United States Court of Appeals For the First Circuit

No. 19-1165

JOSE ERNESTO MENJIVAR BONILLA,

Petitioner,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Respondent.

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

Before

Kayatta and Barron, Circuit Judges, Talwani,** District Judge.

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.

January 12, 2022

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the respondent. ** Of the District of Massachusetts, sitting by designation. 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

1 Section 235(b)(1) of the INA,

(b)(1), governs inspection and expedited removals of inadmissible noncitizens who have not been admitted or paroled into the United States. 2 Noncitizens who unlawfully reenter the United States are subject to reinstatement of their prior orders of removal.

(a)(5). 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.

- 2 - 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

- 3 - 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.

- 4 - 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,

(1st Cir. 2003)

(alterations in original) (quoting Gao v. Ashcroft,

(3d Cir. 2002)), "as if it were the decision of the BIA,"

Aguilar v. Gonzales,

(1st Cir. 2007).

Claims of legal error are reviewed "de novo, 'subject to

appropriate principles of administrative deference.'" Ordonez-

Quino v. Holder,

(1st Cir. 2014) (quoting Larios

v. Holder,

(1st Cir. 2010)).

Judicial review of the agency's factual determinations in

removal proceedings is "highly deferential." Nasrallah v. Barr,

- 5 -

(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.'"

(quoting

(b)(4)(B)). An

agency may not "'arbitrarily' reject an alien's evidence." Garland

v. Ming Dai,

, 1677 (2021) (quoting Dir., Off. of

Workers' Comp. Programs v. Greenwich Collieries,

(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."

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) if his "life or freedom would be threatened in

[the designated country of removal] . . . because of [his] race,

religion, nationality, membership in a particular social group, or

political opinion."

(b)(3)(A). The noncitizen may

meet this burden by showing either that he suffered past

persecution, which gives rise to a rebuttable presumption of future

persecution, or that a clear probability of future persecution

independently exists should the applicant be removed to the

designated country. Arevalo-Giron v. Holder,

(1st

Cir. 2012). CAT relief, on the other hand, requires a noncitizen

establish "that it is more likely than not that he or she would be

- 6 - tortured if removed to the proposed country of removal."

(c)(2).

Under the REAL ID Act, an applicant's testimony alone "may be

sufficient to sustain the applicant's burden without

corroboration, but only if the applicant satisfies the trier of

fact that the applicant's testimony is credible, is persuasive,

and refers to specific facts sufficient to demonstrate that the

applicant is a refugee."

(b)(1)(B)(ii). In

conducting this inquiry, "the trier of fact may weigh the credible

testimony along with other evidence of record."

The statute also addresses an IJ's authority and

responsibility to evaluate an applicant's credibility:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

§ 1158(b)(1)(B)(iii).

B. The 2012 Record

In assessing Bonilla's credibility, the IJ pointed to

discrepancies between Bonilla's hearing testimony and the 2012

- 7 - Record. The IJ noted that the 2012 Record "indicate[d] [that

Bonilla] was specifically questioned" about having any concerns

about returning to his home country, to which Bonilla reportedly

answered "that "he had no fear of return, that he came to the

United States to work," and that Bonilla "sign[ed] a statement to

that effect." Relying on this court's decision in Muñoz-Monsalve

v. Mukasey,

(1st Cir. 2008), the IJ noted that "under

circumstances where the respondent 'has told different tales at

different times,'. . . an immigration judge is entitled to 'sharply

discount a petitioner's testimony.'" The IJ concluded that "in

the absence of clear evidence that the [immigration] officials

improperly discharge[d] their duties," Bonilla's testimony was

"significantly undercut" by his "lack of a claim of fear or torture

should he return to El Salvador when he was first encountered in

2012."

In his petition for review, Bonilla asserts that the IJ's

reliance on the 2012 Record was improper. 3 "Strict rules of

3 The government argues that Bonilla's due process claim must be dismissed because he did not argue before the BIA that the IJ's actions violated his due process rights. A court of appeals may review a final order of the BIA "only if . . . the alien has exhausted all administrative remedies available to the alien as of right."

(d)(1). This also requires issue exhaustion before the BIA. See Sanabria Morales v. Barr,

(1st Cir. 2020) ("[W]e may not entertain arguments not made to the BIA, which 'fail[] for lack of exhaustion'") (second alteration in original) (quoting Molina De Massenet v. Gonzales,

(1st Cir. 2007))). Although now framed as a due process challenge, Bonilla's claim regarding the IJ's - 8 - evidence do not apply to immigration proceedings" and "[i]t is

normally enough if the IJ reasonably finds a proffered piece of

evidence to be reliable and its use to be fundamentally fair."

Jianli Chen v. Holder,

(1st Cir. 2012). Even under

this deferential standard, however, the IJ erred in finding

"sufficient indicia that the [2012 Record] is reliable."

In Jianli Chen, the IJ's finding that the form in question

was "sufficiently reliable on [its] face was supported by the

record."

That is not the case here.

The 2012 Record is identified as the signed statement by

"Ernesto Bonilla-Mentivar AKA: Menjivar, Jose Victor," with the

pages initialed "EMB." But the questions and answers reported in

the document do not match that name. Instead, the following is

reported:

Q: What is your true and correct name? A: Jose Ramos Ibarra. Q: Have you ever used any other name? A: No.

