Delphine Arrey v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DELPHINE A. ARREY, AKA Arrey No. 16-73373
Delphine Ayamba,
Petitioner, Agency No.
A208-595-387
v.
WILLIAM P. BARR, Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 18, 2018
San Francisco, California
Filed February 26, 2019
Before: Ronald M. Gould and Marsha S. Berzon, Circuit
Judges, and Frederic Block, * District Judge.
Opinion by Judge Gould
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 ARREY V. BARR
SUMMARY **
Immigration
The panel granted in part a petition for review of the
Board of Immigration Appeals’ decision affirming an
immigration judge’s denial of asylum, withholding of
removal, and protection under the Convention Against
Torture to a citizen of Cameroon, and remanded.
The panel rejected petitioner’s contention that she was
deprived of her due process right to a full and fair hearing
based on the denial of her right to retained counsel and an
unbiased fact finder. The panel held that the IJ in this case
provided petitioner reasonable time to locate an attorney,
where the IJ provided several continuances so she could do
so, warned her repeatedly that he would not grant further
continuances, and attempted to call her attorney when he
failed to appear on the day of her merits hearing. The panel
also held that although the IJ was rude and harsh with
petitioner, petitioner failed to establish that the IJ’s conduct
prejudiced her, where the IJ held a complete hearing and
made a thorough decision that fully examined the underlying
factual matters, and any potential prejudice caused by the
IJ’s questionable adverse credibility determination was
cured by the Board’s subsequent decision assuming the
credibility of petitioner’s testimony in full.
The panel held that the Board committed three legal
errors in its application of the firm resettlement bar, which
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ARREY V. BARR 3
precludes asylum relief if an applicant was firmly resettled
in another country prior to arriving in the United States.
First, the panel held that the Board erred by failing to
consider whether the conditions of petitioner’s offer of
resettlement in South Africa were too restricted for her to be
firmly resettled. Second, the panel held that the Board erred
by applying the firm resettlement rule not as a mandatory bar
to petitioner’s asylum claim, but instead as a limitation on
the evidence the Board considered in support of her claim
for relief from removal to Cameroon, thus causing the Board
to improperly ignore evidence of the abuse petitioner
suffered in Cameroon before fleeing to South Africa, as well
as evidence of the nature of her relationship with her abuser.
Third, the panel held that the Board erred by applying the
firm resettlement bar to petitioner’s withholding of removal
claim, which is not subject to the firm resettlement bar.
Turning to petitioner’s CAT claim, the panel held that
substantial evidence did not support the Board’s
determination that petitioner could avoid future harm
through internal relocation in Cameroon.
The panel remanded petitioner’s asylum, withholding,
and CAT claims for further proceedings consistent with its
opinion.
4 ARREY V. BARR
COUNSEL
Ronald D. Richey (argued), Law Offices of Ronald Richey,
Rockville, Maryland, for Petitioner.
Victoria M. Braga (argued), Trial Attorney; Cindy S. Ferrier,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent
OPINION
GOULD, Circuit Judge:
Petitioner Delphine Arrey petitions for review of the
Board of Immigration Appeals’ (“BIA” or “Board”) decision
dismissing her appeal of an immigration judge’s (“IJ”)
denial of her application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).
We conclude that the IJ did not deny Arrey her due process
rights to counsel and an unbiased factfinder. As to Arrey’s
asylum and withholding of removal claims, we conclude that
the Board erred as a matter of law in its analysis and
application of the “firm resettlement” rule. As to Arrey’s
claim for relief under CAT, we conclude that substantial
evidence does not support the Board’s determination that
Arrey could safely relocate in another area of Cameroon.
We grant the petition in part and remand for reconsideration
of Arrey’s claims consistent with our opinion.
ARREY V. BARR 5
I
A
Arrey is a native and citizen of Cameroon. In October
2015, she used her Cameroonian passport to obtain a
Mexican visa in Nigeria. After traveling to Mexico, she
applied for admission to the United States at a port of entry
in California. Because her passport had been taken from her
in Mexico, she did not possess or present a valid passport or
entry document. The Department of Homeland Security
(“DHS”) personally served her with a Notice to Appear,
charging that Arrey was removable from the United States
as an immigrant who, at the time of application for
admission, did not possess a valid entry document or
passport. The Notice ordered Arrey to appear before an IJ
to show why she should not be removed from the United
States.
