Addo v. Barr

• Decision Date: 14 December 2020
• Docket Number: No. 18-9560,18-9560
• Citation: 982 F.3d 1263
• Parties: Joachim O. ADDO, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

982 F.3d 1263

Joachim O. ADDO, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 18-9560

United States Court of Appeals, Tenth Circuit.

FILED December 14, 2020

Kari E. Hong, Boston College Law School, Newton, MA on behalf of Petitioner.

Scott Stewart, Deputy Assistant Attorney General, U.S. Department of Justice Civil Division, Washington, D.C., (Joseph H. Hunt, Assistant Attorney General, Greg D. Mack, Senior Litigation Counsel, Terri J. Scadron, Assistant Director, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C on the briefs) on behalf of Respondent.

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.

HARTZ, Circuit Judge.

Petitioner Joachim Addo is a native and citizen of Ghana. The Board of Immigration Appeals (BIA) affirmed the denial by an immigration judge (IJ) of his application for asylum, withholding of removal,¹ and protection under the Convention Against Torture (CAT). In the briefs on his petition for review by this court, he challenges the denial of asylum and withholding of removal, arguing that substantial evidence does not support the BIA's determination that he could successfully avoid future persecution by relocating within Ghana.² Exercising jurisdiction under 8 U.S.C. § 1252(a), we agree with Petitioner that the decision on his ability to safely relocate is unsupported by substantial evidence. We grant the petition for review and remand to the BIA for further proceedings.

I. BACKGROUND

A. Factual Background

In January 2017 Petitioner entered the United States. He expressed a fear of returning to Ghana and was granted a credible-fear interview. An asylum officer determined that Petitioner was credible and referred his case to adjudication.

At a hearing in June 2017 the IJ determined that Petitioner was removable. Petitioner indicated, however, that he wished to apply for asylum, so the IJ scheduled a hearing to consider the asylum claim. Petitioner filed an application for asylum, withholding of removal, and protection under the CAT. He relied on the following evidence:

Petitioner is the son of the chief of the Challa tribe. The tribe is small, with a population of about 4000. It is based in and around the town of Nkwanta, in eastern Ghana near the border with Togo. For several years the Challa have been in a land dispute with another tribe, the Atwode.³

The Atwode tribe is larger than the Challa, with 10,000 to 15,000 members. But the Challa control more land in the Nkwanta district, and in the past they often leased land to the Atwode. Starting in 2005 the Atwode began violating the lease terms and customs. Petitioner's father therefore instructed the Challa to stop leasing land to the Atwode, and he took the Atwode to court over the land disputes, winning every case. The Atwode responded with violence against the Challa and vowed to eliminate Petitioner's father and family. This led to several violent incidents perpetrated by the Atwode against Petitioner and other members of his family, which we summarize here.

In 2012 six Atwode men stopped Petitioner at gunpoint in Nkwanta and beat him with sticks, breaking his legs. The men told Petitioner that they wanted to cripple him so that he could not lead the Challa in the future. The next day, Petitioner's two brothers were attacked by the Atwode while on their way to visit Petitioner.

One brother suffered a broken collarbone and internal bleeding, the other a slashed cheek.

About two months later the Atwode attacked Petitioner's father in his home. They attempted to shoot him, but the gun failed. Petitioner's father reported the attack to the police, who arrested the gunman. In retaliation for the arrest, several members of the Atwode went to the home of Petitioner's father, where they destroyed property and threatened to behead Petitioner's father. The police did not respond, but members of the military who were in the area intervened to protect Petitioner's father.

Shortly after these attacks, Petitioner and his father agreed that, for his own safety, Petitioner would relinquish his position as heir-apparent to the Challa chiefdom and would move from Nkwanta to Accra, the capital of Ghana. But this did not stop the Atwode. In August 2014 several Atwode men showed up at Petitioner's home in Accra. When Petitioner's wife said that he was not at home, the men beat her. They told her to "tell [Petitioner] to advise his father to stop taking our people to court." Certified Administrative Record (CAR) 484 (internal quotation marks omitted). In response to this attack Petitioner moved to a different part of Accra, but after moving he received a text message saying that the Atwode knew his new address and that moving would not help him.

