Yvette Akosung v. William Barr

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YVETTE NGMENANG AKOSUNG, No. 17-72829

Petitioner,

Agency No.

v. A209-129-271

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 3, 2020

Phoenix, Arizona

Filed August 14, 2020

Before: Susan P. Graber, Andrew D. Hurwitz,

and Eric D. Miller, Circuit Judges.

Opinion by Judge Miller

2 AKOSUNG V. BARR

SUMMARY *

Immigration

Granting Yvette Akosung’s petition for review of the

Board of Immigration Appeals’ decision affirming the denial

of asylum and related relief, and remanding, the panel held

that substantial evidence did not support the Board’s

determinations that: 1) Akosung could relocate within

Cameroon to avoid future persecution or torture;

2) Akosung’s proposed social group of “women resistant to

forced marriage proposals” lacked social distinction; and

3) Akosung failed to establish a clear probability of torture

with government acquiescence.

The panel concluded that Akosung’s ability to elude her

pursuers at great effort and risk, while in hiding, did not

establish that she would be able to avoid persecution or

torture by relocating within Cameroon.

The panel also concluded that the record did not support

the Board’s determination that Akosung’s proposed social

group lacked social distinction. The panel explained that to

the extent the Board’s decision rested on a requirement of

ocular visibility, it was inconsistent with Board precedent.

The panel further concluded that to the extent the Board

found that Akosung’s proposed group was not regarded as

distinct in Cameroonian society, that finding was

inconsistent with Akosung’s testimony. The panel rejected

the government’s contention that Akosung waived any

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

AKOSUNG V. BARR 3

challenge to the Board’s social distinction determination by

redefining her proposed social group in her briefs to this

court, concluding that her challenge was sufficiently

presented to permit review.

The panel concluded that the Board’s denial of CAT

protection was flawed because the Board failed to consider

evidence pertaining to government acquiescence; it placed

too much weight on the absence of past torture, without

taking into account evidence that Akosung avoided such

harm by fleeing and going into hiding; and it limited its

analysis to the threat of violence Akosung might face for

resisting marriage, while overlooking the threat of violence,

including possible rape, she would face if forced to marry.

COUNSEL

Benjamin T. Wiesinger (argued), Pope & Associates PC,

Phoenix, Arizona, for Petitioner.

Lindsay Pickell (argued), Attorney; Justin R. Markel, Senior

Litigation Counsel; Carl H. McIntyre, Assistant Director;

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C.; for

Respondent.

4 AKOSUNG V. BARR

OPINION

MILLER, Circuit Judge:

Yvette Akosung fled her Cameroonian village after she

was ordered to marry the village chieftain, known as the Fon.

For more than a year, she lived in hiding, moving from place

to place to avoid capture. The Fon’s envoys pursued

Akosung and threatened punishment to anyone who

harbored her. Akosung ultimately made her way to the

United States, where she applied for asylum, withholding of

removal, and protection under the Convention Against

Torture (CAT).

The immigration judge denied relief on all claims. The

Board of Immigration Appeals then dismissed Akosung’s

appeal, prompting this petition for review. Because the

Board’s reasoning does not account for Akosung’s credible

testimony and otherwise rests on errors of law, we grant the

petition for review and remand for further proceedings.

I

The immigration judge found Akosung to be credible,

determining that her “testimony was believable, consistent,

and sufficiently detailed to provide a plausible, coherent

account of the basis for her fears.” We therefore set out the

facts as Akosung described them.

Akosung is a native and citizen of Cameroon. Now in her

late twenties, she was born in a village in northwest

Cameroon near the city of Bamenda. The village is ruled by

an all-male council.

When Akosung was a young child, her father died,

owing the Fon a debt that her family was unable to repay.

AKOSUNG V. BARR 5

Near the end of 2013, the Fon died. Upon the accession of a

new Fon, the council selected Akosung to marry the new Fon

to settle her father’s debt. The new Fon already had 40 or

50 other wives, and Akosung did not wish to join them. She

stated that she did not love the new Fon and would not marry

someone whom she did not love.

Akosung hoped that the council might change its mind,

but around June 2015, a delegation from the Fon’s palace

arrived at her house to retrieve her for marriage. They

brought ceremonial oil and a bracelet made of shells, which

symbolized that Akosung would become a wife of the Fon.

The custom was that once the bracelet was placed on a

woman, she could not remove it.

