Twum v. Barr , 930 F.3d 10 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1992
JENNIFER AMPOFOWAH TWUM,
Petitioner,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl, and Thompson,
Circuit Judges.
Evaristus Nkongchu and African Legal Concierge, PLLC, on
brief for petitioner.
Elizabeth R. Chapman, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, and Russell J.E. Verby, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, on brief for respondent.
July 9, 2019
STAHL, Circuit Judge. Petitioner Jennifer Ampofowah
Twum, a native and citizen of Ghana, asks us to review an order
from the Board of Immigration Appeals ("BIA") denying her motion
to reopen removal proceedings. Twum petitioned the BIA to reopen
so that she could apply for cancellation of removal under the
"special rule" for battered spouses and children, asylum,
withholding of removal, and protection under the Convention
Against Torture ("CAT"). She now alleges that the BIA erred in
denying the motion on each of those grounds. After careful review,
we conclude that we are without jurisdiction to review the BIA's
denial of "special rule" cancellation. With respect to the latter
three claims, however, we find it appropriate to grant the petition
and remand to the BIA for further proceedings consistent with this
opinion.
I.
Twum entered the United States on a J-2 visa as a
nonimmigrant spouse of an exchange visitor on or about August 10,
2001. The "exchange visitor" in question was her then-husband,
Clement Asumadu-Baffi, whose arrival proceeded Twum's. According
to Twum, she was forced to marry Asumadu-Baffi in Ghana when she
was fifteen, and he subjected her to physical, mental, and sexual
abuse both in Ghana and after their reunion in the United States.
At some point in 2001 or 2002, Twum fled from the marital home in
Cleveland, Ohio to Worcester, Massachusetts. She filed for
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divorce, which was finalized in February 2002. Twum avers that
Asumadu-Baffi continued to threaten her after (and because of)
their divorce, stating that he would retake her as his wife or
kill her if she ever returned to Ghana.
After moving to Worcester, Twum began a romantic
relationship with another Ghanaian, with whom she had two daughters
in 2004 and 2007, respectively.1 She also met and, in June 2007,
married Robert Tolson, a United States citizen.
Twum's divorce from Asumadu-Baffi terminated her
nonimmigrant status and, on September 22, 2006, the Department of
Homeland Security ("DHS") filed a Notice to Appear (the "Notice")
charging Twum with removability for remaining in the United States
beyond the term of her visa. Through counsel, Twum admitted all
of the factual allegations in the Notice and conceded removability
at a hearing held on January 9, 2007. Proceedings were continued
from that date until June 12, 2007, at which point Twum appeared
with a second counsel. One week later, on June 19, 2007, Twum
submitted supplemental pleadings and requested relief in several
forms, to wit: withholding of removal, asylum, adjustment of
status, protection under the CAT, cancellation of removal, and
voluntary departure.
1 Twum also has two daughters, both born in Ghana, from her
marriage to Asumadu-Baffi. Those daughters moved from Ghana to
the United Kingdom, and it does not appear that they ever resided
with Twum in the United States.
- 3 -
After her second marriage, Twum sought and received a
continuance of the immigration proceedings to await decision on
Tolson's then-pending I-130 Petition for Alien Relative to adjust
her immigration status based on marriage. In response to that
petition, DHS requested documentation evincing Twum's divorce.2
Neither the couple nor Twum's then-attorney, Ainsworth Jones,
responded to DHS's request and, as a result, DHS denied the
petition on November 5, 2008. Tolson and Twum refiled the petition
shortly thereafter and again sought a continuance; however, the
immigration judge ("IJ") denied the motion on February 3, 2009.
In the same ruling, the IJ determined that Twum had abandoned her
claims for asylum, withholding, and CAT-based relief as of
October 16, 2007, had withdrawn her claim for voluntary departure,
and could not pursue cancellation of removal based on insufficient
time of residency in the United States. As a result, the IJ
ordered Twum removed.
Despite that order, DHS subsequently approved Tolson's
second I-130 petition, and Twum moved to reopen the removal
proceedings to pursue adjustment of her status. Twum based her
motion to reopen both on DHS's approval of the I-130 as well as on
2 It is unclear from the record whether DHS sought evidence
of Twum's divorce from Asumadu-Baffi or from the father of her
American daughters, who Twum had listed on certain immigration
paperwork as her spouse but evidently never married.
