Bonilla v. Garland, 011222 FED1, 19-1165

Docket Nº19-1165
Opinion JudgeTALWANI, District Judge.
Party NameJOSE ERNESTO MENJIVAR BONILLA, Petitioner, v. MERRICK B. GARLAND, [*]UNITED STATES ATTORNEY GENERAL, Respondent.
AttorneyRachel L. Rado, for petitioner. Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, Civil Division, ...
Judge PanelBefore Kayatta and Barron, Circuit Judges, Talwani, District Judge.
Case DateJanuary 12, 2022
CourtUnited States Courts of Appeals, United States Court of Appeals (1st Circuit)

JOSE ERNESTO MENJIVAR BONILLA, Petitioner,

v.

MERRICK B. GARLAND, [*]UNITED STATES ATTORNEY GENERAL, Respondent.

No. 19-1165

United States Court of Appeals, First Circuit

January 12, 2022

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

Rachel L. Rado, for petitioner.

Jessica A. Dawgert, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, and Melissa Neiman-Kelting, Assistant Director, Office of Immigration Litigation, Civil Division, were on brief, for respondent.

Before Kayatta and Barron, Circuit Judges, Talwani, [**] District Judge.

TALWANI, District Judge.

Jose Ernesto Menjivar Bonilla, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his application for withholding of removal under Immigration and Nationality Act ("INA") Section 241(b)(3) and relief under Article 3 of the United Nations Convention Against Torture ("CAT"). We grant the petition in part and remand for further proceedings.

I. Background

On August 24, 2012, a border patrol agent from the Department of Homeland Security ("DHS") apprehended Bonilla near the Mexican border. The border patrol agent prepared, and Bonilla signed, a "Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act"1 ("2012 Record") stating that Bonilla did not fear being returned to his home country or country of last residence and would not be harmed if he was returned. Bonilla was then removed by DHS under an expedited removal order.

Bonilla returned to the United States. In 2018, DHS detained him and sought to reinstate the prior removal order.[2] However, an asylum officer interviewed Bonilla and found that he had a

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reasonable fear of persecution or torture upon his return to El Salvador. Bonilla, now represented by counsel, filed an application for withholding of removal and relief under the CAT, and his case was referred to an Immigration Judge ("IJ") for withholding-only proceedings.

During the proceedings before the IJ, Bonilla testified that, while in El Salvador, he belonged to a conservative political party, the Nationalist Republican Alliance ("ARENA"), which had been in power for more than twenty years. He stated that, before 2009, he had a business selling clothing and food, and he also operated a taxi business. He received political support from ARENA, including the permits necessary to run the taxi business. Bonilla also testified that he became actively involved in ARENA's political activities, such as organizing voter drives and political marches.

In 2009, ARENA's political opponent, the Farabundo Martí National Liberation Front ("FMLN") won the presidency in El Salvador. Bonilla testified that, thereafter, individuals associated with FMLN replaced the local officials with whom he had been familiar and began to harass him. He stated that FMLN officials arbitrarily issued him tickets -- sometimes as many as five a day -- and threatened to take away his taxi business. Ultimately, in 2011, the FMLN government refused to renew his license to operate the business.

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Bonilla also testified that, beginning in 2010 or 2011, his seven-year-old son experienced constant fevers and headaches. Bonilla stated that individuals associated with the local hospitals denied his son medical care because of Bonilla's association with ARENA. Bonilla testified that he did not report these incidents to the police because he believed the police had authorized the discrimination against him and his family.

Bonilla testified that in January 2012, police officers arrived at his home in the middle of the night and asked him if one of his cabs had been involved in an accident. Bonilla stated that when he went to look at the cab, he discovered that the police officers had covered it in blood. The officers then told him that he would have to start making "special trips" for them. Bonilla testified that a few months later, in June 2012, four police officers approached him and ordered him to transport weapons for them. Bonilla refused, and the officers told him that he was endangering his family members' lives.

Bonilla testified further that in July 2012, while he was waiting for a customer at a bus stop, someone came out of a car and pointed a gun at his head. The gun failed to fire, and the assailant hit Bonilla on the left side of his head with a machete. Bonilla left town to seek medical attention at a private clinic because he was worried that he would not be treated properly if he went to the local public hospital. Bonilla received ten stitches

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on the left side of his head and three stiches on his lip. Bonilla testified that he still has a scar above his left ear, and he showed it to the IJ. Bonilla testified that he did not report the assault for fear of reprisal and that he never learned the identity of the assailant. He stated that it was after this incident, in August 2012, that he first fled to the United States.

Finally, Bonilla testified that when he was interviewed by the border patrol agent in 2012, he was not asked about whether he had any fear of returning to El Salvador. In addition to his testimony, Bonilla introduced several pieces of documentary evidence in support of his claims for humanitarian relief.

As recounted in the IJ's decision denying the petition, the IJ "d[id] not enter an explicit adverse credibility finding," but "ha[d] serious doubt with respect to [Bonilla's] credibility" and found that "these credibility issues . . . affect[ed] [Bonilla's] ability to establish his burden of proof[.]" The IJ noted "several instances in [Bonilla's] testimony when compared to the documents of record, as well as to other statements made, that give the court serious pause as to the credibility of his statements." The IJ found that Bonilla's testimony "[wa]s significantly undercut with his lack of a claim of fear of harm or torture should he return to El Salvador when he was first encountered in 2012." Based on these issues, the IJ concluded that Bonilla's testimony was entitled to "limited weight" and corroboration was required.

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The IJ found further that Bonilla had not produced corroborating evidence; that this failure to provide corroborating evidence was "fatal to his claim for relief"; and that Bonilla had not shown that he was likely to suffer future persecution on account of his membership with ARENA. Accordingly, the IJ denied Bonilla's applications for withholding of removal and relief under the CAT.

The BIA summarily affirmed the IJ's decision without opinion. This petition for judicial review followed.

II. Standard of Review

"Ordinarily, Courts of Appeals review decisions of the [BIA], and not those of an IJ. When the BIA does not render its own opinion, however, and either defers [to] or adopts the opinion of the IJ, a Court of Appeals must then review the decision of the IJ," Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) (alterations in original) (quoting Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)), "as if it were the decision of the BIA," Aguilar v. Gonzales, 475 F.3d 415, 417 (1st Cir. 2007).

Claims of legal error are reviewed "de novo, 'subject to appropriate principles of administrative deference.'" Ordonez-Quino v. Holder, 760 F.3d 80, 87 (1st Cir. 2014) (quoting Larios v. Holder, 608 F.3d 105, 107 (1st Cir. 2010)).

Judicial review of the agency's factual determinations in removal proceedings is "highly deferential." Nasrallah v. Barr,

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140 S.Ct. 1683, 1692 (2020) (applying the standard in context of CAT proceedings). "The agency's 'findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). An agency may not "'arbitrarily' reject an alien's evidence." Garland v. Ming Dai, 141 S.Ct. 1669, 1677 (2021) (quoting Dir., Off. of Workers' Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 279 (1994)). But the agency, "like any reasonable factfinder," is free to accept "all, none, or some of the alien's testimony; its reasonable findings may not be disturbed." Id.

III. Discussion

A. Withholding of Removal Under INA Section 241(b)(3) and CAT

A noncitizen is entitled to withholding of removal under INA Section 241(b)(3)...

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