Akosung’s cousin advised her to run away. At the time,

Akosung was attending school to get a degree in nursing. For

the next two months, Akosung hid and attempted to continue

her nursing studies, but it was risky for her to appear in

public, so she could not always attend classes. During that

time, she learned that her family was subject to an

“injunction order,” under which their properties and funds

were seized, their crops were destroyed, and they were

restricted from attending social activities. No one was

permitted to talk to Akosung.

Around August 2015, Akosung fled to the city of

Douala, a day’s journey away, to hide with a relative. She

hid in Douala for about a year. But even there, word spread

that Akosung had refused to marry the Fon. The Fon had

circulated an edict: “If [Akosung] is seen anywhere, she has

to be taken back to the palace.” When her relative heard the

message, he asked Akosung to leave because he did not want

to face the consequences of harboring her.

6 AKOSUNG V. BARR

In September 2016, Akosung left Douala and went to

stay with a friend in the city of Bafut, which was close to her

home town. Almost immediately, word of her arrival leaked,

and another delegation from the palace came to fetch her.

Akosung’s brother helped her resist capture. After a physical

struggle, Akosung ran away and escaped to a city called

Mamfe, on the border with Nigeria. Her cousin reported the

altercation to the Bamenda police. The police said they could

not help because the “[t]he traditional ruler has the final

say,” and the decision of the council “cannot be challenged

before any authority.”

Akosung stayed in Mamfe for about a month. With the

help of a priest and a customs officer, she was able to cross

the border into Nigeria, then travel through Mexico to

Nogales, Arizona, where she arrived without documentation.

She asked for protection at the port of entry.

The Department of Homeland Security initiated removal

proceedings against Akosung. After a hearing, the

immigration judge issued an oral decision denying her

applications for asylum, withholding of removal, and

protection under the CAT.

The Board dismissed Akosung’s appeal. As to asylum

and withholding of removal, the Board determined that

Akosung had not shown “that she would be harmed upon

return to Cameroon on account of her membership in the

asserted particular social group of women resistant to forced

marriage proposals” and that, in any event, she “could

relocate to an area other than the small town where the fon

lives.” As to the CAT claim, the Board concluded that

Akosung “did not establish that it is more likely than not that

she will be tortured by, or ‘at the instigation of or with the

consent or acquiescence of a public official or other person

acting in an official capacity.’” (quoting 8 C.F.R.

AKOSUNG V. BARR 7

§ 1208.18(a)(1)); see id. § 1208.16(c). The Board also stated

that Akosung had not experienced past torture and that she

“could reasonably relocate to an area outside the fon’s

control, as she previously did for more than a year.”

II

We begin with the issue of relocation, which is common

to all of Akosung’s claims. The record reflects that Akosung

attempted to hide from her pursuers in several different areas

of Cameroon outside of her home village. In one instance,

she was able to hide with a relative for about a year. But

Akosung’s ability to elude her pursuers at great effort and

risk does not establish that she would be able to avoid

persecution or torture by relocating within Cameroon.

The asylum regulation makes asylum unavailable if

“[t]he applicant could avoid future persecution by relocating

to another part of the applicant’s country of nationality . . .

and under all the circumstances, it would be reasonable to

expect the applicant to do so.” 8 C.F.R.

§ 1208.13(b)(1)(i)(B). The regulation governing

withholding of removal contains similar text. See id.

§ 1208.16(b)(1)(i)(B). The CAT regulation does not bar

relief if an applicant could relocate, but it nevertheless

provides that assessing the likelihood of future torture

requires considering “[e]vidence that the applicant could

relocate to a part of the country of removal where he or she

is not likely to be tortured.” Id. § 1208.16(c)(3)(ii).

Unlike the asylum and withholding of removal

regulations, the CAT regulation does not include a reference

to the reasonableness of relocation, but we do not think that

anything turns on the distinction here. The government does

not suggest that the standards in the two regulations are

different, and it does not rely on the absence of the word

8 AKOSUNG V. BARR

“reasonable” in the CAT regulation. To the contrary, in its

discussion of Akosung’s CAT claim, the Board said that it

thought she “could reasonably relocate,” suggesting that it

views reasonableness as an element of that regulation as

well.

It hardly seems “reasonable to expect” one facing

persecution or torture to become a fugitive and live in hiding.

