Bonilla v. Mukasey

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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