Maria Juan v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA TOMAS JUAN, No. 18-70805
Petitioner, Agency No. A088-362-214
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 10, 2020
Portland, Oregon
Before: M. MURPHY,** BENNETT, and MILLER, Circuit Judges.
Maria Tomas-Juan, a native and citizen of Guatemala, petitions for
review from the Board of Immigration Appeals’ (“BIA”) decision affirming
an immigration judge’s (“IJ”) denial of her applications for withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
removal and protection under the Convention Against Torture (“CAT”). We
have jurisdiction under 8 U.S.C. § 1252(a)(1).
1. To be entitled to withholding of removal, a petitioner must
demonstrate her “life or freedom” would be threatened in her home country
because of, inter alia, “membership in a particular social group.” 8 U.S.C.
§ 1231(b)(3)(A). The petitioner can meet this burden by (1) establishing a
fear of future persecution based on past persecution or (2) independently
establishing “it is more likely than not that [she] would be threatened in the
future” on the basis of membership in a particular social group. 8 C.F.R.
§ 1208.16(b). If the petitioner can establish past persecution, a presumption
arises that she is entitled to withholding of removal because it is presumed
that her life or freedom will be threatened in the future if she is removed.
Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th Cir. 2004). The
presumption is rebutted when the government shows, by a preponderance of
the evidence, that there has been a fundamental change in circumstances or
that the petitioner could avoid future persecution by relocating within her
home country. 8 C.F.R. § 1208.16(b)(1)(i)–(ii).
In an order dated February 15, 2017, the BIA concluded the past harm
Ms. Tomas-Juan suffered at the hands of her husband rose to the level of
persecution. It remanded the matter to the IJ to determine, inter alia,
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whether Ms. Tomas-Juan’s past persecution was on account of a protected
ground. On remand, the IJ found that even if Ms. Tomas-Juan could
establish she is a member of a legally cognizable particu lar social group, she
failed to establish she is more likely than not to suffer future persecution in
Guatemala on account of her membership in such group. The BIA
dismissed Ms. Tomas-Juan’s appeal, concluding the IJ did not err in finding
that even assuming Ms. Tomas-Juan was a member of a cognizable
particular social group, she does not face a clear probability of persecution
if returned to Guatemala.
The approach taken by the IJ and approved by the BIA is legally
flawed. Because Ms. Tomas-Juan established past persecution, the burden
shifted to the Attorney General to establish, by a preponderance of the
evidence, that there has been a fundamental change in circumstances or that
Ms. Tomas-Juan could avoid future harm by relocating to another part of
Guatemala. 1 8 C.F.R. § 1206.16(b)(1)(ii). The IJ’s statement that Ms.
Tomas-Juan “has not established that she is more likely than not to suffer
1
This is true even though both the IJ and the BIA assumed, rather than
found, that Ms. Tomas-Juan was a member of a cognizable particular social
group and there was a nexus between her past persecution and her
membership in that group. Cf. Hanna v. Keisler, 506 F.3d 933, 938 (9th
Cir. 2007) (applying the presumption after assuming the petitioner suffered
past persecution).
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future persecution,” shows the burden was erroneously placed on Ms.
Tomas-Juan to establish she is likely to face future persecution if returned to
Guatemala. Because of the error in allocating the burden of proof, we grant
the petition and the Attorney General’s motion and remand to the BIA for
reconsideration of Ms. Tomas-Juan’s withholding of removal claim. See
INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per curiam).
2. Because of the potential overlap of evidence between Ms. Tomas -
Juan’s withholding of removal claim and her CAT claim, we also remand
for further consideration of Ms. Tomas-Juan’s eligibility for CAT relief. Cf.
Afriyie v. Holder, 613 F.3d 924, 937 (9th Cir. 2010). Ms. Tomas-Juan
requests that we grant CAT protection, but we decline to do so on the
current record. Cf. Haile v. Holder, 658 F.3d 1122, 1133 (9th Cir. 2011).
PETITION FOR REVIEW GRANTED; REMANDED.
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