Arrey first appeared before an IJ on December 3, 2015.
Arrey said that English was her best language. The IJ
explained the process and informed Arrey of her right to hire
an attorney, her appellate rights, and the consequences of
removal. Arrey said that she was not ready to proceed, so
the IJ continued her case for another four weeks. The IJ also
told Arrey that if she appeared at the next hearing without an
attorney, or with a recently-hired attorney who was not ready
to proceed, the IJ would nonetheless proceed with her case.
Arrey’s second hearing was held on December 30, 2015.
Arrey told the IJ that she had not found an attorney, though
she had “tried to get [her] family friends out there to get me
one.” The IJ questioned whether Arrey had taken “any
concrete action” to get an attorney. He told her that “the
questions aren’t that hard really” and asked her whether she
would “have the attorney here in a week.” Arrey responded
6 ARREY V. BARR
“a week is too early.” The IJ then found that Arrey had not
established good cause for a continuance and proceeded to
take the pleadings. Based on Arrey’s admissions, the IJ
sustained the charge of removability. On DHS’s
recommendation, the IJ designated Cameroon as the country
of removal. After Arrey expressed a fear of harm or
persecution in Cameroon, the IJ told her to fill out Form I-
589 and suggested that she could also look for an attorney
before her next hearing.
After filing her asylum application, Arrey appeared for
her third hearing on January 27, 2016. There, the IJ
scheduled a March 28 hearing to address the merits of her
applications for relief and protection. The IJ told Arrey, “if
you show up [at the next hearing] and tell me you’re not
ready . . . I’m going to finish your case on that day with an
order of removal.” Arrey stated that she understood.
At the March 28 hearing, the DHS attorney told the IJ
that Attorney Ronald Richey had recently filed a motion for
continuance on Arrey’s behalf. The IJ asked Arrey if she
was seeking a continuance in her case, and she said that she
was. The IJ asked her “why [she] did exactly specifically
what I told you exactly not to do?” noting that she had had
two months since her January hearing to prepare. He
reminded her that “the only way you can have a hearing is to
steal a hearing from someone else, and that there are people
there who are threatening suicide because they can’t get
hearing dates.”
The IJ’s expressed hostility continued: When Arrey
asked for “another short time” because her attorney was not
available, the IJ told her that he considered her actions
“inconsiderate and extremely selfish.” He noted that,
according to the motion for continuance, Arrey had only
contacted her retained attorney “basically less than a week”
ARREY V. BARR 7
before the present hearing. The IJ found “no good cause for
a continuance” and made a “finding of dilatory tactics based
on the advisal that [he] gave [Arrey] previously.”
Notwithstanding the IJ’s finding of dilatory tactics, the
IJ continued Arrey’s case for another week, to April 6. He
advised her that “no continuance is going to be granted on
April 6, 2016, [and if she was] not ready on that date, [he
would] finish [her] case with an order of removal,” whether
or not her attorney was present.
One day before the rescheduled merits hearing, the
Immigration Court received from Richey a motion to appear
telephonically, or in the alternative to withdraw as counsel,
and a list of intended evidence. A note on these filings
indicates that the IJ did not receive the filings before the
April 6 hearing, but the record does not indicate why.
Arrey’s final hearing occurred on April 6. The IJ asked
whether Arrey was ready to go forward, and she said “my
attorney said he will come, he could call you through the
hearings today.” The IJ told her—incorrectly—that Richey
“didn’t put in any motion for a telephonic hearing.” The IJ
asked if Arrey wanted to proceed. Arrey responded, “Your
Honor, no.” The IJ further asked, “are you going to be
presenting any evidence today ma’am?,” and she said, “Your
Honor, I don’t know. [Richey] might be on the line because
he told me he will have to talk to, he has to be on the line to
know−.” The IJ told her “[w]e can go forward today by
yourself or I can just finish your case with an order of
removal, and then, you know, you can talk to your attorney
about it later.” At that, Arrey told the IJ: “Your Honor, I
think you are the good one to take the decision.”