8 C.F.R. § 1208.13(b)(1)(i)(B); see Doe v. Attorney Gen. of

the United States, 956 F.3d 135, 154 (3d Cir. 2020). But even

setting that aside, we do not believe that an applicant can be

said to have the ability to “relocate” within her home country

if she would have to remain in hiding there. As a practical

matter, a living arrangement that involves hiding from the

authorities is necessarily impermanent. When used

intransitively, “relocate” most naturally refers to

resettlement or a change of residence, not the unstable

situation of one who must always be ready to flee. See

Oxford English Dictionary (3d ed. 2009),

https://www.oed.com/view/Entry/162002 (“[t]o move to a

new location, esp. in order to work; to resettle”); Random

House Webster’s Unabridged Dictionary 1628 (2d ed. 2001)

(“to change one’s residence or place of business; move”).

Moreover, living in hiding does little to establish that a

person is able to “avoid future persecution,” 8 C.F.R.

§ 1208.13(b)(1)(i)(B), or “is not likely to be tortured,” id.

§ 1208.16(c)(3)(ii). To the contrary, a person who lives in

hiding does so precisely because she continues to be in

danger of being captured and returned to face persecution or

torture. We therefore agree with other circuits that have held

that “[r]elocating to another part of the country does not

mean living in hiding.” Agbor v. Gonzales, 487 F.3d 499,

505 (7th Cir. 2007); accord Singh v. Sessions, 898 F.3d 518,

522 (5th Cir. 2018); Essohou v. Gonzales, 471 F.3d 518, 522

(4th Cir. 2006).

AKOSUNG V. BARR 9

The government contends that Akosung failed to exhaust

the argument that hiding does not amount to relocation. To

the contrary, Akosung argued to the Board that “there is no

safe place for [her] to internally relocate” because she would

be “hunted down” no matter her location. She emphasized

that the Fon’s orders were sent throughout the region,

making stable relocation impossible. And the Board

considered and rejected Akosung’s argument, concluding

that she had relocated by remaining hidden in Douala for a

year. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th

Cir. 2001) (en banc) (explaining that the exhaustion

requirement is satisfied if the Board in fact considered an

issue).

On the merits, the record does not support the Board’s

conclusion. We review the agency’s factual findings for

substantial evidence and may set aside a factual

determination only if the record compels a contrary

conclusion. 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-

Zacarias, 502 U.S. 478, 481 & n.1 (1992). But even under

that deferential standard, the agency’s conclusion is

unsustainable.

Akosung’s credible and unrebutted testimony establishes

that, during the period after she left home, she was hiding in

fear of her life and of being captured and taken to the palace

for a forced marriage. The Board relied on Akosung’s

longest stay, with her relative in Douala, but the relative

made Akosung leave when he learned that he would face

consequences for harboring her. Akosung’s living situations

were temporary and, in at least one instance, so precarious

that she had to engage in a physical struggle in order to

escape. The record does not demonstrate any safe relocation

in a place where the Fon’s writ did not run. See Arrey v. Barr,

916 F.3d 1149, 1161 (9th Cir. 2019). Because substantial

10 AKOSUNG V. BARR

evidence does not support the Board’s conclusion, we

remand for further consideration.

III

In rejecting Akosung’s claims for asylum and

withholding of removal, the Board also relied on its

determination that she did not belong to a group that

Cameroonian society recognizes as socially distinct and,

accordingly, that she could not show a well-founded fear of

persecution based on a protected ground. Because the record

cannot sustain the Board’s analysis of social distinction, we

grant the petition and remand on that issue as well.

To establish eligibility for asylum, an applicant must

demonstrate that she is a “refugee,” 8 U.S.C.

§ 1158(b)(1)(B)(i), which the Immigration and Nationality

Act defines as a person who is unable or unwilling to return

to her home country “because of persecution or a well-

founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or

political opinion,” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R.

§ 1208.16(b) (similar standard for withholding of removal).

The Board has previously interpreted the phrase “particular

social group” to refer to a group that is “(1) composed of

members who share a common immutable characteristic,

(2) defined with particularity, and (3) socially distinct within

the society in question.” Matter of M-E-V-G-, 26 I. & N.

Dec. 227, 237 (B.I.A. 2014). We have upheld the Board’s

interpretation as a reasonable resolution of statutory

ambiguity that is entitled to deference under Chevron U.S.A.