In November 2014 the Atwode assassinated Petitioner's uncle. That same day, Atwode men came to Petitioner's home in Accra. His wife, trying to mislead the men, said that Petitioner was on his way back to Nkwanta. The Atwode then burned down Petitioner's house in Nkwanta.

Petitioner and his brothers continued to receive death threats via phone calls and text messages. In June 2016 Petitioner moved again, but the threats continued and became significant enough that Petitioner and his brothers began thinking about leaving Ghana. An example of these threats, documented in a police report filed by one of Petitioner's two brothers, is a text message telling the brother that "if you don't stop aiding [your father], we w[ill] bath[e] you with acid. We are monitoring you and would locate you anywhere you go." CAR 453. In response to these escalating threats, Petitioner's wife left Ghana for Kenya in September 2016, and his two brothers left the country in December 2016 and January 2017. One brother went to the Ivory Coast and the other moved to Benin.

In the middle of one night in late January 2017, when Petitioner was already preparing to leave Ghana, two gunshots were fired into his bedroom. He inferred that members of the Atwode had fired the shots because of death threats he received from the Atwode via text message. He escaped harm because at the time of the shooting he was in another room taking care of an ill son. Immediately after this incident Petitioner left Ghana. He took his children to Togo, then went on to the United States himself.

As leader of the Challa tribe, Petitioner's father continues to live in Nkwanta. A number of Challa tribesmen, including retired members of the military, live with Petitioner's father to provide him with constant protection. Petitioner's mother and six of his sisters also remain in Ghana, the sisters in Accra.

B. Procedural History

The IJ denied Petitioner's application for asylum, withholding of removal, and protection under the CAT. Although the IJ found Petitioner credible, the IJ concluded that he had failed to show that he was persecuted on the basis of a protected ground because he had not proved that his father was the leader of the Challa tribe.

Petitioner appealed to the BIA, which determined that Petitioner had sufficiently proved that his father was chief. The BIA explained that Petitioner was therefore entitled to a presumption that he had a well-founded fear of future persecution. It remanded the case to the IJ to assess whether the government could rebut this presumption by showing that Petitioner could safely and reasonably relocate within Ghana.

On remand the Department of Homeland Security (DHS) submitted the following additional evidence to prove that Petitioner could relocate within Ghana: (1) a profile of Ghana from an organization called the Joshua Project containing information about the population of different tribal groups within the country; (2) a World Factbook entry containing information about Ghana's population, ethnic breakdown, and geography; (3) a profile of the Atwode tribe stating that the tribe is based in the Nkwanta district and that some members migrate to other parts of Ghana, "especially to Accra, Kumasi and the larger towns of the Volta region," CAR 111; and (4) a letter from a researcher at the Library of Congress that discusses Nkwanta, including the region's history of ethnic conflict, and states that there is no information suggesting any legal impediment to internal relocation within Ghana.

The IJ again denied Petitioner's application for asylum, withholding of removal, and protection under the CAT, ruling that the government had met its burden to establish that Petitioner could successfully relocate within Ghana. He again appealed the IJ's decision on all three forms of relief. The BIA dismissed the appeal on the ground "that any presumption of future persecution has been rebutted by evidence demonstrating that [Petitioner] could internally relocate." CAR 3. Because it affirmed on that ground, the BIA declined to address Petitioner's other arguments. He then filed this petition for review.⁴

II. DISCUSSION

A. Standard of Review

"[W]e review the BIA's decision as the final agency determination and limit our review to issues specifically addressed therein." Diallo v. Gonzales , 447 F.3d 1274, 1279 (10th Cir. 2006). But "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). "This is especially appropriate where," as in this case, "the BIA incorporates by reference the IJ's rationale or repeats a condensed version of its reasons while also relying on the IJ's more complete discussion." Id.

"We consider any legal questions de novo, and we review the agency's findings of fact under the substantial evidence standard." Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004). Under the substantial-evidence standard, "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). The question whether a noncitizen can...