla filed
a complaint with the district attorney to report the threats
against his family. Bonilla and his wife left Colombia for the
United States on October 24th. In March 2003, graffiti with the
FARC logo was sprayed outside the entrance of Bonilla’s former
store.
On May 3, 2006, the IJ denied Bonilla’s application for
asylum, withholding of removal and CAT relief. The IJ concluded
that Bonilla had been “firmly resettled” in Venezuela prior to
entering the United States and had chosen to sever his connections
with that country in order to come to the United States. Because
firm resettlement is a mandatory bar to asylum, the IJ denied
Bonilla’s asylum claim. The IJ also explained that even if Bonilla
were eligible for asylum, he had not established a well-founded
fear of persecution should he return to Colombia.
With respect to Bonilla’s claim for withholding of removal,
the IJ considered whether Bonilla had shown that it was more likely
than not he would face persecution if he returned to Colombia. The
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IJ reasoned that the evidence of past threats did not establish a
likelihood that FARC would carry out its threats against Bonilla,
citing the fact that one of Bonilla’s sons continues to live in his
former apartment as evidence that it was unlikely that FARC would
carry out its threats should Bonilla return to Colombia. Finally,
the IJ denied Bonilla’s application for CAT relief, reasoning that
Bonilla had not shown that he would be subjected to torture should
he return to Colombia or that the Colombian government would
inflict or acquiesce in his torture.
Bonilla appealed the IJ’s decision, asserting that the
evidence in the record showed that he had endured past persecution,
that the IJ erred in finding that the Venezuelan resident stamp
triggered the firm resettlement bar to asylum and that he had a
valid fear of future persecution in Colombia. On April 30, 2007,
the BIA affirmed the IJ’s decision. The BIA supported the IJ’s
conclusion that Bonilla had been firmly resettled in Venezuela and
upheld the IJ’s finding that Bonilla was ineligible for withholding
of removal. Bonilla appeals this decision.1
1
Bonilla’s CAT claim is not before us. He failed to exhaust his
administrative remedies with respect to CAT relief by failing to
identify any error in the IJ’s denial of CAT relief in his Notice
of Appeal filed with the Board. See Un v. Gonzales, 415 F.3d 205,
210 (1st Cir. 2005). He did not file a brief with the Board.
Although he requests that we reverse the agency’s CAT decision, he
does not make any legal argument to support this request. As a
result, he has failed to preserve this issue for appeal. Ramallo
Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 90 (1st Cir.
2007).
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II.
We deferentially review the agency’s findings of fact under
the “substantial evidence” standard. Sunoto v. Gonzales, 504 F.3d
56, 60 (1st Cir. 2007). Under this approach, we must “uphold the
BIA’s decision ‘unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Silva v. Gonzales, 463
F.3d 68, 72 (1st Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)). We
review the decision of the BIA and not that of the IJ, Albathani v.
INS, 318 F.3d 365, 373 (1st Cir. 2003), but to the extent that the
BIA deferred to or adopted the IJ’s reasoning, “we review those
portions of the IJ’s decision as part of the final decision of the
BIA.” Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.
2004).
A. Withholding of Removal
In order to establish eligibility for withholding of removal,
an applicant must establish that if he is removed, “he is more
likely than not to face persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.” Salazar v. Ashcroft, 359 F.3d 45, 52 (1st Cir. 2004)
(emphasis in original). If an applicant demonstrates that he
suffered past persecution, “it shall be presumed that the
applicant’s life or freedom would be threatened in the future in
the country of removal on the basis of the original claim.” 8
C.F.R. § 1208.16(b)(1)(i). The government can rebut this
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presumption by establishing that conditions in the applicant’s
native country have changed or that the applicant can avoid
persecution by relocating to a different part of the country. Id.
The BIA affirmed the IJ’s denial of withholding of removal,
concluding that Bonilla had not established that it was more likely
than not that he would be harmed if he returned to Colombia. The
BIA only expressly mentioned past persecution in its discussion of
Bonilla’s asylum claim, stating that “[s]ince a finding of firm
resettlement is a bar to asylum, we need not address whether the
respondent established that he experienced past persecution in
Colombia.” Bonilla contends that the agency erred in failing to
determine whether the evidence established past persecution. An
agency must make findings “on all grounds necessary for decision.”