Inc. v. NRDC, Inc., 467 U.S. 837 (1984). See Garay Reyes v.

Lynch, 842 F.3d 1125, 1136–37 (9th Cir. 2016).

Although the Board has sometimes referred to the

requirement of social distinction in terms of “social

AKOSUNG V. BARR 11

visibility,” the Board clarified in Matter of M-E-V-G- that

“social visibility does not mean ‘ocular’ visibility.”

26 I. & N. Dec. at 240. “To be socially distinct,” the Board

explained, “a group need not be seen by society; rather, it

must be perceived as a group by society.” Id. It therefore is

not necessary that people in the society be “able to identify

the group’s members on sight.” Id.

In this case, the Board adopted the immigration judge’s

finding that “women resistant to forced marriage proposals”

are not a socially distinct group. The immigration judge

found it “difficult . . . to find how anyone in society would

be able to demonstrate or recognize [Akosung] as an

individual who has declined a marriage proposal from a

fon.” To the extent that that finding rests on a requirement of

ocular visibility, it is inconsistent with Matter of M-E-V-G-.

But even if we construe the Board’s statement as a

determination that the group is not regarded as distinct in

Cameroonian society, that determination appears to be

inconsistent with Akosung’s testimony. Akosung described

experiencing ostracism while fleeing the Fon; for example,

her relative asked her to leave Douala because he could be

fined for harboring her. She also testified that the Fon had

the power to enforce traditional laws and customs in other

towns and villages, even without a physical presence in those

places. That power was demonstrated in the case of another

woman Akosung described who was successfully hunted

down after refusing to marry the Fon. Akosung’s testimony

suggests that the status of a woman resisting a forced

marriage was recognized as distinct “within the society in

question,” and the Board should have taken it into account.

Matter of M-E-V-G-, 26 I. & N. Dec. at 237; see Flores Rios

v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015).

12 AKOSUNG V. BARR

The government does not defend the Board’s social-

distinction analysis on the merits but argues instead that

Akosung has waived any challenge to the Board’s

determination by redefining her proposed social group in her

briefs to this court. We disagree. Both the immigration judge

and the Board evaluated the proposed particular social group

of “women resistant to forced marriage proposals.” Before

the Board, Akosung proposed what the Board characterized

as “variations on” that group, and in this court, Akosung

characterized the group as “single, childless women in

Cameroon”—that is, the class of people who, by custom, are

eligible to be selected as wives of the Fon. Akosung argued

that “[n]one of these proposed social groups are any different

than others because . . . the only people in Cameroon who

must resist forced marriage are single, childless women.”

Although Akosung’s brief could have been clearer on the

point, we conclude that her challenge to the Board’s social-

distinction analysis was sufficiently presented to permit our

review. See Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir.

2004). We leave it up to the Board on remand to decide

whether it should exercise its discretion to consider the

cognizability of Akosung’s social group as she now

articulates it, or else address the proposed social group it

considered previously.

IV

Under the CAT regulations, the applicant bears the

burden of establishing that “it is more likely than not that he

or she would be tortured if removed.” 8 C.F.R.

§ 1208.16(c)(2). In rendering its decision, the Board must

consider “all evidence relevant to the possibility of future

torture.” 8 C.F.R. § 1208.16(c)(3); see Parada v. Sessions,

902 F.3d 901, 914–15 (9th Cir. 2018). In addition to the

potential for relocation, the Board offered several additional

AKOSUNG V. BARR 13

rationales for denying CAT relief. They are flawed in three

respects.

First, the Board stated that Akosung did not show that

any torture would be “by, or ‘at the instigation of or with the

consent or acquiescence of a public official.’” (quoting

8 C.F.R. § 1208.18(a)(1)); see id. § 1208.16(c). As reflected

in the regulation that the Board quoted, torture can occur

even if a government official does not commit the act

directly. The regulation requires only official acquiescence,

which exists when government officials “were aware of the

torture but ‘remained willfully blind to it, or simply stood by

because of their inability or unwillingness to oppose it.’”

Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)

(quoting Ornelas-Chavez v. Gonzalez, 458 F.3d 1052, 1060

(9th Cir. 2006)); see 8 C.F.R. § 1208.18(a)(7).

To the extent the Board analyzed the issue at all, its

recitation of the regulatory text provides no reasoned

consideration of government acquiescence. Because the

Board’s decision “relies in part on the immigration judge’s

reasoning,” we may review both decisions, but the

immigration judge’s decision is no sounder than the Board’s.