The IJ then reminded Arrey about the warnings he had
previously given her, and again asked “do you want to
8 ARREY V. BARR
present a case today?” Arrey responded, “Your Honor, I’m
not ready.” The IJ “[found] [Arrey’s] application [for
asylum] has been abandoned,” but he continued to ask Arrey
whether she wanted to proceed.
The IJ explained that there was no way that Richey could
appear by telephone for the merits hearing, but the IJ
nevertheless agreed to call Richey. The person who
answered the phone indicated that “Mr. Richey is not in right
now. He should be in any second though.” The IJ ended the
call and asked Arrey what she wanted to do. He told her that
her choices were to “go forward . . . by [herself]” or accept
an order of removal. The transcript indicates that Arrey
responded “I can [indiscernible].” The IJ then proceeded to
ask for documentary evidence from both Arrey and the DHS
attorney, to place Arrey under oath, to ask her questions
about her claims for relief and protection, and to allow the
DHS attorney to cross-examine her. What follows is a
summary of Arrey’s testimony, which the Board credited as
true.
B
Arrey testified that she was born in 1976 in Cameroon
and lived with her family in the village of Nchang until she
was twelve years old. Female genital mutilation was
practiced in Nchang, but the practice was prohibited in
Arrey’s Roman Catholic religion. To protect Arrey, her
family arranged for her to stay with friends, Jean Thomas
and his wife, in the city of Victoria, Cameroon.
Arrey lived in Thomas’s home for twenty-six years.
During that time, Thomas sexually and physically abused
her. He refused to send her to school, beat her, forced her to
have sex with him, impregnated her, threatened to kill her,
ARREY V. BARR 9
and told her that her “family would never see her corpse” if
she told anyone that he had impregnated her.
On one occasion, Arrey was hospitalized as a result of
Thomas’s abuse. She then told hospital staff that she was
“beaten at home,” but she did not identify Thomas as her
abuser, and his identity was not reported to police. After
Arrey was released from the hospital, she went to a friend’s
home. Thomas found her there because he knew most of her
friends and where they lived. Thomas brought her home and
proceeded to viciously beat her with a whip and cables. He
told her that she had no right to leave his home and stay
elsewhere.
When Arrey was twenty-six, she became pregnant with
Thomas’s child. Thomas did not want his wife to discover
that he was the father, so he threatened to kill Arrey unless
she accused one of her friends of impregnating her. Thomas
also threatened the friend, who accepted responsibility.
Arrey believed that Thomas had abused and threatened her
because, against Arrey’s wishes and her Catholic faith, he
wanted to “marry her like a second wife.”
Thomas sometimes brought Arrey to the local police
station and accused her of stealing and “do[ing] bad things”
in his house. According to Arrey, Thomas was able to
convince the police to detain her because he was an
influential businessman in the community. Arrey’s fear of
the police and Thomas prevented her from reporting
Thomas’s abuse.
Arrey stayed with Thomas despite the abuse, because she
believed he protected her from other “assaults in the
community” and because her parents could not support her.
Although she occasionally stayed with friends, her friends
10 ARREY V. BARR
did not have enough room in their homes to allow her to live
with them.
Arrey did not tell her friends about Thomas’s sexual
abuse, but she told them that he physically abused her.
Eventually, Arrey’s friends helped her flee from Cameroon
and relocate to South Africa. She arrived in South Africa in
2007, was granted refugee status, and remained there for
seven years. While Arrey lived in South Africa, Thomas
searched for her. He attempted to kidnap their two children
from the home of Arrey’s friend, where they had been living
since Arrey left Cameroon.
Arrey left South Africa in 2014 and returned to
Cameroon following two incidents. First, in 2011, she was
robbed and assaulted while walking home from work. Her
assailants stabbed her in the leg and left her bleeding in the
street. She spent three months recovering from her injury.
Second, in 2014, her brother was shot and killed in South
Africa. Arrey explained that in her village in Cameroon,
when a person dies, it is customary to bury him “in his land.”
Although she feared returning to Cameroon, she returned
with her brother’s body, using community donations to pay
for the trip. Arrey believed that she was the only person who
could return her brother’s body because her parents died in
2008.