Un v. Gonzales, 415 F.3d 205, 209 (1st Cir. 2005). In the case of
applications for asylum and withholding of removal, we have
observed that “[t]he absence of reasoned discussion of past
persecution undercuts any meaningful review of the IJ’s fear of
future prosecution finding, because we do not know whether [the
petitioner] should have had the benefit of the regulatory
presumption of fear of persecution based on prior events.” El
Moraghy v. Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2003); see also
Hernandez-Barrera, 373 F.3d at 22.
It is true that the BIA stated that its conclusion about firm
resettlement made consideration of Bonilla’s past persecution claim
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unnecessary. However, in affirming the IJ’s denial of withholding
of removal, the BIA stated that it found “no error on the part of
the Immigration Judge in finding the respondent ineligible for
withholding of removal,” and cited portions of the IJ’s opinion.
In those portions of the IJ’s opinion, the IJ had observed that the
threats against Bonilla were not “escalating,” and that Bonilla had
stopped receiving threatening phone calls after he changed his
phone number. The IJ also stated that “[n]obody ever came to his
store looking for him. Nobody ever came to his home looking for
him. And approximately September of 2002 [sic] he did receive a
letter, but no other action was ever taken against him or any other
member of his family.” Summing up the evidence that Bonilla had
presented, the IJ concluded that Bonilla had failed to show it was
more likely than not that FARC would carry out its threats against
him because no harm befell him “other than receiving phone calls,
one letter, and a graffiti on the security gate to his store,” and
“[h]is freedom in Colombia other than not hanging out in front of
his store and not operating the store itself does not appear to
have otherwise been curtailed by his fears of harm.”
These statements do not represent an express finding that
Bonilla did not endure past persecution, but an express finding is
not required where it is evident from the IJ’s opinion that she
considered the evidence presented and concluded that the
petitioner’s experiences do not amount to persecution. See Waweru
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v. Gonzales, 437 F.3d 199, 204 (1st Cir. 2006); Sulaimon v.
Gonzales, 429 F.3d 347, 350-51 (1st Cir. 2005). That is the case
here. The IJ considered the primary evidence on which Bonilla
relied to prove past persecution—the phone calls, the letter, the
fact that Bonilla rented out his store and the graffiti—and
determined that they were not so severe as to constitute
persecution. The IJ was not required “to intone any magic words”
since it is clear that she did not find Bonilla’s experiences
justify a finding that it was probable that he would be persecuted
should he return to Colombia. Sulaimon, 429 F.3d at 351.
Bonilla also urges us to find that the agency erred in
concluding that he did not suffer past persecution. Our review of
the agency’s finding is quite deferential, and we will reverse only
if “the evidence he presented was so compelling that no reasonable
factfinder” could conclude that he did not suffer past persecution.
Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir. 2003) (citation
omitted). The evidence on which Bonilla relies to establish past
persecution consists of frequent threatening telephone calls prior
to the 2002 election and the letter he received in September 2002
in which FARC declared him to be a military target. Although we
have observed that “credible verbal death threats may fall within
the meaning of ‘persecution,’” Un, 415 F.3d at 210, we have also
cautioned that “[t]hreats standing alone[] constitute past
persecution in only a small category of cases, and only when the
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threats are so menacing as to cause significant actual ‘suffering
or harm.’” Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008)
(quoting Butt v. Keisler, 506 F.3d 86, 91 (1st Cir. 2007)); see
also Li v. Attorney Gen. of the United States, 400 F.3d 157, 164
(3d Cir. 2005) (“[U]nfulfilled threats must be of a highly imminent
and menacing nature in order to constitute persecution.”); Lim v.