Jagtar Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014)

(quoting Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir.

2012)). The immigration judge reasoned that Akosung “has

not testified that she is being sought to be harmed by any

type of member of the actual Cameroonian government.”

Instead, she “simply fears some private actors such as her

tribal elders and the fon . . . . These are not official

government members.” Even assuming that the Fon is not

himself a government official, the immigration judge’s

analysis says nothing about the prospect of torture with the

acquiescence of a government official.

14 AKOSUNG V. BARR

Although neither the immigration judge nor the Board

discussed it, the record shows that local police were aware

of the Fon’s edicts and refused to interfere with traditional

customs, including forced marriage. Akosung’s credible

testimony establishes that the village council’s decisions

have the force of law and that local police believe they

“cannot be challenged.” The Board erred by failing to “give

reasoned consideration to that evidence.” Cole v. Holder,

659 F.3d 762, 772 (9th Cir. 2008).

Second, the Board emphasized that Akosung “has not

experienced past torture.” Past torture is a relevant

consideration in deciding whether an applicant faces a

likelihood of future torture. 8 C.F.R. § 1208.16(c)(3)(i); see

Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001). We

have explained that “past torture is ordinarily the principal

factor on which we rely when an applicant who has

previously been tortured seeks relief under the Convention.”

Nuru v. Gonzales, 404 F.3d 1207, 1218 (9th Cir. 2005). But

we have never held that CAT relief requires a finding of past

torture. The plain text of the regulation does not impose such

a requirement, but instead identifies evidence of past torture

as one item in a non-exclusive list of relevant factors.

We do not question that there are cases in which the lack

of past torture makes it less reasonable to believe that future

torture is likely. But here, Akosung’s credible testimony

established that the only reason she evaded physical attacks,

or any other harm from a forced marriage, is that she hid and

resisted capture by the Fon’s forces. When an applicant flees

and goes into hiding to avoid torture, it can hardly be said

that the absence of past harm negates the likelihood of future

torture. The Board ignored that highly probative and

unrefuted evidence in assessing Akosung’s CAT claim. See

Cole, 659 F.3d at 772.

AKOSUNG V. BARR 15

Third, the Board limited its analysis to the threat of

violence Akosung might face for resisting marriage to the

Fon, while overlooking the threat of violence she would face

if forced to marry him. We have previously held that “[r]ape

can constitute torture . . . [because it] is a form of aggression

constituting an egregious violation of humanity.” Avendano-

Hernandez v. Lynch, 800 F.3d 1072, 1079 (9th Cir. 2015)

(ellipsis in original) (quoting Zubeda v. Ashcroft, 333 F.3d

463, 472 (3d Cir. 2003)); see Xochihua-Jaimes v. Barr,

962 F.3d 1175, 1183 (9th Cir. 2020) (relying on Avendano-

Hernandez to conclude that “[r]ape and sexual assault may

constitute torture”). Here, the Board did not consider the

likelihood of rape at all, even though it is an obvious

concomitant of a forced marriage.

The government does not argue that marital rape should

be treated differently from other forms of sexual violence,

nor could it plausibly do so. Instead, it contends that

Akosung did not exhaust the argument before the agency.

But in her testimony, Akosung described herself as having

been “traumatized” by the prospect of a forced marriage to

the Fon, and she left little doubt about why. She recounted

in detail the example of another woman who had refused

marriage to the Fon, left the village, and married someone

else. Akosung repeatedly described how that woman was

tracked down and forced to return to the palace, abandon her

husband, and bear three of the Fon’s children. Akosung

further testified about girls who were forced into marriage

once they were of childbearing age. The implication of her

testimony was clear.

Beyond her testimony, Akosung’s brief to the Board

emphasized “the life of slavery led by those females taken as

wives of the Fon.” Akosung’s brief also underscored “the

grave threat to her life and freedom of being a slave-wife if

16 AKOSUNG V. BARR

she ever entered the Fon’s palace.” That was sufficient to put

the Board on notice of the issue. See Figueroa v. Mukasey,

543 F.3d 487, 492 (9th Cir. 2008). On remand, the Board

should consider the threat of rape in assessing whether

Akosung has established that she would be more likely than

not to be tortured if returned to Cameroon.

PETITION GRANTED and REMANDED.