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claimed ineffective assistance by Jones, her prior attorney. The
IJ granted the motion to reopen on April 1, 2010.3
In response to Twum's ineffective assistance of counsel
charge against him, Jones provided DHS with evidence4 that undercut
Tolson's second I-130 petition. After review of that submission
and further information provided by the couple, DHS concluded that
Twum and Tolson failed to demonstrate by clear and convincing
evidence that they entered into their marriage in good faith,
rather than for an immigration benefit. DHS revoked its previous
approval of Twum's I-130 on March 3, 2011, again placing her in
jeopardy of deportation due to the loss of the marriage benefit.
Following that revocation, on March 30, 2011, the IJ denied Twum's
application for adjustment of status and motion to further continue
the proceedings, and again ordered her removal to Ghana. Twum
appealed to the BIA, which affirmed the IJ's removal order on March
29, 2012.
The removal order notwithstanding, Twum did not depart
the country. At the same time, Twum states that her marriage with
Tolson was failing and, in 2015, she filed for divorce. In an
3 The IJ denied without prejudice Twum's initial motion to
reopen on June 25, 2009, roughly one month before DHS approved
Tolson's I-130 petition.
4 Neither the precise nature of the evidence nor Jones's
motivation for providing such evidence to DHS are evident from
this record.
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affidavit submitted with her present motion to reopen, Twum states
that Tolson began leaving home without explanation and using drugs
during those absences. During one such absence, she alleges that
Tolson was arrested for robbery, after which point he became
physically abusive and threatened to kill her on multiple
occasions.
On March 26, 2018,5 Twum filed a motion to reopen
proceedings and stay removal. The impetus for her motion was
three-fold, as she sought to apply for cancellation of removal
under the special rule for battered spouses of United States
citizens under 8 U.S.C. § 1229b(b)(2), asylum and withholding of
removal under 8 U.S.C. §§ 1158, 1241(b)(3), and protection under
the CAT under 8 C.F.R. §§ 1208.16-1208.18. In support of her
application, Twum filed a statement asserting that removal to Ghana
would expose both Twum and her two U.S. citizen daughters to
"exceptional and extremely unusual hardship." In particular, she
pointed to, inter alia, the need to remove her young daughters
(then fourteen and eleven years old) from school and into a foreign
culture and the purported risk that they will be subject to female
genital mutilation ("FGM") and/or face unusual security risks due
5 Twum previously filed the same motion on March 15, 2018,
but that filing was rejected for failure to pay or seek waiver of
the required filing fee.
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to their American citizenship.6 She also filed an affidavit
attesting to her fear that she would face severe physical violence
from Asumadu-Baffi if she were to return to Ghana.
The BIA denied the motion to reopen on September 13,
2018. After noting that the motion was untimely, the BIA found
that Twum failed to demonstrate her eligibility for an exception
to the applicable time limitations. In particular, the BIA
concluded that she failed to demonstrate the necessary predicates
for either a timeliness waiver or relief under the special rule
for battered spouses and, separately, that she did not adequately
demonstrate "changed country conditions" that could provide a
basis for making an otherwise-belated asylum claim. Finally, the
Board declined to exercise its discretionary authority to order
sua sponte reopening under 8 C.F.R. § 1003.2(a).
This timely appeal followed.
II.
On appeal, Twum contends that the BIA's order denying
her motion to reopen erred in two regards. First, she argues that
she amply demonstrated her eligibility for a timeliness waiver and
relief based on the special rule for battered spouses and that the
6
Twum alleges that, before leaving Ghana, she narrowly
escaped two attempts to subject her to FGM, both undertaken at
Asumadu-Baffi's insistence. In addition, her motion to reopen
included several appended reports and articles concerning FGM
practices and trends in Ghana.
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BIA's decision to the contrary is unsupportable on the record.
Second, Twum contends that she made a sufficient demonstration of
both "changed country conditions" within Ghana and her substantive
entitlement to asylum, withholding of removal, and CAT-based
relief to merit reopening on those grounds.7 We consider these
arguments in turn.
A. Special Rule Cancellation of Removal for Battered Spouses
Under the "special rule for battered spouse[s] or
child[ren]," the Attorney General may cancel the removal of an
otherwise deportable alien who demonstrates, inter alia, that he
or she has been "battered or subjected to extreme cruelty by a
spouse or parent who is or was a United States citizen" or a
"lawful permanent resident." 8 U.S.C. § 1229b(b)(2)(A)(i)-(ii).