INS, 224 F.3d 929, 937 (9th Cir. 2000) (mail and telephone threats
did not compel a finding of past persecution); Boykov v. INS, 109
F.3d 413, 416 (7th Cir. 1997) (agency’s finding that the
petitioners did not suffer past persecution was upheld because the
threats “were not acted upon”). But see Tamara-Gomez v. Gonzales,
447 F.3d 343 (5th Cir. 2006) (where petitioner received threatening
phone calls from FARC, FARC found him after he relocated, and after
he left Colombia FARC vandalized his home, court concluded
petitioner had established past persecution). In the present case,
we cannot say that the agency was compelled to find that Bonilla
was persecuted. As the IJ noted, neither Bonilla nor any member of
his family was ever approached by FARC despite the fact that he
supported Uribe throughout the 2002 election. The IJ considered
the evidence on which Bonilla relied and concluded that the threats
were not severe enough to constitute persecution. Thus, we affirm
the BIA’s denial of withholding of removal.
B. Asylum
To be eligible for a discretionary grant of asylum, an
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applicant must prove that she is a “refugee” within the meaning of
the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1). The
Act defines a “refugee” as one who is “unable or unwilling to
return to . . . [his] country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). An asylum applicant can meet
her burden of proof either by showing that she suffered past
persecution on account of a protected ground, or by proving that
she has a genuine and objectively reasonable fear of future
persecution. Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007).
Asylum is not available to an alien who was firmly resettled
in another country before entering the United States. 8 U.S.C. §
1158(b)(2)(A)(vi); 8 C.F.R. § 208.15. “The firm-resettlement bar to
asylum ensures that ‘asylum is not granted to aliens who have found
a haven from persecution’ elsewhere.” Sultani v. Gonzales, 455
F.3d 878, 882 (8th Cir. 2006) (quoting Ali v. Reno, 237 F.3d 591,
595 (6th Cir. 2001)). “An alien is considered to be firmly
resettled if, prior to arrival in the United States, he or she
entered into another country with, or while in that country
received, an offer of permanent resident status, citizenship, or
some other type of permanent resettlement . . . .” 8 C.F.R. §
208.15. Under § 208.15, an alien can avoid the firmly resettled
bar if he or she can show:
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(a) That his or her entry into that country was a
necessary consequence of his or her flight from
persecution, that he or she remained in that country only
as long as was necessary to arrange onward travel, and
that he or she did not establish significant ties in that
country; or
(b) That the conditions of his or her residence in that
country were so substantially and consciously restricted
by the authority of the country of refuge that he or she
was not in fact resettled. In making his or her
determination, the asylum officer or immigration judge
shall consider the conditions under which other residents
of the country live; the type of housing, whether
permanent or temporary, made available to the refugee;
the types and extent of employment available to the
refugee; and the extent to which the refugee received
permission to hold property and to enjoy other rights and
privileges, such as travel documentation that includes a
right of entry or reentry, education, public relief, or
naturalization, ordinarily available to others resident
in the country.
The government bears the initial burden of showing firm
resettlement. Salazar, 359 F.3d at 50. If the government meets its
initial burden, a presumption arises that the alien was firmly
resettled. The alien can rebut this presumption by showing by a
preponderance of the evidence that the bar does not apply. Id.;
see also Abdalla v. INS, 43 F.3d 1397, 1399 (10th Cir. 1994).
The agency based its firm resettlement determination in part
on Bonilla’s testimony that when he entered Venezuela in September
2002, he would have been allowed to live there because he had “the
resident visa.”2 The agency focused on the following exchange
2
By resident visa, Bonilla was apparently referring to the
resident stamp in his passport.
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between a government attorney and Bonilla:
Q: Sir, were you allowed to live in Venezuela?
A: Yes, because I entered there as a businessman.
Q: And when you went in 2002 in September could you have
remained there and lived there at that time?
A: No, because the borderline is a very long wide line,
1200 kilometers and the people are switching from one
side to the other side.
Q: Legally, would you have been allowed to live there?
A: Yes, because I got the resident visa.
Q: And why didn’t you stay in Venezuela?
A: Because these people cross the border through the
mountain side and they come wherever you—they can find
you.
Although the agency cited this exchange as evidence that Bonilla
had an offer of permanent residence from Venezuela, we do not think
it clearly establishes this point. Bonilla stated that he could
have lived in Venezuela at the time he entered that country, i.e.,
in September 2002, prior to the expiration of his resident stamp.
