Rosa Ortez-Cruz v. William Barr ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1439
ROSA DEL CARMEN ORTEZ-CRUZ,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: October 30, 2019 Decided: February 26, 2020
Before DIAZ, HARRIS, and RUSHING, Circuit Judges.
Petition for review granted in part, denied in part, and remanded by published opinion.
Judge Diaz wrote the opinion, in which Judge Harris and Judge Rushing joined.
ARGUED: Jeremy Layne McKinney, MCKINNEY IMMIGRATION LAW, Greensboro,
North Carolina, for Petitioner. Ann M. Welhalf, UNITED STATES DEPARMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Ann Marie Dooley, Jesse
Simon vanVoorhees Taft, MCKINNEY IMMIGRATION LAW, Greensboro, North
Carolina, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Stephen J. Flynn,
Assistant Director, Kathryn M. McKinney, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
DIAZ, Circuit Judge:
Rosa Del Carmen Ortez-Cruz, a Honduran native and citizen, seeks both
withholding of removal and protection under the Convention against Torture (the “CAT”).
If repatriated, she fears that her abusive ex-partner may try to kill her although he hasn’t
contacted her in many years.
Because Ortez-Cruz has suffered past persecution due to her membership in
particular social groups, the Board of Immigration Appeals recognized that she is entitled
to a presumption that her life or freedom will be threatened if she returns to Honduras (the
“future-threat presumption”), as required to qualify for withholding of removal. The Board
found that the government rebutted this presumption, however, by proving two conditions:
that Ortez-Cruz’s circumstances had fundamentally changed—i.e., that her ex-partner no
longer posed a threat—and that Ortez-Cruz can avoid harm by relocating within Honduras.
On these two alternative grounds, the Board denied withholding of removal. The Board
also denied her CAT claim.
We conclude that the Board erred in finding that the government rebutted the future-
threat presumption. It was the government’s burden to prove either condition that rebuts
the presumption, and the record doesn’t support a finding that it did so. Accordingly, we
vacate the Board’s denial of withholding of removal and remand with instructions that the
agency grant relief on that claim. We affirm the Board’s denial of Ortez-Cruz’s CAT
application, however, because the record supports the Board’s finding that she didn’t meet
the burden of proof for that claim.
2
I.
Ortez-Cruz entered this country illegally in or around January 2002. In September
2013, the Department of Homeland Security charged her with removability and issued a
notice to appear for a hearing. Ortez-Cruz conceded removability and applied for
withholding of removal and for protection under the CAT. 1
Ortez-Cruz testified through an interpreter at two hearings before an Immigration
Judge (“IJ”). 2 We begin by summarizing the testimony and evidence and then describe the
IJ’s and the Board’s decisions.
A.
Ortez-Cruz met her former partner, Jose Genaro Auceda, in 1997, in Tegucigalpa,
Honduras, when she was sixteen years old and he was about twenty-seven. They began a
relationship, moved in together, and had a son named Anthony. Auceda was controlling
and a heavy drinker. He would sometimes brandish his knife around her when drunk. One
time, he made her sit still on a chair while he emptied a two-liter soda bottle on her and
“pass[ed] his knife around [her] head and [her] shoulders.” A.R. 243. Another time, he
kicked her in the lower back and accused her of having an affair. She then left him for a
few days, renting a house a half-hour drive away from where Auceda lived, until he found
1
Had Ortez-Cruz applied for asylum, her application would have been untimely.
See 8 U.S.C. § 1158(a)(2)(B).
2
Ortez-Cruz successfully moved for the IJ who presided over her first hearing to
recuse himself, which led to the second hearing before a different IJ.
3
her and convinced her to return. She returned only because she was afraid that he would
do something worse to her if she didn’t. In 1999, the couple moved to San Pedro Sula,
Honduras.
According to Ortez-Cruz, Auceda (while in a drunken rage) stabbed her in the
abdomen in December 2000. She fell down and he then straddled her, brandished his knife,
threatened to kill her, said that “if you’re not mine, you’re not going to be anyone else’s,”
and stabbed her in her right arm near her elbow. A.R. 249. Her younger sister Ana (who
lived with them at the time) took her to the hospital, where she stayed for weeks. Hospital
records show that she had surgery to repair her abdomen wound.
