Addo v. Barr ( 2020 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 14, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JOACHIM O. ADDO,
Petitioner,
v.
No. 18-9560
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
Appeal from the Board of Immigration Appeals
(Petition for Review)
_________________________________
Kari E. Hong, Boston College Law School, Newton, MA on behalf of Petitioner.
Scott Stewart, Deputy Assistant Attorney General, U.S. Department of Justice
Civil Division, Washington, D.C., (Joseph H. Hunt, Assistant Attorney General, Greg D.
Mack, Senior Litigation Counsel, Terri J. Scadron, Assistant Director, United States
Department of Justice, Civil Division, Office of Immigration Litigation, Washington,
D.C on the briefs) on behalf of Respondent.
_________________________________
Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
Petitioner Joachim Addo is a native and citizen of Ghana. The Board of
Immigration Appeals (BIA) affirmed the denial by an immigration judge (IJ) of his
application for asylum, withholding of removal, 1 and protection under the Convention
Against Torture (CAT). In the briefs on his petition for review by this court, he
challenges the denial of asylum and withholding of removal, arguing that substantial
evidence does not support the BIA’s determination that he could successfully avoid
future persecution by relocating within Ghana. 2 Exercising jurisdiction under 8 U.S.C.
§ 1252(a), we agree with Petitioner that the decision on his ability to safely relocate is
unsupported by substantial evidence. We grant the petition for review and remand to the
BIA for further proceedings.
I. BACKGROUND
A. Factual Background
1
“Congress changed the statutory language of the [Immigration and Nationality Act] to
‘restriction on removal,’ but the corresponding regulations retain the old phrase
‘withholding of removal.’” Uanreroro v. Gonzales, 443 F.3d 1197, 1200 n.1 (10th Cir.
2006) (citing 8 U.S.C. § 1231(b)(3) and 8 C.F.R. § 208.16(b)). Because the parties, the
BIA, and the IJ all refer to “withholding of removal,” we will use that term as well.
2
In this court Petitioner has not presented any argument challenging the ruling against
him on his CAT claim, so he has waived the issue. See Sawyers v. Norton, 962 F.3d
1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed
abandoned or waived . . . [as are] arguments that are inadequately presented . . . .”
(internal quotation marks omitted)).
Petitioner’s briefs also rely on Pereira v. Sessions, 138 S. Ct. 2105 (2018), to argue that
because the notice to appear sent to him by the Department of Homeland Security failed
to state the time and date of his first removal hearing, the immigration court had no
jurisdiction to order him removed. But after the briefing was completed this court
rejected the same arguments in cases brought by other immigration petitioners. See
Martinez-Perez v. Barr, 947 F.3d 1273, 1277–79 (10th Cir. 2020); Lopez-Munoz v. Barr,
941 F.3d 1013, 1017–18 (10th Cir. 2019). Petitioner did not pursue the issue at oral
argument, nor need we here.
2
In January 2017 Petitioner entered the United States. He expressed a fear of
returning to Ghana and was granted a credible-fear interview. An asylum officer
determined that Petitioner was credible and referred his case to adjudication.
At a hearing in June 2017 the IJ determined that Petitioner was removable.
Petitioner indicated, however, that he wished to apply for asylum, so the IJ scheduled a
hearing to consider the asylum claim. Petitioner filed an application for asylum,
withholding of removal, and protection under the CAT. He relied on the following
evidence:
Petitioner is the son of the chief of the Challa tribe. The tribe is small, with a
population of about 4000. It is based in and around the town of Nkwanta, in eastern
Ghana near the border with Togo. For several years the Challa have been in a land
dispute with another tribe, the Atwode. 3
The Atwode tribe is larger than the Challa, with 10,000 to 15,000 members. But
the Challa control more land in the Nkwanta district, and in the past they often leased
land to the Atwode. Starting in 2005 the Atwode began violating the lease terms and
customs. Petitioner’s father therefore instructed the Challa to stop leasing land to the
Atwode, and he took the Atwode to court over the land disputes, winning every case.
The Atwode responded with violence against the Challa and vowed to eliminate
Petitioner’s father and family. This led to several violent incidents perpetrated by the
Atwode against Petitioner and other members of his family, which we summarize here.
3
Portions of the record refer to the Atwode as the “Akyode.” For clarity we use the
spelling “Atwode” throughout this opinion.