His answers do not show that he had an offer to remain in that
country indefinitely.
The resident stamp in Bonilla’s passport, which Venezuela
honored several times when Bonilla traveled to Venezuela between
1997 and 2002, constitutes stronger evidence of an offer of
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permanent residence. In Salazar, we upheld a finding of firm
resettlement where the petitioner, a native and citizen of Peru,
had a Venezuelan passport with a resident stamp and had been
readmitted to Venezuela as a resident on two occasions. 359 F.3d
at 50-51. In the present case, however, Bonilla argues that
because his resident stamp expired in September 2002, it cannot
represent an offer of permanent resident status or permanent
resettlement. He asserts that because there is no evidence in the
record that he had the right to renew his resident stamp, the
government has not established that the mandatory bar applies.
As an initial matter, there is no evidence in the record that
Bonilla ever lived in Venezuela and it seems somewhat unusual to
conclude that someone has been “firmly resettled” in a country when
there is no evidence that he ever resided there. Indeed, in the
present case there is every indication that Bonilla maintained his
principal place of residence in Colombia until his departure in
October 2002. Many cases involving the firm resettlement bar to
asylum have involved petitioners who have resided for a substantial
period of time in a third country without receiving an official
offer of permanent residence, and courts have struggled to
determine whether the circumstances suggest that the petitioner had
an implicit offer of permanent refuge. See, e.g., Sall v.
Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per curiam) (adopting
“totality of the circumstances” approach to firm resettlement bar);
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Mussie v. INS, 172 F.3d 329, 331-32 (4th Cir. 1999) (finding that
the circumstances showed the petitioner had firmly resettled in
Germany despite the record’s silence as to whether she ever
received a formal offer of permanent residency); Farbakhsh v. INS,
20 F.3d 877, 882 (8th Cir. 1994) (finding firm resettlement despite
lack of formal refugee status where petitioner had lived in Spain
for over four years, initially intended to remain in Spain and his
brother and sister lived in Spain).
The present case represents the converse of these cases: we
are presented with a document that may represent a formal offer of
permanent residence, but there is no evidence in the record that
Bonilla ever lived in Venezuela. Of course, the regulation does
not require that the alien have lived in a country in order to be
firmly resettled. The regulation requires only that the alien have
been offered permanent refuge by a third country prior to entering
the United States in order for the mandatory bar to apply. This
makes sense when we consider the purpose of the firm resettlement
bar, which is to prevent “country shopping” and to preserve asylum
only for those applicants who do not have safe refuge elsewhere.
See Sall, 437 F.3d at 233 (explaining that the “underlying purpose
of asylum regulations—to provide refuge to desperate refugees who
reach our shores with nowhere else to turn—accords with reserving
the grant of asylum for those applicants without alternative places
of refuge abroad”). Despite the lack of evidence that Bonilla ever
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resided in Venezuela, he may be deemed firmly resettled in that
country if the resident stamp in his passport indicates that he
entered Venezuela with an offer of permanent residence prior to
entering the United States.
Bonilla argues that because his Venezuelan resident permit
expired on September 20, 2002—approximately one month before he
entered the United States—the agency erred when it found that he
had been firmly resettled prior to his arrival in the United
States. But the language of the regulation requires only that
“prior to arrival in the United States” an alien “enter[] into
another country with, or while in that country receive[], an offer
of permanent resident status, citizenship, or some other type of
permanent resettlement.” 8 C.F.R. § 208.15 (emphasis added). It
does not require that the alien have an offer of permanent
residence at the time he enters the United States. Bonilla entered
Venezuela in September 2002—prior to his entry into the United
States—with a resident stamp. If that stamp represented an offer
of permanent residence, he falls squarely within the scope of the
regulation.
On its face, the regulation clearly focuses on whether an
asylum applicant has received an offer of permanent resettlement.
