Akosung v. Barr

• Decision Date: 14 August 2020
• Docket Number: No. 17-72829,17-72829
• Parties: Yvette Ngmenang AKOSUNG, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

970 F.3d 1095

Yvette Ngmenang AKOSUNG, Petitioner,

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

No. 17-72829

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2020 Phoenix, Arizona

Filed August 14, 2020

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX9-271

Before: Susan P. Graber, Andrew D. Hurwitz, and Eric D. Miller, Circuit Judges.

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. 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.

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. § 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 "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).

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...