3
In 2012 six Atwode men stopped Petitioner at gunpoint in Nkwanta and beat him
with sticks, breaking his legs. The men told Petitioner that they wanted to cripple him so
that he could not lead the Challa in the future. The next day, Petitioner’s two brothers
were attacked by the Atwode while on their way to visit Petitioner. One brother suffered
a broken collarbone and internal bleeding, the other a slashed cheek.
About two months later the Atwode attacked Petitioner’s father in his home. They
attempted to shoot him, but the gun failed. Petitioner’s father reported the attack to the
police, who arrested the gunman. In retaliation for the arrest, several members of the
Atwode went to the home of Petitioner’s father, where they destroyed property and
threatened to behead Petitioner’s father. The police did not respond, but members of the
military who were in the area intervened to protect Petitioner’s father.
Shortly after these attacks, Petitioner and his father agreed that, for his own safety,
Petitioner would relinquish his position as heir-apparent to the Challa chiefdom and
would move from Nkwanta to Accra, the capital of Ghana. But this did not stop the
Atwode. In August 2014 several Atwode men showed up at Petitioner’s home in Accra.
When Petitioner’s wife said that he was not at home, the men beat her. They told her to
“tell [Petitioner] to advise his father to stop taking our people to court.” Certified
Administrative Record (CAR) 484 (internal quotation marks omitted). In response to this
attack Petitioner moved to a different part of Accra, but after moving he received a text
message saying that the Atwode knew his new address and that moving would not help
him.
4
In November 2014 the Atwode assassinated Petitioner’s uncle. That same day,
Atwode men came to Petitioner’s home in Accra. His wife, trying to mislead the men,
said that Petitioner was on his way back to Nkwanta. The Atwode then burned down
Petitioner’s house in Nkwanta.
Petitioner and his brothers continued to receive death threats via phone calls and
text messages. In June 2016 Petitioner moved again, but the threats continued and
became significant enough that Petitioner and his brothers began thinking about leaving
Ghana. An example of these threats, documented in a police report filed by one of
Petitioner’s two brothers, is a text message telling the brother that “if you don’t stop
aiding [your father], we w[ill] bath[e] you with acid. We are monitoring you and would
locate you anywhere you go.” CAR 453. In response to these escalating threats,
Petitioner’s wife left Ghana for Kenya in September 2016, and his two brothers left the
country in December 2016 and January 2017. One brother went to the Ivory Coast and
the other moved to Benin.
In the middle of one night in late January 2017, when Petitioner was already
preparing to leave Ghana, two gunshots were fired into his bedroom. He inferred that
members of the Atwode had fired the shots because of death threats he received from the
Atwode via text message. He escaped harm because at the time of the shooting he was in
another room taking care of an ill son. Immediately after this incident Petitioner left
Ghana. He took his children to Togo, then went on to the United States himself.
As leader of the Challa tribe, Petitioner’s father continues to live in Nkwanta. A
number of Challa tribesmen, including retired members of the military, live with
5
Petitioner’s father to provide him with constant protection. Petitioner’s mother and six of
his sisters also remain in Ghana, the sisters in Accra.
B. Procedural History
The IJ denied Petitioner’s application for asylum, withholding of removal, and
protection under the CAT. Although the IJ found Petitioner credible, the IJ concluded
that he had failed to show that he was persecuted on the basis of a protected ground
because he had not proved that his father was the leader of the Challa tribe. Petitioner
appealed to the BIA, which determined that Petitioner had sufficiently proved that his
father was chief. The BIA explained that Petitioner was therefore entitled to a
presumption that he had a well-founded fear of future persecution. It remanded the case
to the IJ to assess whether the government could rebut this presumption by showing that
Petitioner could safely and reasonably relocate within Ghana.
On remand the Department of Homeland Security (DHS) submitted the following
additional evidence to prove that Petitioner could relocate within Ghana: (1) a profile of
Ghana from an organization called the Joshua Project containing information about the
population of different tribal groups within the country; (2) a World Factbook entry
containing information about Ghana’s population, ethnic breakdown, and geography; (3)
a profile of the Atwode tribe stating that the tribe is based in the Nkwanta district and that
some members migrate to other parts of Ghana, “especially to Accra, Kumasi and the
larger towns of the Volta region,” CAR 111; and (4) a letter from a researcher at the
Library of Congress that discusses Nkwanta, including the region’s history of ethnic
6
conflict, and states that there is no information suggesting any legal impediment to
internal relocation within Ghana.
