Bonilla v. Mukasey

• Citation: 539 F.3d 72
• Decision Date: 25 August 2008
• Docket Number: No. 07-1813.,07-1813.
• Parties: Luis Ernesto BONILLA and Judith Teresa Mercado, Petitioners, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

539 F.3d 72

Luis Ernesto BONILLA and Judith Teresa Mercado, Petitioners, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 07-1813.

United States Court of Appeals, First Circuit.

Submitted April 9, 2008.

Decided August 25, 2008.

Carlos E. Estrada, on brief for petitioners.

Jeffrey S. Bucholtz, Linda S. Wernery, and Dimitri N. Rocha on brief for respondent.

Before TORRUELLA, CUDAHY,^** and LIPEZ, Circuit Judges.

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 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 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 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

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 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 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...