WHEN IS A PERSON FIRMLY RESETTLED IN ANOTHER COUNTRY FOR ASYLUM PURPOSES?

Weekly Blog for March 1, 2019 by Merle Kahn, Esq.

This week the Ninth Circuit issued one immigration case.  The case revolves around when is a person firmly resettled in another country for asylum purposes.  But this case is a difficult one to blog about because the facts are so upsetting.  Both what happened to this woman in her home country of Cameroon and how the Immigration Judge (IJ) treated her in proceedings are horrifying.  The Ninth Circuit remanded the case to the Board of Immigration Appeals (BIA) to reconsider the noncitizen’s applications for asylum and withholding of removal.  They found that the BIA erred as a matter of law in its analysis and application of the “firm resettlement” rule and erred in finding that the noncitizen could not relief under the Convention Against Torture (CAT).  But the Ninth Circuit denied the noncitizen’s due process claims.

Facts

Delphine Arrey is a native and citizen of Cameroon (and it seems from the facts that she is one remarkable woman).  In October 2015, she used her Cameroonian passport in Nigeria to get a visa to Mexico.  After traveling to Mexico, she applied for admission to the United States at a port of entry in California.  She did not have her passport because the passport had been taken from her.  DHS charged her with being an immigrant who did not possess a valid entry document or passport and placed her in ICE detention.

Immigration Court Hearing

On December 3, 2015, Ms. Arrey appeared before an Immigration Judge (IJ).  Ms. Arrey asked for a continuance to get counsel.  The IJ continued her case for four weeks.  On December 30, 2015, the IJ held the second hearing, and Ms. Arrey said she had not yet been able to get an attorney.  “The IJ questioned whether Arrey had taken “any concrete actin” 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 v. Barr, No. 16-73373 slip op. at *5 (9th Cir. Feb. 26, 2019).  Questions aren’t that hard?  I have been practicing immigration law for over twenty-five years and I spent hours consulting with other attorneys and with the Center for Gender and Refugee Studies (CGRS) at UC Hastings, as well as reading a ton of asylum cases to craft a particular social group – for one case!  The questions aren’t that hard??  Ms. Arrey told him that she could not get an attorney in a week.  The IJ found that Ms. Arrey had not established good cause for a continuance and proceeded to take pleadings.  The IJ found Ms. Arrey was removable and told her that she could apply for asylum. 

On January 27, 2016, Ms. Arrey filed her asylum application.  It is not clear from the record if she had any help completing it.  The IJ scheduled her individual merits hearing for March 28, 2016.  (The two-month continuance was due to the IJ’s calendar.  It was not to give Ms. Arrey sufficient time to build her case).  At the hearing on March 28, 2016, Ms. Arrey appeared, and the DHS attorney told the IJ that attorney Ronald Richey had filed a motion for a continuance.  “The IJ asked her [Ms. Arrey] “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 vitriol 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.”  Arrey, slip op. at *6-7.  But the IJ continued the case until April 6, 2016.

One day before the rescheduled merits hearing, Mr. Richey moved to appear telephonically or in the alternative to withdraw as counsel and a list of intended evidence.  The IJ did not receive these filings before the hearing on April 6, 2016.  At the final hearing on April 6, 2016, Mr. Richey (needless to say) did not appear.  The IJ told Ms. Arrey that Mr. Richey had not filed a motion for a telephonic hearing.  But, after a contentious exchange, the IJ agreed to call Mr. Richey.  The IJ called the office, someone answered the phone and said that Mr. Richey was not in but should be back “any second.”  The IJ hung up the phone and told Ms. Arrey that either she could represent herself or take a removal order.  Ms. Arrey represented herself.

Asylum Claim

Ms. Arrey testified that she was born in Cameroon and lived with her family until she was twelve.  Female genital mutilation was practiced in her village, but her family was Roman Catholic and the practice was prohibited under her religion.  Her family sent her to live with friends, Jean Thomas, and his wife when she was twelve years old.  Ms. Arrey lived in the Thomas home for twenty-six years.  During that time Thomas sexually and physically abused her, he impregnated her and threatened to kill her.  He would not allow her to go to school.  He told her that her family would never see her corpse if she told anyone that he had impregnated her.  Thomas was an influential businessman in the community and he periodically would bring her to the local police station and accuse her of stealing things.  Ms. Arrey’s friends helped her flee from Cameroon and she was granted refugee status in South Africa where she remained for seven years.  In 2014, her brother was murdered in South Africa and she took his body back to Cameroon for burial.  While in Cameroon for the burial, she stayed in hiding from Thomas, but he found her and attempted to rape her on the street outside the church where she was hiding.  Arrey, slip op. at *10.  Ms. Arrey managed to flee to Nigeria, get a visa to Mexico and then make her way to the U.S. border where she applied for asylum. 

Legal Analysis

IJ’s Decision

The IJ denied Ms. Arrey’s claims and ordered her removed to Cameroon.  He found her not credible.  He also found that she was permanently resettled in South Africa from 2007 through 2014.  “Based on that finding, the IJ reasoned that he should only consider the abuse Arrey suffered following her return to Cameroon in 2014.”  Arrey, slip op. at * 11.  The IJ found that Ms. Arrey had not suffered past persecution because she was not in a relationship with Thomas upon her return to Cameroon.  Instead, the IJ found that Ms. Arrey experienced ““random crimes against women,” which the IJ held did not qualify as persecution on account of a protected ground.””  Arrey slip op. at *11-12.  The IJ found that Ms. Arrey’s fear of Thomas amounted to a general fear of violence against women.  The IJ rejected Ms. Arrey’s fear that she would be subject to female genital mutilation because the Country report established that there were no credible reports of Cameroonian women over the age of eighteen being subject to female genital mutilation.  (Yet another reminder of how important the U.S. Department of State Country Condition Reports are for our clients).