The IJ again denied Petitioner’s application for asylum, withholding of removal,
and protection under the CAT, ruling that the government had met its burden to establish
that Petitioner could successfully relocate within Ghana. He again appealed the IJ’s
decision on all three forms of relief. The BIA dismissed the appeal on the ground “that
any presumption of future persecution has been rebutted by evidence demonstrating that
[Petitioner] could internally relocate.” CAR 3. Because it affirmed on that ground, the
BIA declined to address Petitioner’s other arguments. He then filed this petition for
review. 4
II. DISCUSSION
A. Standard of Review
“[W]e review the BIA’s decision as the final agency determination and limit our
review to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279
(10th Cir. 2006). But “when seeking to understand the grounds provided by the BIA, we
are not precluded from consulting the IJ’s more complete explanation of those same
grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006). “This is
4
In July 2020, Petitioner informed the court that he had been removed from the United
States and was awaiting the resolution of this appeal from a safe location abroad. We
note that Petitioner’s removal has not mooted his petition for review because, “in the
event this court grants his petition, [Immigration and Customs
Enforcement] would facilitate his return to the United States pursuant to its
Facilitation of Return Policy.” Igiebor v. Barr, No. 19-9579, at 9–10 (10th Cir. 2020).
7
especially appropriate where,” as in this case, “the BIA incorporates by reference the IJ’s
rationale or repeats a condensed version of its reasons while also relying on the IJ’s more
complete discussion.” Id.“We consider any legal questions de novo, and we review the agency’s findings of
fact under the substantial evidence standard.” Elzour v. Ashcroft, 378 F.3d 1143, 1150
(10th Cir. 2004). Under the substantial-evidence standard, “the administrative findings of
fact are conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). The question whether a noncitizen can avoid
future persecution by internally relocating is a factual determination. See Gambashidze v.
Ashcroft, 381 F.3d 187, 193 (3d Cir. 2004); Thiam v. Holder, 555 F. App’x 773, 778
(10th Cir. 2014).
B. Asylum
Petitioner argues that there is not substantial evidence to support the BIA’s ruling
that Petitioner could safely avoid persecution by relocating within Ghana. We agree.
To qualify for asylum, a noncitizen “must demonstrate either past persecution or a
well-founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” Matumona v. Barr, 945
F.3d 1294, 1300 (10th Cir. 2019) (brackets and internal quotation marks omitted). Where
the noncitizen has demonstrated past persecution, he is entitled to a presumption of a
well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). The government
can rebut this presumption in several ways, including through showing by a
preponderance of the evidence that the noncitizen can avoid future persecution by
8
relocating within his country of nationality “and under all the circumstances, it would be
reasonable to expect [him] to do so.” Id. § 1208.13(b)(1)(i)(B), (ii); see Ritonga v.
Holder, 633 F.3d 971, 976–77 (10th Cir. 2011) (“Fear of persecution is not well-founded
if the applicant can avoid persecution by relocating to another part of the country and it
would be reasonable to expect her to do so.”).
“[B]ecause the purpose of the relocation rule is not to require an applicant to stay
one step ahead of persecution in the proposed area, th[e] [new] location must present
circumstances that are substantially better than those giving rise to a well-founded fear of
persecution on the basis of the original claim.” Matter of M-Z-M-R-, 26 I. & N. Dec. 28,
33 (BIA 2012). “DHS must demonstrate that there is a specific area of the country where
the risk of persecution to the respondent falls below the well-founded fear level.” Id. at
33–34. In evaluating whether relocation is reasonable, the court considers “whether the
applicant would face other serious harm in the place of suggested relocation; any ongoing
civil strife within the country; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as age, gender, health,
and social and familial ties.” 8 C.F.R. § 1208.13(b)(3). 5
In ruling that the government had met its burden, the BIA stated:
The [IJ] relied upon the DHS’s evidence, especially a 2003 article,
which states that the rival [Atwode] tribe does not control the entire
country, but is limited to an area of about 190 square kilometers. The
[IJ] found that, although [Petitioner] had relocated numerous times
within Accra, there had been some infiltration of the [Atwode] into
Accra, and [Petitioner] had never attempted “to relocate elsewhere
5
Because reversal is required on the “safety” portion of the relocation inquiry alone, we
have no need to consider the reasonableness of relocation.