A separate section of the statute extends the period for filing
motions to reopen based on the special rule, allowing one year
7
In her reply brief, Twum asserts in passing that our review
should also encompass the BIA's March 29, 2012, order of removal.
In this regard, she is mistaken. The time to review the order of
removal has long since passed, 8 U.S.C. § 1252(b)(1), and a motion
to reopen does not serve as a vehicle for reinvestigating the
merits of the underlying decision, see Zhang v. I.N.S., 348 F.3d
289, 292 (1st Cir. 2003) ("[B]ecause [petitioner] appealed the
BIA's . . . denial of asylum well over the thirty-day limit, we
lack jurisdiction to review the underlying denial.").
For its part, the Government contends that we lack
jurisdiction to consider the BIA's discretionary decision to deny
sua sponte reopening. We need not consider that issue, however,
as Twum does not present any challenge to that ground for denying
reopening. See Xiao He Chen v. Lynch, 825 F.3d 83, 89 n.5 (1st
Cir. 2016).
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from the final entry of the order of removal as a matter of course
and further permitting that "the Attorney General may, in the
Attorney General's discretion, waive [the one-year] time
limitation in the case of an alien who demonstrates extraordinary
circumstances or extreme hardship to the alien's child." Id.
§ 1229a(c)(7)(C)(iv)(III).
Careful readers will note that these statutory sections
implicate not one but two levels of discretion: the Attorney
General is given discretion to extend the time to file for
reopening based on the special rule and also to cancel the removal
of an alien who demonstrates his or her eligibility under that
rule. The Government argues that this discretionary power strips
us of jurisdiction to entertain Twum's arguments, pointing to
8 U.S.C. § 1252(a)(2)(B), which states:
[N]o court shall have jurisdiction to review
. . .
(i) any judgment regarding the granting of
relief under section . . . 1229b of this title,
or
(ii) any [] decision or action of the Attorney
General . . . the authority for which is
specified under this subchapter[8] to be in the
discretion of the Attorney General . . . .
There are exceptions only for "constitutional claims or questions
of law." Id. § 1252(a)(2)(D).
8
The "subchapter" in question is Title 8, Chapter 12,
Subchapter II of the U.S. Code, which includes the timeliness
waiver in 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).
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It is evident without question that the statute leaves
final determination on whether to grant timeliness waivers and
cancellation of removal to the Attorney General's discretion and
so places those decisions beyond our review.9 The only question
left to us is whether that unreviewable discretion also extends to
the predicate question of eligibility, i.e. the BIA's
determination as to whether Twum demonstrated "extraordinary
circumstances" or "extreme hardship" within the meaning of the
waiver provision or that she was "battered or subjected to extreme
cruelty" under the cancellation provision. The Government's
contention that Twum's arguments fall beyond our reach is amply
supported by caselaw from other circuits, which have largely
declined jurisdiction to second-guess BIA decisions denying
waivers or cancellation absent an evident constitutional or legal
challenge. See, e.g., Joseph v. Lynch, 793 F.3d 739, 742
(7th Cir. 2015) (as to timeliness waiver); Guzman-Munoz v. U.S.
9 In her reply, Twum contends that the Supreme Court's
decision in Kucana v. Holder, 558 U.S. 233 (2010), preserves the
courts' ability to review even discretionary decisions "without
any limitations." She overreads Kucana, however, which addressed
only whether decisions on motions to reopen described by regulation
as discretionary were shielded from review by
Section 1252(a)(2)(B)(ii). Id. at 252-53. In so doing, the Court
differentiated the regulation from "decisions specified by statute
to be in the discretion of the Attorney General and therefore
shielded from court oversight by [Section] 1252(a)(2)(B)(ii)," id.
at 248 (emphasis added, internal quotation marks omitted), and
expressly called out the waiver provision at issue here as one
such statutory grant of discretion, id. at 243 n.10.
- 10 -
Att'y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013) (determination
that alien was not a battered spouse is discretionary and not
subject to review); Rosario v. Holder, 627 F.3d 58, 63
(2d Cir. 2010) ("BIA determinations as to whether an alien has
been 'battered or subjected to extreme cruelty' require the
application of law to fact, rather than statutory interpretation.