To avoid being abused by Thomas upon her return, Arrey
hid with her church community in Douala. But Thomas
knew that she had returned; her friends and family members
told him so after he threatened them. After some time,
Thomas found Arrey and attempted to rape her on the street
outside the church where she was hiding. Arrey was able to
escape. She did not report the incident to the police.
ARREY V. BARR 11
Following her encounter with Thomas, Arrey fled
Cameroon and traveled through Nigeria and Mexico to get
to the United States.
Arrey is not in contact with anyone in Cameroon, and
she does not know whether Thomas is presently searching
for her. Arrey is afraid to return to Cameroon because she
fears Thomas and the Cameroonian police. Arrey is also
afraid that she would be forced to undergo female genital
mutilation in Cameroon; she knows that the practice still
exists in her village and community, although it is typically
practiced on girls soon after they reach the age of maturity
and not on older women.
In addition to her fears of returning to Cameroon, Arrey
testified that she fears returning to South Africa, because of
the “bad things she saw in South Africa,” including “a lot of
blood.”
C
In an oral decision, the IJ denied Arrey’s claims and
ordered her removed to Cameroon. He found that Arrey had
not provided credible testimony, doubting that her passport
was stolen and that she experienced decades of abuse
without reporting it or leaving.
The IJ also found that Arrey was permanently resettled
in South Africa between 2007 and 2014. Based on that
finding, the IJ reasoned that he should only consider the
abuse Arrey suffered following her return to Cameroon in
2014.
The IJ then concluded that Arrey had not suffered past
persecution on the ground that she was not in a relationship
with Thomas upon her return to Cameroon; instead, it was
12 ARREY V. BARR
as if Arrey experienced “random crimes against women,”
which the IJ held did not qualify as persecution on account
of a protected ground. Likewise, the IJ determined that
Arrey’s fear of Thomas amounted to a general fear of
violence against women. The IJ rejected Arrey’s fear that
she would be subjected to female genital mutilation in
Cameroon, because the Country report established that there
were no credible reports of Cameroonian women over the
age of eighteen being subjected to female genital mutilation.
On the basis that Arrey had not established that she
suffered persecution based on a protected ground, the IJ
concluded that Arrey necessarily had not met her burden of
establishing that she merited withholding of removal.
On Arrey’s claim for protection under CAT, the IJ
determined that Arrey’s fear was of Thomas, and not of the
Cameroonian government or any public official. The IJ
noted that Arrey had never reported the abuse she claimed to
suffer to the Cameroonian police. The IJ also rejected
Arrey’s claim that Thomas would be able to find her
anywhere in Cameroon, despite Arrey’s contention that
Thomas was well-connected. The IJ explained that
Thomas’s connections would not make Arrey easily
identifiable in Cameroon or make her location easily known
to Thomas, especially if she relocated to another part of
Cameroon.
Arrey, represented by Richey, filed an administrative
appeal of the IJ’s decision.
D
The Board issued a written decision on Arrey’s appeal.
Significantly, in our view, the Board rejected the IJ’s adverse
ARREY V. BARR 13
credibility determinations as clearly erroneous and assumed
Arrey was credible.
The Board agreed that Arrey had resettled in South
Africa before she “voluntarily” returned to Cameroon in
2014. Like the IJ, the Board reasoned that because Arrey
was firmly resettled in South Africa, “her claim for asylum
from Cameroon relates only to the events after she returned.”
The Board rejected Arrey’s argument that she was
persecuted in South Africa on the basis that it was irrelevant,
because she was not going to be removed to South Africa.
The Board then held that Arrey had not demonstrated
that the harm she suffered in Cameroon upon her return in
2014threats and one attempted assault of raperose to the
level of past persecution. In addition, the Board concluded
that Arrey had not shown a nexus between the harm she
experienced or feared and a protected ground, because Arrey
did not claim to be in a domestic relationship with Thomas
after she returned in 2014. Finally, the Board agreed that
Arrey did not have an objectively reasonable fear of being
forced to undergo female genital mutilation in Cameroon
due to her age. 1
1
Notably, the 2015 Report on which both the IJ and the Board based
their decisions states that“[u]nlike in previous years, there were no
credible reports of women ages 18 and above being subjected to” female
genital mutilation. But Arrey does not argue that the earlier reports,
which report adult women being subjected to female genital mutilation,
support her reasonable fear. See U.S. Dep’t of State, Cameroon 2013
Human Rights Report 24, https://www.justice.gov/sites/default/files/
eoir/legacy/2014/04/09/Cameroon.pdf (last visited Dec. 4, 2018). On
appeal, she does not contest the finding that she did not have an
objectively reasonable fear of female genital mutilation.