9
within Ghana.” Thus, the [IJ] reasoned that [Petitioner] could safely
and reasonably relocate to a part of the country where the [Atwode]
tribe is not in control. These findings are not clearly erroneous.
CAR 4 (citations omitted). The IJ had provided the following explanation:
The Court finds that internal relocation is both practically and
legally reasonable. Primarily, [Petitioner] was not persecuted by the
government or any other national entity. He was harmed by a local
group from the Atwode tribe. However, he has not established
through credible, direct, and specific evidence that the men who
previously attacked him are willing, capable, and inclined to
persecute him throughout Ghana. Further, there is no evidence that
[Petitioner] has any recognition outside his neighborhood such that
he would be unsafe anywhere in the country.
Second, the DHS provided evidence that there are areas within
Ghana that are ethnically heterogeneous, meaning [Petitioner] would
be able to resettle there without concern of persecution based on his
ethnicity. Furthermore, members of [Petitioner’s] family continue to
live relatively safely in Ghana. Although his parents have been
targeted in Nkwanta, [his] sisters remain safely in Accra. Initially,
[Petitioner] also relocated to Accra following the first attack;
thereafter, he stated that he moved “from place to place,” within
Accra because the assailants continued to pursue him. Notably,
however, [Petitioner] merely relocated within different
neighborhoods of Accra without attempting to relocate elsewhere
within Ghana. The DHS has provided evidence that demonstrates the
tribe [Petitioner] fears, the Atwode, operate within “an area of about
190 square kilometers covering a crescent-shaped chain of villages
in the Nkwanta district, Volta Region, near the Togo Border.” Some
of the tribe’s members have also migrated to Accra. However,
[Petitioner] testified that the Atwode are not so powerful that they
control the entirety of Ghana. In fact, they are a relatively minor
tribe, with only 15,000 members compared to other Ghanaian ethnic
groups such as the Akan, who comprise 47.5% of the population, or
the Mole-Dagbon, who constitute 16.6% of the population. Even in
the Nkwanta district, the Atwode are a minority—the predominant
groups are the Gurma (50%) and the Ewe (18%). [Petitioner] may
relocate to a place outside traditional Atwode control and remain
safe, especially since he is no longer the heir apparent of the Challa
tribe, which is purportedly why he was being persecuted.
10
CAR 43–44 (citations omitted).
The analysis of the IJ and BIA is flawed. To begin with, their reliance on the
Atwode tribe’s small size and limited area of control is misplaced. After all, Petitioner
fled Nkwanta to Accra—a city of over two million people located more than 200 miles
from the Atwode’s traditional area of control around Nkwanta—yet the Atwode tracked
him to separate addresses there on several occasions, once assaulting his wife and once
being the ones responsible (or so Petitioner could reasonably believe) for shooting into
his bedroom. The Atwode’s small numbers and localized homeland does not prevent
them from operating in parts of the country outside Nkwanta. It does not take many
henchmen or control of any territory to assault a few members of one family.
In defense of the agency rulings, the government argues that Petitioner’s
experiences in Accra have little bearing on whether circumstances for Petitioner would be
better in another part of the country, see M-Z-M-R-, 26 I. & N. Dec. at 33, because––
unlike other parts of Ghana––Accra is a place where the Atwode have “presence or
influence.” Aplee. Br. at 24. But it points to no evidence that supports this argument.
The government fails to explain the character or extent of the Atwode’s purported
influence, and none of the evidence submitted to the IJ by DHS suggests that they enjoy
any influence in Ghana’s capital at all. 6 To be sure, the government is correct that
6
Petitioner testified before the IJ that he believed many of the security guards at the
Accra airport are Atwode, which, if true, might suggest that the Atwode have some
influence in Accra. But because the government asserts that this claim is mere
“conjecture,” Aplee. Br. at 25 n.9, it cannot rely on Petitioner’s testimony as evidence of
Atwode influence in Accra.