See Maharaj v. Gonzales, 450 F.3d 961, 969 (9th Cir. 2006) (en
banc) (noting that “there must be evidence of an offer of
permanent, not temporary, residence in a third country”). The fact
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that Bonilla’s resident stamp expired suggests that it may not have
represented an offer of permanent refuge. Other courts have
concluded that the fact that an individual’s residence status may
expire under some circumstances is not necessarily evidence that it
does not represent an offer of permanent residence. In Abdalla,
the court held that a finding that the petitioner was firmly
resettled in another country was not “affected by the possibility
that by terminating his UAE residence permit (which expired upon
six months residence outside the UAE) petitioner may have
jeopardized his entitlement to resume residence in that country
through his extended (and illegal) stay in the United States.” 43
F.3d at 1400. In Vang v. INS, 146 F.3d 1114, 1116-17 (9th Cir.
1998), the court had concluded that a minor’s parents were firmly
resettled in France and that it was appropriate to attribute their
status to him. The court then rejected the petitioner’s argument
that because his French travel document had expired, creating the
possibility that France may forbid his return, he was not firmly
resettled in France. Id. at 1117. In Sultani, the petitioners had
received refugee status from Australia. They came to the United
States and renewed their Australian refugee status several times
before eventually allowing their status to lapse. The court
affirmed the agency’s determination that they were firmly resettled
in Australia prior to arriving in the United States, noting that
the Australian government had issued Certificates of Identity that
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indicated their refugee status and “permitted indefinite renewal of
that status.” 455 F.3d at 882. Because they had an offer of
permanent residence from Australia prior to their arrival in the
United States, the court concluded that “the possibility that the
Sultanis may not be permitted to return to Australia because they
allowed their status in that country to expire is irrelevant to the
finding that they were firmly resettled in Australia.” Id. at 883-
84; see also Ali, 237 F.3d at 595 (upholding agency finding of firm
resettlement in Denmark where petitioner was granted refugee status
by Denmark and received Danish passport and residence permit,
petitioner left Denmark for six years and, upon her return, learned
that her passport and refugee status had lapsed).
However, in the present case, we are confronted with the
question whether the resident stamp is sufficient to represent an
offer of permanent residence. We simply do not have evidence of
the significance of a five-year resident stamp from Venezuela. It
may be that renewing the resident stamp is an administrative
requirement as routine as renewing one’s passport, and that Bonilla
was entitled to maintain his resident status permanently as long as
he renewed it. If this is the case, then the firm resettlement bar
should apply. See, e.g., Elzour v. Ashcroft, 378 F.3d 1143, 1152
(10th Cir. 2004) (“If an alien who is entitled to permanent refuge
in another country turns his or her back on that country’s offer by
failing to take advantage of its procedures for obtaining relief,
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he or she is not generally eligible for asylum in the United
States.”). But we are left to speculate since the record does not
contain any information as to whether the resident stamp, valid for
five years, represented an offer of permanent residence.
Other courts confronted with ambiguous immigration documents
from third countries have remanded the case for further development
of the record. See Maharaj, 450 F.3d at 977 (remanding for further
investigation as “to whether Maharaj chose not to accept permanent
refuge to which he was entitled, or turned his back only on the
mere possibility of it”); Abdille v. Ashcroft, 242 F.3d 477, 490
(3d Cir. 2001) (remanding the case for further investigation of
South African law and practice to determine whether the grant of
refugee status for two years “amounted to an offer of some other
type of permanent resettlement”).
The course followed by these courts seems a prudent one in
light of the severe consequences of a finding that Bonilla had
firmly resettled. We note that in the present case, the IJ stated
that even if Bonilla were not barred by a finding of firm
resettlement, she did not believe that Bonilla had established a
well-founded fear of persecution, “that is, at least a 10 percent
chance that harm would actually be inflicted on him.” Although
Bonilla has not contested this alternative basis for denying his
asylum claim before this court, the BIA did not address the IJ’s
alternative ground for denying asylum. When the BIA does not
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consider an IJ’s alternative ground for denying relief, that ground
is not before us. INS v. Ventura, 537 U.S. 12, 123 S. Ct. 353, 154
L. Ed. 2d 272 (2002); Chahid Hayek v. Gonzales, 445 F.3d 501, 506
(1st Cir. 2006) (stating that we review the BIA’s decision and
portions of the IJ’s decision that have been adopted by the BIA);
Hernandez-Barrera, 373 F.3d at 20 n.9 (1st Cir. 2004) (refusing to
consider ground adopted by IJ where BIA did not decide that ground
but considered claim on the merits); Onsongo v. Gonzales, 457 F.3d
849, 852 n.4 (8th Cir. 2006).