14 ARREY V. BARR
Based on those conclusions, the Board affirmed the IJ’s
denial of asylum. The Board also determined that because
Arrey had not met her burden of proof with regard to asylum,
she necessarily did not qualify for withholding of removal.
The Board affirmed the IJ’s denial of CAT protection. It
reasoned that Arrey had not shown that it was more likely
than not that Thomas would find her and torture her were she
to relocate. The Board agreed with the IJ that Arrey’s
contention that Thomas was a well-connected businessman
did not mean that she could not safely relocate within
Cameroon to avoid him.
Lastly, the Board concluded that Arrey had not
demonstrated good cause for another continuance and
affirmed the IJ’s denial of relief and protection in Arrey’s
case and dismissed her appeal. Arrey timely appealed.
II
We examine the BIA’s “legal conclusions de novo and
its factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (citations omitted). We “cannot affirm the BIA on
a ground upon which it did not rely.” Navas v. I.N.S.,
217 F.3d 646, 658 n.16 (9th Cir. 2000).
III
A
We first address Arrey’s due process challenges.
Petitioners in immigration proceedings have a
constitutionally-protected right to a full and fair hearing. See
Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012);
Barraza Rivera v. I.N.S., 913 F.2d 1443, 1447 (9th Cir.
ARREY V. BARR 15
1990). Arrey contends that her right to a full and fair hearing
was violated because she was denied her rights to
(1) retained counsel and (2) an unbiased fact finder. We
reject those contentions.
1
Both Congress and our court have recognized the right
to retained counsel as being among the rights that due
process guarantees to petitioners in immigration
proceedings. 8 U.S.C. § 1362 (codifying the right to counsel
in immigration proceedings); Gomez-Velazco v. Sessions,
879 F.3d 989, 993 (9th Cir. 2018) (“The right to be
represented by counsel at one’s own expense is protected as
an incident of the right to a fair hearing under the Due
Process Clause of the Fifth Amendment.”).
Arrey did not explicitly waive her right to counsel at the
April 6 hearing. “In order for a waiver to be valid, an IJ must
generally: (1) inquire specifically as to whether petitioner
wishes to continue without a lawyer; and (2) receive a
knowing and voluntary affirmative response.” Tawadrus v.
Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citations
omitted).
Here, those elements were not met, so there was no
knowing and intelligent waiver of the right to counsel.
Although the IJ repeatedly asked Arrey whether she would
like to continue without her lawyer, she never gave her
knowing and voluntary assent. Even when asked to choose
16 ARREY V. BARR
between continuing with the hearing and an automatic order
of removal, she did not consent. 2
When a petitioner does not waive the right to counsel,
“IJs must provide [the petitioner] with reasonable time to
locate counsel and permit counsel to prepare for the
hearing.” Biwot vs. Gonzalez, 403 F.3d 1094, 1098–99 (9th
Cir. 2005) (citing Rios–Berrios v. I.N.S., 776 F.2d 859, 862–
63 (9th Cir. 1985)). The IJ’s decision not to continue a
hearing is reviewed for abuse of discretion, but we have
warned that we will not “allow a ‘myopic insistence upon
expeditiousness’ to render the right to counsel ‘an empty
formality.’” Biwot, 403 F.3d at 1099 (quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964)).