11
members of the Atwode tribe are present in the capital. Indeed, the profile of the Atwode
submitted to the IJ by DHS states that “[s]ome [Atwode] migrate in search of salaried
jobs and education, especially to Accra, Kumasi and the larger towns of the Volta
region.” CAR 111. But even this evidence indicates that Atwode also migrate to other
places in Ghana and states only that the named cities are “especially” common
destinations. CAR 111. The government has offered no evidence that Atwode are not
present in other Ghanaian cities to which it would have Petitioner relocate. And more
importantly, the government has no evidence linking the Atwode’s ability to track and
threaten Petitioner in Accra with the “presence” of Atwode migrants in that city. The
government has thus failed to satisfy its burden to show that Petitioner’s experience in
Accra––where he apparently was tracked, threatened, and shot at by Atwode as he moved
from address to address––could not be duplicated in other parts of Ghana.
In particular, the IJ, the BIA, and the government all fail to address adequately the
threatening text messages sent by the Atwode. As described above, in 2014 after
relocating his family to a new part of Accra, Petitioner received a text message telling
him that the Atwode knew of his location and that “moving from place to place” would
not save him. CAR 484. And in a 2016 text message the Atwode told Petitioner’s
brother, “We are monitoring you and would locate you anywhere you go.” CAR 453.
These text messages call into question the IJ’s perplexing statement that Petitioner “has
not established . . . that the men who previously attacked [Petitioner] are willing, capable,
and inclined to persecute him throughout Ghana.” CAR 43. (In any event, it was the
government’s burden to establish a lack of danger to Petitioner, not Petitioner’s burden to
12
show danger.) Yet neither the IJ nor the BIA even mentions these threats in their
decisions, nor does the government address them in its brief. Without any explanation of
why the text messages can be ignored, and with no evidence suggesting that Petitioner’s
experience in Accra would be unique, the conclusion that the Atwode could not or would
not harm Petitioner in the “vast areas of Ghana beyond Accra and the Nkwanta District,”
Aplee. Br. at 24, finds no support in the record. See Xochihua-Jaimes v. Barr, 962 F.3d
1175, 1187 (9th Cir. 2020) (disagreeing with the BIA’s conclusion in a CAT case that the
applicant could safely relocate within Mexico in part because “[n]either the IJ nor the
BIA cited any evidence that there are states in Mexico where Los Zetas are unable to
operate”). Cardenas v. I.N.S., 294 F.3d 1062, 1066–67 (9th Cir. 2002) (asylum
applicant’s receipt of “a direct threat . . . in which [his persecutors] informed him that
[they] would get to him wherever he was located,” suggested that the applicant could not
safely relocate in the country).
The remaining reasons offered by the BIA and the IJ in support of their decisions
are even less persuasive. First, the letter from the researcher at the Library of Congress
states only that the researcher found nothing indicating that there would be a legal
impediment to Petitioner’s relocating in Ghana. That letter is irrelevant to the risk
presented by the Atwode, who likewise are unrestricted in searching for Petitioner within
the country. See Xochihua-Jaimes, 962 F.3d at 1187. Also, the IJ supported his decision
by noting that “there are areas within Ghana that are ethnically heterogeneous, meaning
[Petitioner] would be able to resettle there without concern of persecution based on his
ethnicity.” CAR 44. But Petitioner was in danger because of his position within his
13
family, not just his ethnicity. Besides, both Accra and Nkwanta are also “ethnically
heterogeneous,” yet the Atwode attacked Petitioner in both those locations. Living in an
“ethnically heterogeneous” location did not protect Petitioner before, and there is no
evidence that it would in the future.
The IJ also supported his decision with the observation that “there is no evidence
that [Petitioner] has any recognition outside his neighborhood such that he would be
unsafe anywhere in the country.” IJ Op. at 2–3. But Petitioner did not need to be
recognized by the local population to be in danger. Although Petitioner moved 200 miles
from his hometown of Nkwanta to Accra, a city of 2.3 million people, and relocated
several times within that city, the Atwode were apparently able to track him down after
each move. The risk to Petitioner was not that bigoted locals would recognize him as a
member of a despised ethnic group; his danger arose from another group’s determined
(and partially successful) targeting of the men in his family, which did not depend on
local recognition.
Next, as the BIA noted, the IJ appears to have faulted Petitioner for “never
attempt[ing] ‘to relocate elsewhere within Ghana.’” CAR 4 (quoting CAR 44). But
“[t]he [U.S. Citizenship and Immigration Services] Asylum Office has [itself]
emphasized that ‘[t]here is no requirement that an applicant first attempt to relocate in his
or her country before flight.’” Law of Asylum in the United States § 2:22 at 3 (2020 ed.)