The IJ found that because Ms. Arrey did not qualify for asylum, she did not qualify for withholding of removal.  He found that she did not qualify for CAT protection because Ms. Arrey’s fear was of Thomas and not of the Cameroonian government or any public official.  Ms. Arrey, represented by Mr. Richey, appealed the decision to the BIA. 

BIA’s Decision

The BIA reversed the IJ’s adverse credibility determinations as clearly erroneous and assumed that Ms. Arrey was credible.  The BIA found that Ms. Arrey had resettled in South Africa before she voluntarily returned to Cameroon.  The IJ had found that she was firmly resettled in South Africa and they rejected her argument that she would be persecuted in South Africa as irrelevant, because the U.S. government was not going to remove her to South Africa.  The BIA then held that Ms. Arrey had not demonstrated past persecution as the harm she suffered in Cameroon upon her return in 2014 – threats and one attempted rape – did not rise to the level of past persecution.  (You just have to wonder how many attempted rapes it takes to constitute past persecution).  The BIA concluded that Ms. Arrey had not established a nexus between the harm she experienced and feared and a protected ground.  Finally, the BIA found that Ms. Arrey did not have an objectively reasonable fear of being forced to undergo female genital mutilation because of her age.  In a footnote the Ninth Circuit notes that the country condition reports on female genital mutilation for women over the age of eighteen in Cameroon are contradictory. 

The BIA affirmed the denial of asylum and withholding and the denial of CAT protection.  The BIA found that Ms. Arrey’s contention that Thomas was a well-connected businessman did not mean that she could not safely relocate within Cameroon to avoid him.  Finally, they concluded that she had not demonstrated good cause for another continuance.  Ms. Arrey appealed to the Ninth Circuit. 

Ninth Circuit’s Decision

The Ninth Circuit rejected Ms. Arrey’s argument that her right to a full and fair hearing was denied because she had been denied her rights to retained counsel and to an unbiased fact finder.  The Ninth Circuit noted that there was no knowing and intelligent waiver of the right to counsel.  “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.”  Arrey, slip op. at *17.  The Ninth Circuit noted in a footnote that IJ granted Ms. Arrey four continuances to obtain counsel.  But they noted that the continuance from January 27 to March 28 was due to the IJ’s scheduling availability. 

The Ninth Circuit also denied Ms. Arrey’s claim that her due process right to a neutral fact finder was violated.

“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.”

Arrey, slip op. at *18.

After finding that Ms. Arrey had established no due process violations, the Ninth Circuit then examined her contention that the BIA misapplied the firm resettlement rule.  An applicant may not be granted asylum if they were firmly resettled in another country before arriving in the United States.  INA § 208(b)(2)(A)(vi).  The Ninth Circuit held that in determining whether a noncitizen has been firmly resettled first the government must present evidence of an offer of some type of permanent resettlement.  Once the government meets its burden, the noncitizen must establish that the nature of their stay and ties were too tenuous or the conditions of their residence were too restricted for them to be firmly resettled.  Maharaj v. Gonzales, 450 F.3d 961, 976-77 (9th Cir. 2006) (en banc). 

The Ninth Circuit found that the BIA made three errors in finding that Ms. Arrey was firmly resettled in South Africa.  First, they only completed step one of the two step analysis.  They found that Ms. Arrey had received an offer of refugee status but did not consider whether the conditions of her residence were too restricted for her to be firmly resettled.  The BIA explicitly declined to consider her claim that she had experienced past persecution in South Africa and would not be safe there.  The Ninth Circuit noted that the BIA’s decision was “exacerbated by an oddity in this case:  Arrey had been ordered removed not to South Africa – where she allegedly had firmly resettled -but to Cameroon.”  Arrey, slip op. at *19 n. 4.  The Ninth Circuit noted that in most firm resettlement cases, the noncitizen had been ordered removed to the country of firm resettlement.  The Ninth Circuit noted 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).  “The Board’s decision to ignore evidence made its firm resettlement determination incomplete, and erroneous as a matter of law.”  Arrey, slip op. at *20. 

The Ninth Circuit next noted that the BIA incorrectly applied the firm resettlement rule not as a mandatory bar to her claim for asylum but as a limitation on the evidence the BIA considered in support of her claim.  Then the Ninth noted that the BIA erred by applying the firm resettlement rule to limit the evidence it considered in support of Ms. Arrey’s withholding of removal claim.  The firm resettlement rule does not apply with withholding. 

Finally, the Ninth Circuit considered whether the BIA erred in determining that Ms. Arrey could relocate within Cameroon to avoid future harm.  The Ninth Circuit noted that CAT prohibits the government from returning a person to a country where it is more likely than not that the they will be tortured by government officials or private actors with government acquiescence.  The Ninth Circuit found that substantial evidence did not support the BIA’s conclusion that Ms. Arrey could safely relocate within Cameroon to avoid future harm.  Ms. Arrey testified that she could not hide from Thomas due to his connections.  In fact, when Ms. Arrey was in hiding from Thomas, he tracked her down and then 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.”  Arrey, slip op. at * 23.  The Ninth Circuit remanded the case.  Arrey v. Barr, No. 16-73373 (9th Cir. Feb. 26, 2019).