According to the 2012 Record, the interviewee also reported a

different birthdate then that sworn to by Bonilla at the hearing

(May 29 instead of March 29) and a different date of entry (March

2012 instead of August 2012).

The IJ rejected these concerns. The IJ noted that Bonilla

consideration of the 2012 Record is fundamentally a challenge to the IJ's evidentiary rulings, which he raised below.

- 9 - "testified initially on cross-examination when asked who Jose

Ramos-Ibarra . . . was that this was a coworker that was doing the

same type of work as the respondent," and from this inferred that

Bonilla "used this alias in August of 2012."4 The IJ stated further

that Bonilla later "backtracked in his testimony indicating that

he did not understand the question," but that Bonilla "otherwise

admitted to signing the statement."

But, Bonilla's 2018 testimony does not provide substantial

evidence that the 2012 Record was reliable, given that the 2012

Record reports simultaneously that the person who signed it

"Bonilla" and initialed it "EMB" states that his true name is Jose

Ramos Ibarra and that he had never gone by any other name.

In addition, the 2012 Record also included another seeming

irregularity, which the IJ failed to address. The 2012 Record

reports that Bonilla stated that his most recent entry was in March

2012, and that he entered "by "walking through the desert near

4 The testimony does not support the latter statement. Bonilla was asked about his use of the alias in the following exchanges: Q. "Well, sir, didn't you previously use that alias when you entered the United States on August 2012?" A. "No." Q. "Well, sir, the name that you provided to them when they asked you your identity was Jose Ramos Ibarra. Do you remember using that alias?" A. "I had never heard the name."

- 10 - Sasabe, Arizona." But, the 2012 Record itself is dated many months

later, in August 2012, with no explanation for the substantial gap

in time between the reported entry and the interview documented by

the 2012 Record.5 The IJ made no finding about this seeming

inconsistency when assessing whether the 2012 Record was reliable.

Further compounding the concern that the 2012 Record is not

reliable is the discrepancy between what Bonilla testified in 2018

is his birthdate and the reported birthdate in the 2012 Record.

The IJ found no issue with the birthdate, asserting that Bonilla

confirmed at the 2018 hearing that it was "correctly indicated" as

May 29, despite the transcript showing Bonilla repeatedly

testifying that his birthdate was March 29, not May 29.

Bonilla did admit that he was placed under oath and that he

signed the document. The paragraph above his signature line states

that he read the statement or had it read to him. The border

patrol agent also attested on the document that Bonilla signed the

document. Unlike in Jianli Chen, however, where the form was

"compiled with the aid of a telephonic interpreter,"

, here no telephonic interpreter was used, and instead, the

border patrol agent himself conducted the interview in Spanish.

5In 2012, noncitizens who had been physically present in the U.S. for a continuous period of more than fourteen days immediately prior to the date of the encounter with DHS were not eligible for expedited removal. See Designating Aliens for Expedited Removal,

(Aug. 11, 2004).

- 11 - Moreover, there is no affirmation, by either Bonilla or the border

patrol agent, that the answers set forth in English in the 2012

Record were read back to Bonilla in Spanish before he initialed

and signed the document.

In light of the unexplained irregularities in the 2012 Record

-- including signing off both to another name and to the statement

that no other name has been used), the entry date, and the

birthdate -- we cannot uphold the IJ's determination that the 2012

Record is supported by sufficient indicia of reliability to be

used in assessing Bonilla's credibility.

C. Remand

From this finding it does not necessarily follow that Bonilla

is entitled to relief. First, even without the 2012 Record, the

factfinder may still conclude on the remaining record that

Bonilla's testimony lacked credibility and should be given limited

weight. Moreover, IJs can require corroboration without making an

adverse credibility determination. Balachandran v. Holder,

(1st. Cir. 2009) (citing

(b)(1)(B)(ii)). And even assuming that Bonilla's testimony

was credible, the IJ must still find, based on the evidence, that

Bonilla "suffered past persecution" or that "a clear probability

of future persecution" exists because of his political

affiliation. Arevalo-Giron,

.

Nonetheless, because the IJ's assessments of Bonilla's

- 12 - credibility and the decision to require corroborating evidence

were based in significant part on discrepancies with the 2012

Record, which we have determined to be unreliable, further

factfinding is required. See Mboowa v. Lynch,

(1st Cir. 2015) (finding remand warranted where a central aspect

of the agency's credibility assessment is flawed). Accordingly,

we remand to the agency for further factfinding. Guta-Tolossa v.

Holder,

(1st Cir. 2011) ("Where a question is best

resolved by the agency in the first instance, or is left primarily

in the agency's hands by statute, and the agency has failed to

address that question, we generally must remand."); see also Kho

v. Keisler,

(1st Cir. 2007) ("If, in the absence

of a credibility finding by the IJ, a reviewing court determines

that such a finding is necessary for effective review of the case,

it may remand to the agency for further factfinding.").

Accordingly, we vacate the denials of withholding and relief under

the CAT and remand for further consideration consistent with this

opinion.

- 13 -