Arrey v. Barr, 16-73373

• Citation: 916 F.3d 1149
• Decision Date: 26 February 2019
• Docket Number: No. 16-73373,16-73373
• Parties: Delphine A. ARREY, AKA Arrey Delphine Ayamba, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

916 F.3d 1149

Delphine A. ARREY, AKA Arrey Delphine Ayamba, Petitioner,

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

No. 16-73373

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 18, 2018 San Francisco, California

Filed February 26, 2019

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

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX5-387

Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,^* District Judge.

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.

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 "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" 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 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, 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...