As such, we have jurisdiction to review these determinations only
when the BIA applies an incorrect law or legal standard."). But
see Cardenas v. Lynch, 669 F. App'x 354, 355 (9th Cir. 2016)
(unpublished) ("The determination of whether extraordinary
circumstances are present is legal in nature, because it involves
the application of the law to undisputed facts.").
Our caselaw, however, is somewhat more equivocal.
Though this court has not addressed the particular provisions in
question, it has considered the interplay of Section 1252(a)(2)(B)
and other statutory grants of discretion. As a general matter,
those decisions support the thrust of the Government's
argument: "where Congress has enacted a jurisdictional wall, an
alien cannot scale it simply by 'relitigat[ing] whether the factors
relevant to [the] discretionary relief were appropriately weighted
by the IJ and the BIA." Mele v. Lynch, 798 F.3d 30, 32 (1st
Cir. 2015) (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32
(1st Cir. 2013)) (alterations in original); see also Elysee v.
Gonzales, 437 F.3d 221, 224 (1st Cir. 2006). Most pertinently,
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this court's 2013 decision in Castro v. Holder expressly concluded
that we lacked jurisdiction over a challenge to the BIA's
determination that a petitioner failed to show that he was
"battered or subjected to extreme cruelty" in the context of a
separate immigration statute. 727 F.3d 125, 130 (1st Cir. 2013).
In so holding, the panel found that neither the relevant statute
nor the implementing regulation "contemplate an objective legal
standard" for finding that an alien satisfied that criteria, and
so the BIA's determination on that point was purely discretionary.
Id. at 129-30.
Other cases from this circuit, however, have drawn a
narrow distinction between the BIA's ultimate decision to grant or
deny discretionary relief and its determination as to whether an
alien is eligible for such relief in the first instance. One
recent decision considered a remarkably similar statute to that at
issue here, which states that "[t]he Secretary of Homeland
Security, in the Secretary's discretion, may [grant unconditional
permanent resident status to certain otherwise ineligible aliens]
if the alien demonstrates that," inter alia, "extreme hardship
would result if such alien is removed." 8 U.S.C. § 1186a(c)(4)(A).
The panel held that it had jurisdiction to review the BIA's
determination as to whether the alien had demonstrated "extreme
hardship," holding that "there is a distinction between questions
of law concerning eligibility for relief and the ultimate decision
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. . . to grant such relief if eligibility is found." Gitau v.
Sessions, 878 F.3d 429, 433 (1st Cir. 2017). Turning to the
implementing regulation, Gitau found that its definition of
"extreme hardship" provided sufficiently "objective regulatory
criteria" to merit treating the BIA's determination on that point
as non-discretionary and so subject to review. Id. at 434; see
also Cho v. Gonzales, 404 F.3d 96, 99-103 (1st Cir. 2005) (same as
to precondition of marriage in good faith).
The juxtaposition of these lines of cases poses a
difficult question, but it is one which we are ultimately bound to
resolve against exercising jurisdiction. On the one hand, a number
of the factors stressed by Gitau are present here. Similar to the
statute at issue in that case, the provisions under consideration
here could be read to distinguish between discretionary decisions
to grant or deny requested relief and the underlying question of
whether an applicant is eligible for such relief in the first
instance. Moreover, the underlying regulations might be viewed as
offering "objective regulatory criteria": they expressly enumerate
certain categories of violence, threats, and psychological and
sexual abuse that fall within the regulation, while leaving open
the possibility that other forms of abuse may also qualify an alien
for relief. See 8 C.F.R. § 204.2(c)(1)(vi). We do not write on
a clean slate, however, and the application of Castro's holding --
that the BIA has unreviewable discretion to determine whether an
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alien was "battered or subjected to extreme cruelty" -- to this
appeal is unmistakable. While Castro considered a separate act,
its holding is grounded in the conclusion that statutory language
and implementing regulations identical to those at issue here do
not "contemplate an objective legal standard." 727 F.3d at 129.
It is axiomatic that we presume identical language in separate
statutes with similar purposes carry the same meaning, Smith v.
City of Jackson, Miss., 544 U.S. 228, 233 (2005), and so we find
it inescapable that we should interpret the "special rule"
cancellation provision in concert with Castro's earlier
construction of the same phrase, cf. San Juan Cable LLC v. P.R.
Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010) ("Under the law of the
circuit rule, however, mere disagreement by a coequal court with
a panel decision will not divest that opinion of its customary
stare decisis effect within the circuit."). Therefore, we conclude
that we are without jurisdiction to review challenges to the BIA's
determination as to whether a petitioner has been "battered or
subjected to extreme cruelty" within the meaning of Section
1229b(b)(2).10
10 Castro's holding does not speak to the distinct
"extraordinary circumstances or extreme hardship" demonstration
needed to obtain a waiver of untimeliness under Section
1229a(c)(7)(C)(iv)(III). We do not address that point, however,
as our conclusion that we lack jurisdiction over the final relief
obviates the need to decide whether the motion for such relief was
timely. See Zajanckauskas v. Holder, 611 F.3d 87, 90 (1st Cir.
- 14 -
With this conclusion in hand, we can proceed no further
in assessing Twum's arguments based on the special rule for
battered spouses. Twum does not raise a colorable legal or
constitutional challenge to the BIA's ruling as to either the
timeliness waiver or cancellation of removal, instead arguing only
that she was "clearly eligible" for such relief based on her
proffered evidence.11 Those are precisely the types of "attacks
on the factual findings made and the balancing of factors engaged
in by the" BIA that cannot be reviewed under Castro. 727 F.3d
at 128 (internal quotation marks and citation omitted). We
therefore are compelled to dismiss that portion of Twum's petition
for lack of jurisdiction.
B. Asylum, Withholding of Removal, and CAT-based Relief
Twum next argues that her removal proceedings should be
reopened so that she can pursue claims for asylum, withholding of
removal, and CAT-based relief. While Twum's motion below features
2010) ("Even if we agree with Petitioner as to the legal issues he
raises on appeal, the result in his case . . . is pre-ordained by
the Agency's discretionary holding.").
11 We note that Twum does not argue that the BIA entirely
ignored her evidence, which some decisions have treated as raising
a legal claim not subject to Section 1252's jurisdictional bar.
See, e.g., Huang v. Holder, 463 F. App'x 599, 601-02 (7th Cir.
2012) (unpublished) ("We have recognized that a contention that
the Board completely ignored the evidence put forth by a petitioner
is an allegation of legal error. In other words, the Board commits
legal error when it fails to exercise its discretion at
all." (internal quotation marks and citation omitted)).
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myriad grounds for relief based on potential harms to herself and
her daughters, she whittles these to down to two points in the
present appeal: first, that she (and her daughters) would face a
risk of FGM and other "traditional and customary practices"
directly targeting Ghanaian women; and, second, that she would be
"forced back into the home of" Asumadu-Baffi -- who has returned
to Ghana -- as a result of Ghanaian marital customs.
As a general proposition, motions to reopen must be filed
within ninety days of the final order of removal. 8 U.S.C.
§ 1229a(c)(7)(c)(i); 8 C.F.R. § 1003.2(c)(2). However, that limit
does not apply to petitions seeking either asylum or withholding
of removal if the applicant presents evidence of "changed country
conditions arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material and
was not available and would not have been discovered or presented
at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
C.F.R. § 1003.2(c)(3)(ii). "To establish changed country
conditions, the evidence must demonstrate the intensification or
deterioration of country conditions, not their mere continuation,"
Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015) (internal
quotation marks and citation omitted), and the petitioner bears
the burden of making such showing through a "convincing
demonstration," id. In evaluating whether a change has occurred,
"the BIA compares the evidence of country conditions submitted
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with the motion to those that existed at the time of the merits
hearing below." Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir.
2013) (internal quotation marks, alteration, and citation
omitted).
Once past this procedural hurdle, an alien seeking to
secure reopening must present a "prima facie case sufficient to
ground a claim of eligibility for the underlying substantive
relief." Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007).
"To make a prima facie case for asylum in the context of a motion
to reopen, the applicant need only produce objective evidence
showing a 'reasonable likelihood' that he [or she] will face future
persecution based on" one of five enumerated statutory grounds:
race, religion, nationality, membership in a particular social
group, or political opinion. Smith v. Jones, 627 F.3d 427, 437
(1st Cir. 2010) (internal quotation marks and citation omitted).
"An applicant may satisfy this burden through proof of past
persecution, which creates a rebuttable presumption of a well-
grounded fear of future persecution" or, alternatively, by showing
"both that he or she genuinely fears such persecution and that an
objectively reasonable person in his or her circumstances
would fear such persecution." Jutus v. Holder, 723 F.3d 105, 110-
11 (1st Cir. 2013) (internal quotation marks, alterations, and
citations omitted); see 8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).