“No bright line guides our consideration of what
constitutes reasonable time.” Biwot, 403 F.3d at 1099. The
inquiry is fact-specific:
We pay particular attention to the realistic
time necessary to obtain counsel; the time
2
To the contrary, Arrey explicitly answered “no” at least twice when
the IJ inquired whether she would like to proceed without counsel. At
the outset, the IJ asked, “Ma’am, are you ready to proceed today?” and
Arrey told him, “my attorney said he will come.” Next, the IJ asked,
“Did you want to go forward by yourself today, ma’am?” and Arrey
responded, “Your Honor, no.” After further discussion, the IJ asked,
“are you going to be presenting evidence today, ma’am?” and she
responded, “Your Honor, I don’t know,” and suggested that her attorney
might have called in. The IJ then asked Arrey to choose between going
forward by herself or being ordered removed. She responded, “Your
Honor, I think you are the good one to take the decision.” Later, he
asked, “do you want to present a case today,” and she said “Your Honor,
I’m not ready.” Finally, he said, “So, what do you want to do? Your
choices are go forward today by yourself or finish your case with an
order of removal today.” She said, “I can [indiscernible].”
ARREY V. BARR 17
frame of the requests for counsel; the number
of continuances; any barriers that frustrated a
petitioner’s efforts to obtain counsel, such as
being incarcerated or an inability to speak
English; and whether the petitioner appears
to be delaying in bad faith.
Id. A petitioner is not denied the right to counsel where
“continuing the hearing would have been futile” or where
“the IJ had done everything he reasonably could to permit
[the petitioner] to obtain counsel.” Id. at 1099−1100 (citing
Vides-Vides v. I.N.S., 783 F.2d 1463, 1469–70 (9th Cir.
1986)); see also Hernandez-Gil v. Gonzalez, 476 F.3d 803,
805−08 (9th Cir. 2007) (“When [a petitioner] has engaged
counsel and the IJ is aware of the representation, if counsel
fails to appear, the IJ must take reasonable steps to ensure
that the [petitioner’s] statutory right to counsel is honored.”).
We hold that the IJ in this case provided Arrey with
reasonable time to locate counsel. Although Arrey was
detained during the proceedings, the IJ granted several
continuances so that she could acquire an attorney. 3 And
when her lawyer Richey did not appear at her final hearing,
the IJ called Richey’s office. The IJ also repeatedly warned
Arrey that the IJ would not continue her case any further;
Arrey, who had indicated that English was her best language,
was on notice of the consequences.
3
The IJ granted four continuances to allow Arrey to obtain counsel.
The continuance from January 27 to March 28, however, appears to have
been the result of the IJ’s scheduling availability.
18 ARREY V. BARR
2
Arrey also contends that she was denied her right to an
unbiased fact finder. See Reyes-Melendez v. I.N.S., 342 F.3d
1001, 1006 (9th Cir. 2003) (“The Due Process Clause
requires that [petitioners] threatened with deportation are
provided with the right to a full and fair hearing. A neutral
judge is one of the most basic due process protections.”
(internal quotation marks and citations omitted)). Although
an IJ may “aggressively and sometimes harshly” question a
witness, Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th
Cir. 2003), he or she may not become a “partisan adjudicator
seeking to intimidate” the petitioner rather than “a neutral
fact-finder interested in hearing the petitioner’s evidence,”
Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000). A
petitioner must show that the denial of his or her right to a
neutral fact-finder “potentially affected the outcome of the
proceedings.” Colmenar, 210 F.3d at 972 (internal quotation
marks and alteration omitted).
The IJ in this case was rude and harsh with Arrey. He
badgered Arrey, accused her of selfishness and bad faith, and
threatened to enter an order of removal. But, Arrey has not
shown that the harshness or rudeness prejudiced her: Despite
his harshly expressed and excessive frustration, the IJ held a
complete hearing and made a thorough decision that fully
examined the underlying factual matters. And, crucially,
although the IJ made a questionable adverse credibility
finding against Arrey, any prejudice from that was cured by
the Board’s subsequent decision assuming the credibility of
her testimony in full.
B
We now address Arrey’s contention that the Board
misapplied the “firm resettlement rule.” That rule holds that
ARREY V. BARR 19
an applicant may not be granted asylum if he or she “was
firmly resettled in another country prior to arriving in the
United States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see also Su
Hwa She v. Holder, 629 F.3d 958, 962 (9th Cir. 2010),
superseded by statute on other grounds as stated in Ming
Dai v. Sessions, 884 F.3d 858, 867 n.8 (9th Cir. 2018).
