Bonilla v. Mukasey, (1st Cir. August 25, 2008)

The government bears the initial burden of showing firm resettlement. In the present case, we are confronted with the question of whether the resident stamp in Petitioner's passport is sufficient to represent an offer of permanent residence. We simply do not have evidence of the significance of a five-year residence stamp from Venezuela. It seems prudent to remand the case in light of the severe consequences in finding Petitioner had been firmly resettled.

Petitioner, a citizen of Colombia, sought asylum, withholding of removal and Convention Against Torture (CAT) relief on the basis that he had received a number of threatening phone calls and a threatening letter from the Revolutionary Armed Forces of Colombia (FARC) because he and his family supported the Liberal Party candidate in the presidential election. After receiving these threats, Petitioner had traveled to Venezuela using a five-year resident stamp in his passport. Petitioner testified that he traveled to Venezuela in the past on business because he owned a cattle farm there. He sold the farm on his last visit there in 2002. He then returned to Colombia and filed a complaint with the district attorney in which he reported the threats he and his family had received. Petitioner and his wife then fled to the United States.

The immigration judge denied all relief. The IJ concluded that Petitioner was ineligible for asylum because he had been firmly resettled in Venezuela prior to entering the United States. The IJ also found that even if Petitioner were eligible for asylum, he failed to establish a well-founded fear of persecution in Colombia. The IJ held that Petitioner was not eligible for withholding of removal, finding the evidence of past threats did not establish a likelihood of future persecution by the FARC. As to CAT relief, the IJ held that Petitioner failed to show that he would be subjected to torture should he return to Colombia or that the Colombian government would inflict or acquiesce to the torture. The BIA affirmed the IJ's decision upholding the IJ's finding that Petitioner had been firmly resettled in Venezuela and was ineligible for withholding of removal.

On review, the First Circuit rejected Petitioner's argument that the IJ failed to determine whether he had suffered past persecution. The court, after reviewing the record and the IJ's statements, held that although the statements did not represent an express finding that Petitioner did not suffer past persecution, it was evident from the IJ's opinion that she considered the evidence and concluded that Petitioner's past experience did not amount to persecution. The court also upheld the agency's conclusion that Petitioner had not suffered past persecution. The court noted that threats alone constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant, actual suffering or harm, citing Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008). The court held that in the present case it could not find that the agency was compelled to find that Petitioner was persecuted, noting that neither Petitioner nor any member of his family was ever approached by the FARC. The court, therefore, affirmed the BIA's denial of withholding of removal.

On the issue of firm resettlement, the court stated that the government bears the initial burden of showing firm resettlement and that if the government meets the burden, a presumption of firm resettlement arises. The applicant can rebut this presumption by showing by a preponderance of the evidence that the bar to asylum does not apply. Although Petitioner testified that he was allowed to live in Venezuela because he was a businessman there, the court stated that his testimony did not show that he had an offer to remain in the country indefinitely. The court also stated that there was no evidence in the record that Petitioner ever lived in Venezuela so it would be unusual to conclude that Petitioner had been firmly resettled there. The court conceded, however, that he may be deemed to have been firmly resettled there if the residence stamp in his passport indicates that he entered Venezuela with an offer of permanent residence.

The court rejected Petitioner's argument that he was not firmly resettled because when he entered the United States, his Venezuelan had expired one month before. The court noted that the language of the regulation, 8 CFR §208.15, does not require that an applicant have an offer of permanent residence at the time he enters the United States. The court then looked to the question of whether the residence stamp in Petitioner's passport represented an offer of permanent residence. The court found that it did not have enough evidence of the significance of the five-year residence stamp and that a prudent course, in light of the possible severe consequences to Petitioner, was to remand the case.

The court found that the BIA failed to address the IJ's alternate ground for denying asylum, namely that Petitioner lacked a well-founded fear. The court noted that although the agency found that Petitioner did not establish past persecution, that finding did not foreclose that Petitioner could establish eligibility for asylum based on a well-founded fear.

The granted the petition for review.