" A 'reasonable likelihood' means showing a realistic chance that
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the petitioner can at a later time establish that asylum should be
granted." Smith, 627 F.3d at 437 (internal quotation marks and
citation omitted).
"The BIA enjoys considerable latitude in deciding
whether to grant or deny motions to reopen . . . and we review the
BIA's denial of a motion to reopen only for abuse of discretion."
Wanjiku v. Barr, 918 F.3d 215, 220-21 (1st Cir. 2019) (internal
quotation marks, alterations, and citation omitted). "Under that
standard, we uphold the BIA's decision 'unless the petitioner can
show that the BIA committed an error of law or exercised its
judgment in an arbitrary, capricious, or irrational manner.'" Id.
at 221 (quoting Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016)).
Measured against this standard, Twum's first claim for
relief based on FGM and other "traditional" practices falls short.
As the BIA correctly noted, Twum's proffered evidence fails to
demonstrate a material change in FGM practices in that country.
While Twum's evidence submitted in connection with her motion
suggests that FGM was a problem both before and after her removal
proceedings in 2011 and 2012, it does not reflect any escalation
in the frequency of that practice subsequent to her prior merits
hearing. The same must be said of the other practices of which
she complains, such as forced marriage and polygamy. We do not
mean to minimize or downplay the horror of any risk of being
subject to FGM; rather, we stress only that we cannot intervene
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absent a showing of changed circumstances.12 See, e.g., Sánchez-
Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017) ("[G]rave
conditions that remain grave do not equate to intensification
. . . .").
In contrast, however, the BIA did not make a finding --
one way or the other -- regarding changed country conditions as to
Twum's second claimed ground for relief, i.e. that Asumadu-Baffi's
return to Ghana places her in jeopardy of being returned to her
abusive former marriage. Instead, it considered only whether her
application made out a prima facie showing of entitlement to asylum
on that basis. We follow the BIA's lead and so proceed directly
to the substance of Twum's asylum claim.13
In denying relief, the BIA did not challenge the factual
foundations of Twum's claim, most notably that she was abused and
threatened by Asumadu-Baffi14 and that Asumadu-Baffi has now
12 Because we conclude that the BIA did not abuse its
discretion in finding a lack of changed country conditions, we
need not further consider its conclusion that Twum failed to make
a prima facie showing that she would be eligible for asylum based
on the risk that she (or her daughters) would be subject to FGM.
See Haizem Liu, 727 F.3d at 58 ("Where a petitioner fails to
establish changed circumstances, it is not necessary to reach the
issue of whether she has made out a prima facie case for relief.").
13 We decline to offer any opinion as to whether Asumadu-
Baffi's return to Ghana is a cognizable change in country
conditions.
14We note briefly one distinction between this set of claims
and Twum's special rule claim. As the BIA correctly noted,
Asumadu-Baffi's alleged domestic abuse is not cognizable under the
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returned to Ghana. Nevertheless, the BIA found Twum's claims of
threatened future harm were "unduly speculative" because she
failed to "offer[] evidence of any recent threats made against her
or any evidence that she has [] been contacted by her ex-husband
since [2002]."
It is worth stopping here to reiterate what the BIA did
and did not find. The agency does not expressly or impliedly
conclude that domestic abuse is not a cognizable type of harm, nor
does its opinion suggest a finding that Twum failed to link the
harm suffered to one of the enumerated statutory grounds.15
Instead, the BIA appears to have rested solely on the conclusion
that the remoteness of Twum's past abuse removed the objective
foundation of any fear of future harm.
"special rule," which is limited by its terms to abuse committed
by U.S. citizens and legal permanent residents. 8 U.S.C.
§ 1229b(b)(2)(A)(i)(I)-(III). That restriction does not apply to
Twum's other bases for seeking relief.
15
The question of whether and under what circumstances
domestic violence and other forms of private violence can
constitute "persecution" is the subject of ongoing litigation
outside of this circuit. See Grace v. Whitaker, 344 F. Supp. 3d
96 (D.D.C. 2018), appeal docketed sub nom. Grace v. Barr, No. 19-
5013 (D.C. Cir. 2019). The requirements for showing that a
petitioner is a member of a "particular social group" based on
domestic abuse are also the subject of ongoing litigation. See
Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018); see also Rivas-
Duran v. Barr, No. 17-1782, — F.3d —, 2019 WL 2498234, at *4 (1st
Cir. June 17, 2019). We need not, and do not, address those
questions here.
