Ibanez Bonilla v. Attorney General

427 F. App'x 204
CourtCourt of Appeals for the Third Circuit
DecidedMay 10, 2011
Docket08-4025
StatusUnpublished

This text of 427 F. App'x 204 (Ibanez Bonilla v. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ibanez Bonilla v. Attorney General, 427 F. App'x 204 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Carlos Andres Ibanez Bonilla, a citizen of Colombia, entered the United States in December 2003 as a visitor. He affirmatively sought asylum, withholding, and protection under the Convention Against Torture. The Government charged him as removable for overstaying his visa, which he conceded. The Immigration Judge (“IJ”) denied Ibanez Bonilla’s applications for relief. She made an adverse credibility finding on the basis that the police report offered by Ibanez Bonilla conflicted with his testimony, and ruled in the alternative that he was not entitled to relief from removal even if he had testified credibly.

Ibanez Bonilla appealed to the Board of Immigration Appeals (“BIA”), primarily arguing that he met the standard for asylum based on his experiences in Colombia (he also mentioned that he was entitled to withholding and CAT relief). In addition, he stated that the source of the denial of his claim was what the IJ perceived as inconsistencies between a police report and details in his testimony. He attempted to excuse any memory lapses on his relative youth at the time of the incidents (he was 20 years old) and the effects of fear on memory. The BIA dismissed the appeal, holding that even if it assumed that Ibanez Bonilla’s testimony was true, the IJ did not err in determining that Ibanez Bonilla failed to meet his burdens of proof for asylum and withholding and that he was ineligible for CAT relief.

Ibanez Bonilla presents a petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, like an adverse credibility determination, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). However, we will not consider issues not exhausted before the BIA. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir.2005).

Ibanez Bonilla presents three issues in his petition. He argues that the IJ used the wrong standard in determining wheth *206 er he was entitled to asylum and contends that he is entitled to asylum under the proper standard. He also maintains that the IJ erred in ruling that his testimony was not credible because of inconsistencies between his testimony and the police report he submitted. Lastly, Ibanez Bonilla takes issue with the form of the BIA’s opinion, stating that it is not a “real opinion” because it “merely reflects the judgment of the [IJ] and does not provide any analysis.” Pet. Brief 13. He asks us to focus our review on the IJ’s opinion.

In response, the Government asks us to dismiss Ibanez Bonilla’s petition for lack of jurisdiction on the basis that he did not raise the arguments in his appeal before the BIA. Alternatively, the Government contends that substantial evidence supports the conclusion that Ibanez Bonilla did not meet his burdens of proof for asylum, withholding, or CAT relief.

We reject the Government’s invitation to dismiss the petition in its entirety. Taking Ibanez Bonilla’s claims out of order, we note that the third claim, which is about the form of the BIA’s final ruling, could not have been presented to the BIA in his brief on appeal. Because exhaustion was not available to him on that claim, we may consider it. See Bonhometre, 414 F.3d at 447-48. We deny the claim as without merit. The form of the BIA’s decision is unexceptional, by which we mean that it reads as a “real opinion” with sufficient analysis show that it reviewed the record and that it considered Ibanez Bonilla’s arguments before the IJ and on appeal. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.2002) (noting that the BIA “ ‘is not required to write an exegesis on every contention’ ”) (citation omitted). Ibanez Bonilla need not be concerned that we will ignore the IJ’s decision to the extent it is relevant. Where the BIA relies in part on the IJ’s reasoning, we review both decisions. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).

In relation to the IJ’s ruling, Ibanez Bonilla assigns error to a ruling that his testimony was not credible because of inconsistencies between his testimony and the police report he submitted. It is not entirely clear whether he challenged the IJ’s adverse credibility finding in the BIA, although he did address the finding that there were inconsistencies between a police report and details in his testimony in his brief and offered excuses for any discrepancies. Even if he raised a challenge to the credibility finding, however, his challenge is irrelevant here. In reviewing an agency’s determination, we “approve or reject the agency’s action purely on the basis of the reasons offered by ... the agency itself.” See Berishaj v. Ashcroft, 378 F.3d 314, 330 (3d Cir.2004) (citing SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). The BIA did not reject his claim based on the credibility finding; it assumed that his testimony was true and based its ruling on his failure to meet the burdens of proof for relief from removal. R. 2 (“Even assuming the veracity of the respondent’s testimony, we find no error in the Immigration Judge’s determination that the respondent failed to meet the burdens of proof....”)

Lastly we consider whether Ibanez Bonilla was entitled to asylum under the proper standard, an argument that he presented to the BIA. 1 Upon review, we conclude that the BIA did not err when it ruled that the IJ committed no error in concluding that Ibanez Bonilla had not shown past *207 persecution or a well-founded fear of future persecution.

Putting aside any inconsistency between his testimony and the police report he provided, and assuming that his claim is truth, in March 2003, two members of the Revolutionary Armed Forces of Colombia (“FARC”), approached him. R. 592. Recognizing Ibanez Bonilla from his involvement in “recreational issues” and marches against kidnapping, terrorism, and drug addiction, the FARC members sought his help in recruiting new members. Id. They told him that he would be rewarded well for his assistance; they also reminded him of what happened to his friend, a police officer who had been killed because he did not follow FARC orders. Id. Initially, Ibanez Bonilla told them he would help. Id. at 593.

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427 F. App'x 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ibanez-bonilla-v-attorney-general-ca3-2011.