Bonilla did not explicitly challenge the IJ’s alternative
finding before the BIA. In his notice of appeal, he presented a
brief challenge to the IJ’s decision, which included an assertion
that he and his wife “have a valid fear of future persecution”
should they return to Colombia. But the BIA decision suggests that
the Board discerned the scope of Bonilla’s appeal. The BIA
acknowledged that in his appeal, Bonilla contended that he had a
well-founded fear of persecution and that the IJ erred in denying
him relief. But the BIA did not make a finding as to the
reasonableness of the IJ’s alternative reason for denying Bonilla
asylum, focusing its discussion on the IJ’s conclusion that Bonilla
was firmly resettled in Venezuela prior to coming to the United
States. Its statement that it did not need to consider Bonilla’s
past persecution argument suggests that the Board did not feel
compelled to consider the merits of Bonilla’s asylum claim once it
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had determined that he satisfied the firmly resettled bar to
asylum. Even though the BIA concluded that Bonilla did not satisfy
the standard for withholding of removal, the standard for
establishing eligibility for asylum is a less stringent one. Tota
v. Gonzales, 457 F.3d 161, 165 (1st Cir. 2006) (noting that a
withholding of removal claim “places a more stringent burden of
proof on an alien than does a counterpart claim for asylum”)
(quoting Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir. 2005)).
And the agency’s implicit finding that Bonilla did not endure past
persecution does not foreclose the possibility that Bonilla could
establish eligibility for asylum based on future persecution.
Thus, the BIA could conclude that Bonilla has shown a well-founded
fear of persecution despite having failed to prevail on his
withholding of removal claim.
Although Bonilla’s appeal to the BIA was, to put it mildly,
short on analysis, we have treated asylum applicants’ arguments
before the BIA generously. Sunoto, 504 F.3d at 59. In this case,
Bonilla’s notice of appeal challenges the IJ’s finding that he did
not establish a “valid fear of future persecution” and it seems
appropriate to give the BIA the opportunity to consider whether
Bonilla has shown that he has a well-founded fear of persecution
rather than to affirm the denial of asylum on an alternative ground
that the BIA has not yet considered.
We thus remand for further proceedings consistent with this
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opinion. On remand, Bonilla and DHS should be afforded the
opportunity to supplement the record with evidence bearing on
whether the five-year resident stamp represents an offer of
permanent resettlement. We note that the government bears the
initial burden of showing that Venezuelan law supports application
of the firm resettlement bar. See Abdille, 242 F.3d at 491.3
III.
We conclude that the agency’s determination that Bonilla had
an offer of permanent residence in Venezuela lacks support. We
grant the petition and remand for investigation into the
significance of Bonilla’s five-year resident stamp under
Venezuelan law.
PETITION GRANTED.
3
In Salazar, we noted that some courts have held that the
government may make its initial showing by “ ‘non-offer-based
elements,’ such as the alien’s establishment of significant
familial or business ties or the prolonged duration of the alien’s
residence in the resettlement country without any government
efforts to deport him.” 359 F.3d at 50 n.4. The government here
argues that there was sufficient non-offer-based evidence to
support a conclusion that Bonilla had residency in Venezuela.
Specifically, it cites the agency’s finding that Bonilla owned a
business in Venezuela and maintained a bank account there. Without
deciding whether non-offer-based evidence can, in some cases, be
sufficient to support a firmly resettled finding, we note that the
evidence that the government cites falls short of what has been
held to satisfy the “totality of the circumstances” test that has
been used by other courts. See, e.g., Mussie 172 F.3d at 331-32
(petitioner lived in Germany for six years, received government
assistance for school, rent and food, held a job and paid taxes);
Farbakhsh, 20 F.3d at 882 (petitioner lived in Spain for four years
without fear of being sent back to Iran and his brother and sister
lived in Spain).
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