Determining whether the firm resettlement rule applies
involves a two-step process: First, the government presents
“evidence of an offer of some type of permanent
resettlement,” and then, second, “the burden shifts to the
applicant to show that the nature of his [or her] stay and ties
was too tenuous, or the conditions of his [or her] residence
too restricted, for him [or her] to be firmly resettled.”
Maharaj v. Gonzales, 450 F.3d 961, 976–77 (9th Cir. 2006)
(en banc).
Here, the Board committed three errors in its application
of the firm resettlement rule. First, the Board improperly
concluded that Arrey had firmly resettled in South Africa. It
completed step one of the analysis, noting that Ms. Arrey
received an offer of refugee status. But it did not proceed to
step two to consider Arrey’s evidence that “the conditions of
[her] residence [were] too restricted[] for [her] to be firmly
resettled.” Maharaj, 450 F.3d at 976−77. In fact, the Board
explicitly declined to consider Arrey’s “claim[] that she
experienced past persecution in South Africa, and that she
will not be safe there.” 4 That evidence could rebut the
4
The Board’s error in this respect is exacerbated by an oddity in this
case: Arrey has been ordered removed not to South Africa—where she
allegedly had firmly resettled—but to Cameroon. See Mengstu v.
Holder, 560 F.3d 1055, 1060 (9th Cir. 2009) (rejecting finding that
Ethiopian firmly resettled in Sudan in part because “[t]he IJ himself
designated Ethiopia, rather than the Sudan, as the country of removal.”).
In most of our published decisions affirming application of the firm
resettlement rule, the applicant has been ordered to return to the country
20 ARREY V. BARR
finding of firm resettlement in light of our previous holding
that “firmly resettled aliens are by definition no longer
subject to persecution,” Yang v. I.N.S., 79 F.3d 932, 939 (9th
Cir. 1996). “Because of the evidence that [Arrey] may not
have found a haven from persecution in [South Africa,
Arrey] also has established at least a plausible claim that
[s]he is not firmly resettled in [South Africa].” Siong v.
I.N.S., 376 F.3d 1030, 1040 (9th Cir. 2004) (internal
quotation marks and citations omitted). The Board’s
decision to ignore that evidence made its firm resettlement
determination incomplete, and erroneous as a matter of law.
Second, the Board incorrectly applied the firm
resettlement rule not as a mandatory bar to Arrey’s claim for
asylum—as the regulations intend it to operate, 8 U.S.C.
§ 1158(b)(2)(A)(vi)—but instead as a limitation on the
evidence the Board considered in support of her claim. This
error infected both the Board’s past persecution and
protected ground analyses. It ignored the abuse Arrey
experienced at the hands of Thomas and the police before
where he or she was permanently resettled. See, e.g., Sung Kil Jang v.
Lynch, 812 F.3d 1187, 1189, 1193 (9th Cir. 2015) (upholding firm
resettlement rule applied to petitioner from North Korea, who was firmly
resettled in South Korea, and ordered removed to South Korea);
Nahrvani v. Gonzales, 399 F.3d 1148, 1152 (9th Cir. 2005) (upholding
firm resettlement rule applied to petitioner from Iran, who was firmly
resettled in Germany and ordered removed to Germany); Vang v. I.N.S.,
146 F.3d 1114, 1116–17 (9th Cir. 1998) (upholding firm resettlement
rule applied to petitioner from Laos who was firmly resettled in France
and ordered removed to Thailand, France, or Laos, in that order of
preference); Yang, 79 F.3d at 934, 936–37 (upholding firm resettlement
rule applied to petitioners from Laos, who were firmly resettled in
France, and ordered removed to France). But see Maharaj v. Gonzales,
450 F.3d 961, 966, 978 (9th Cir. 2006) (en banc) (remanding analysis of
firm resettlement rule applied to petitioner from Fiji, who resettled in
Canada, and was ordered removed to Fiji).