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It is here that we find fault in the BIA's opinion, the
ambiguities of which hinder effective review. Twum argues that
her evidence below establishes that she suffered past
persecution,16 and the BIA's opinion is plausibly read to
implicitly accept that premise: in emphasizing only remoteness,
the agency's opinion is susceptible to the interpretation that a
showing of closer-in-time abuse under the same circumstances would
provide Twum with grounds for an asylum claim. This, in turn,
raises questions about the BIA's adherence to the regulations. As
noted above, the petitioner's showing of past persecution gives
rise to a presumption that he or she would face future persecution.
See, e.g., Smith, 627 F.3d at 437. This presumption is rebuttable
if the agency finds by a preponderance of the evidence that, inter
alia, there has been a fundamental change in circumstances;
however, it is incumbent upon the agency to clearly make that
16
While the Government does not pursue any waiver argument,
we acknowledge that Twum did not explicitly call out "past
persecution" by name in her brief to the BIA. "Under the
exhaustion of remedies doctrine, theories insufficiently developed
before the BIA may not be raised before this court." Silva v.
Gonzales, 463 F.3d 68 (1st Cir. 2006); see also 8 U.S.C.
§ 1252(d)(1). Here, however, we find that the argument was fairly
placed before the BIA, as Twum's claim for asylum centers on her
allegation that she "suffered serious emotional, physical and
psychological abuse [at] the hands of [Asumadu-Baffi] in Ghana"
and her contention that she would suffer the same violence and
worse if returned to that country. Accordingly, we see no reason
to elevate form over function where the substance of Twum's past
persecution claim was squarely before the agency.
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finding.17 Cf. Fergiste v. I.N.S., 138 F.3d 14, 18-19 (1st Cir.
1998) (BIA's failure to expressly apply and rebut presumption after
finding of past persecution constitutes legal error). "In this
case, it is by no means clear that the BIA accepted [Twum's] past
persecution claim, applied a regulatory presumption of a well-
founded fear of persecution, and concluded that evidence of changed
circumstances refuted that presumption." Hernandez-Barrera v.
Ashcroft, 373 F.3d 9, 23 (1st Cir. 2004); cf. also El Moraghy v.
Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2004) ("The 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.").
If, on the other hand, the BIA did not intend to indicate
its acceptance that Twum's past abuse constituted remediable
persecution, then its basis for ruling against her is unclear to
us from the face of this opinion and so incapable of meaningful
17
We also note that the burden of rebutting the presumption
based on past persecution falls to the Government, not the
applicant. See Hernandez-Barrera, 373 F.3d at 23. Here, the BIA's
choice of words -- indicating that Twum did "not offer[] evidence
of any recent threats made against her or any evidence that she
has . . . been contacted by her ex-husband" -- may be viewed as
impermissibly shifting the burden to Twum, which would also
constitute legal error. Id. at 24.
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review. In either event, the proper remedy is for us to remand to
the agency for further examination and explication of its
decision.18 See id. at 26 ("[I]n the absence of a reasoned finding
that [petitioner] did not suffer past persecution or that the
[Government] met its burden of overcoming a regulatory presumption
of future persecution based on past persecution, we remand."); cf.
Larngar v. Holder, 562 F.3d 71, 80 (1st Cir. 2009) (remand
appropriate where basis for BIA's determination unclear from its
opinion).
III.
For the foregoing reasons, Twum's petition for relief
under the special rule for battered spouses is dismissed for lack
of jurisdiction, and her petition for review of her asylum,
withholding of removal, and CAT-based claims is denied in part and
granted in part. The BIA's opinion is vacated in part, and the
matter is remanded for further proceedings consistent with this
opinion.
18
The same flaws prevent further evaluation of Twum's claim
for withholding of removal. See 8 C.F.R. §§ 208.16(b)(1),
1208.16(b)(1) (finding of past persecution creates presumption of
entitlement to withholding of relief). Likewise, the Government
offers no reason to differentiate between its arguments as to why
we should deny Twum's request for asylum and withholding and for
CAT-based relief, and so remand is appropriate for that issue as
well.
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