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.