ARREY V. BARR 21
she left for South Africa. And it ignored Arrey and
Thomas’s relationship, which informed his reasons for
targeting her, her need to seek shelter with her friends to
avoid him, and the nature of his abuse. The firm resettlement
rule does not tell the Board to ignore evidence of the
petitioner’s persecution in a country to which she is to be
removed because she was for a while resettled, firmly or
otherwise, elsewhere. We conclude that doing so was
improper in this case. 5
Third, the Board erred by applying the firm resettlement
rule to limit the evidence it considered in support of Arrey’s
withholding of removal claims. The firm resettlement rule
does not apply to those claims. Siong, 376 F.3d at 1040–41.
So the firm resettlement rule could not bar otherwise
relevant evidence on Arrey’s withholding of removal claims.
We remand for proceedings consistent with this opinion.
See Gonzales v. Thomas, 547 U.S. 183, 185–86 (2006) (per
curiam) (holding that when the Board has not reached an
issue, this Court should remand to allow the Board to
consider the issue in the first instance).
5
It is true we have held that a petitioner’s “history of willingly
returning to his or her home country militates against a finding of past
persecution or a well-founded fear of future persecution.” Ming Dai v.
Sessions, 884 F.3d 858, 871 (9th Cir. 2018) (quoting Loho v. Mukasey,
531 F.3d 1016, 1017–18 (9th Cir. 2008)). But in this case, the Board did
not rely on that reasoning to rebut the presumption of a well-founded fear
of persecution, presumably because Arrey had good reasons to return to
Cameroon. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091–92 (9th
Cir. 2008) (holding that where purpose of return trips was to gather
income to flee permanently, trips did not rebut presumption of well-
founded fear).
22 ARREY V. BARR
C
Finally, we consider whether the Board erred in
determining that Arrey was able to safely relocate in
Cameroon to avoid future harm.
CAT prohibits the government from returning a person
to a country where it is “more likely than not” that he or she
will be tortured. 8 C.F.R. § 1208.16(c)(2). The torture must
be by government officials or private actors with
government acquiescence. Cole v. Holder, 659 F.3d 762,
771 (9th Cir. 2011). Unlike applications for asylum and
withholding of removal, “[a]n application for CAT relief
need not show that he will be tortured ‘on account of’ any
particular ground.” Id. at 770 (citing Kamalthas v. I.N.S.,
251 F.3d 1279, 1283 (9th Cir. 2001)). “In deciding whether
the applicant has satisfied his or her burden, the IJ must
consider all relevant evidence, including but not limited to
the possibility of relocation within the country of removal.”
Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015)
(en banc); see also 8 C.F.R. § 1208.16(c)(3).
Here, substantial evidence did not support the Board’s
conclusion that Arrey could safely relocate within Cameroon
to avoid future harm. The Board “agree[d] with the
Immigration Judge that the respondent’s argument that
[Thomas] is a ‘businessman’ and has lots of friends does not
mean that she could not safely and reasonably relocate to
avoid harm.” The Government now argues that this
determination is supported by substantial evidence because
“save for a singular encounter from which she escaped,
Arrey was able to avoid Thomas by living in a different city
when she returned,” “the record does not indicate that Arrey
would be unable to live in a different city than Mr. Thomas,”
and “the record does not indicate that Mr. Thomas has the
ARREY V. BARR 23
resources and ability to locate her anywhere within the
country.”
But that is not what the record indicates. Arreywhom
the Board found credibletestified that she could not escape
Thomas due to his connections. The Board did not rebut that
testimony with country conditions evidence or any other
evidence. Such bare speculation, without other support in
the record, cannot properly form the basis of an adverse
credibility finding, even in post-REAL ID Act cases. See
Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015)
(explaining that “an adverse credibility determination cannot
be based on complete speculation and conjecture,” but
holding that adverse credibility determination based on
inherent implausibility of petitioner’s account was
permissible because it was based on record evidence rather
than pure speculation).
Here, the record reflects that even when Arrey was in
hiding from Thomas in a different city, Thomas was able to
track her down. When he did, he attempted to rape her. In
light of that evidence, we must conclude that substantial
evidence did not support the Board’s determination that
Arrey was not likely to be tortured because she could safely
relocate within Cameroon.
We remand this claim for proceedings consistent with
our holding.
IV
The Petition for Review is GRANTED in part; the case
is REMANDED for further proceedings.