(citing Combined Training Course, Well-Founded Fear, REFUGEE, ASYLUM, AND
INTERNATIONAL OPERATIONS DIRECTORATE, at 28 (Jan. 17, 2019), available at
https://www.uscis.gov/sites/default/files/files/nativedocuments/Well_Founded_Fear_LP_
14
RAIO.pdf [perma.cc/RD44-M4V7]); see also Xochihua-Jaimes, 962 F.3d at 1182, 1186
(concluding that “[n]either the IJ nor the BIA cited any affirmative [e]vidence that [the
petitioner] could relocate” even where the BIA relied on “the lack of any attempt to
relocate” by the petitioner). And, of course, after moving from Nkwanta to Accra,
Petitioner did relocate several times within Accra in an unsuccessful effort to evade the
Atwode. “[T]he purpose of the relocation rule is not to require an applicant to stay one
step ahead of persecution.” M-Z-M-R-, 26 I. & N. Dec. 28, 33.
The IJ’s reliance on the fact that Petitioner “is no longer the heir apparent of the
Challa tribe,” CAR 44, is likewise unreasonable. Petitioner relinquished his right to
inherit the chiefdom in 2012, but between that time and when he fled the country in 2017,
the Atwode attacked his wife, burned down his house in Nkwanta, sent him death threats,
and (Petitioner could reasonably infer) attempted to kill him by shooting into his
bedroom. Also, the Atwode assassinated Petitioner’s uncle and attacked Petitioner’s
brothers, none of whom were in the line of succession. The IJ may have viewed
Petitioner’s abandonment of the right of succession as significant, but the Atwode
evidently did not.
Finally, the IJ thought it important that “members of [Petitioner’s] family continue
to live relatively safely in Ghana. Although his parents have been targeted in Nkwanta,
[Petitioner’s] sisters remain safely in Accra.” CAR 44. But gender equality did not
appear to be a priority of the Atwode. They focused on the male members of Petitioner’s
family—Petitioner himself, his father, his uncle, and his brothers. The safety of his
15
sisters has little probative value, particularly when their experience in Accra has been so
different from his.
On this record we think it was unreasonable for the BIA and the IJ to decide that
the government successfully rebutted the presumption that Petitioner has a well-founded
fear of future persecution in Ghana. Their finding that Petitioner could safely relocate
within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen.,
434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully
shield [an asylum applicant from] persecution” because, although the applicant “relocated
from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the
applicant] and his family . . . , [including through] frequent notes and telephone calls
detailing the family’s activities and threatening them with death,” and by “burning down
[the applicant’s] farm house”).
C. Withholding of Removal
To qualify for withholding of removal, a noncitizen must make a showing similar
to that required for an asylum claim. The applicant must “establish that his or her life or
freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
8 C.F.R. § 208.16(b). And if it is determined that the applicant suffered past persecution
on account of one of the protected grounds, “it shall be presumed that the applicant’s life
or freedom would be threatened in the future in the country of removal on [that] basis,”
although the presumption can be rebutted by showing that the applicant could reasonably
avoid the threat by relocating internally. See id. § 208.16(b)(1)(i); Rodas-Orellana v.
16
Holder, 780 F.3d 982, 986 (10th Cir. 2015) (describing similar requirements for claims
for asylum and withholding of removal). But to qualify for withholding of removal,
applicants “must prove a clear probability of persecution on account of a protected
ground,” a higher standard than the “reasonable possibility” showing necessary for
asylum claims. Id. at 986–87 (emphasis added) (internal quotation marks omitted).
Relying on this higher standard, the IJ reasoned that because Petitioner had “failed to
prove that he warrants a grant of asylum, . . . it necessarily follows that he has likewise
failed to meet the . . . burden of proving that he warrants a grant of withholding of
removal.” CAR 45. Since we reverse the BIA’s decision on Petitioner’s asylum claim,
we must also reverse and remand to the BIA the withholding-of-removal claim.
III. CONCLUSION
We GRANT the petition for review, REVERSE the BIA’s decision on
Petitioner’s asylum and withholding-of-removal claims, and REMAND to the BIA for
further proceedings consistent with this opinion. We also GRANT Petitioner’s motion to
proceed in forma pauperis.
17