Afterward, Ortez-Cruz lived with her sisters in Tegucigalpa (a four-hour drive from
where she had lived with Auceda) for eight months while she recovered from her wounds.
Auceda didn’t know where her sisters lived, and he didn’t contact Ortez-Cruz or her family
during this time. Ortez-Cruz didn’t report the attack to the police because she thought they
would do nothing, she did not want to hurt Auceda’s aging mother, and she feared that
Auceda could retaliate by harming her family. Other than Ana, Ortez-Cruz never told her
family about the stabbing because they liked Auceda and she feared they might defend
him.
Ortez-Cruz then worked in Mexico briefly before entering the United States, in
January 2002. She left her son Anthony with her mother in San Lorenzo, Honduras, a five-
hour drive from San Pedro Sula (where she had lived with Auceda) and a three-hour drive
from Tegucigalpa (where she suspects Auceda moved after the stabbing). Anthony lived
4
there for four years before coming to the United States, during which time Auceda did not
try to see him or gain custody.
After moving to this country, Ortez-Cruz lived briefly with a cousin in Virginia and
then in Washington, D.C. In 2003, a friend named Leticia told her that Auceda was in
Virginia looking for her and had said that if he found Ortez-Cruz and her new partner, he
would kill them both. In late 2003 or early 2004, Leticia told Ortez-Cruz that Auceda had
been deported to Honduras. Ortez-Cruz offered no other evidence that Auceda had ever
come to the United States. She also didn’t know Leticia’s last name, said that she had lost
touch with Leticia years ago, and produced no evidence corroborating Leticia’s existence.
At some point after this, Ortez-Cruz moved to North Carolina.
According to Ortez-Cruz, Auceda sent her and Anthony a Facebook message a few
weeks before her hearing, in 2016. They both ignored the messages. This was the only
time Auceda had contacted her since she left him in December 2000 (although Auceda had
sent other Facebook messages to Anthony), and she had not seen him since then. She
didn’t bring evidence of this Facebook message to her hearing, explaining that she didn’t
have her phone with her because she was told that she could not use it in the courtroom.
The IJ invited her to go to her car and get her phone, but there is no indication that she did
so.
Ortez-Cruz fears that if she returned to Honduras today, Auceda would kill her. He
frequently told her that if she was not his, she would not be anybody else’s. Her mother
has heard that Auceda remains in Honduras, but Ortez-Cruz has no other evidence of his
5
location. When asked where she would go in Honduras if she returned, she stated, “[a]fter
so many years of not being there, I do not have another house to go except my mother’s.”
A.R. 262. Her mother still lives in San Lorenzo. Auceda knows where her mother lives
but has not contacted her since Ortez-Cruz left Honduras. On cross-examination, the
government highlighted the lack of corroboration for Ortez-Cruz’s assertions that Auceda
came to the United States in 2003 and recently contacted her on Facebook.
Julie Owens, a domestic-violence and post-traumatic stress disorder (“PTSD”)
expert, testified on Ortez-Cruz’s behalf. 3 She explained that she had conducted a Mosaic
assessment (a “well-established scientific threat assessment” tool) and determined that this
case “demonstrated extreme threat and potential for ongoing threat . . . [b]ecause domestic
violence is a pattern of increasing frequency and severity over time, and the trajectory in
this case ended in an attempted murder.” A.R. 293. Therefore, in her view, “the only place
for this to go would be to murder.” A.R. 293.
The IJ asked Owens how Auceda’s drunkenness during his abuse should affect his
analysis of the threat Auceda poses in the future. Owens replied that Ortez-Cruz “was
beaten every week on a regular basis, and it escalated in frequency and severity.” A.R.
294. Further, Auceda told Ortez-Cruz that he would kill her if she ever left him, and there
was no indication that he was ever held accountable for his actions. Thus, Owens opined,
Auceda would likely try to kill Ortez-Cruz if he had the opportunity.
3
Ortez-Cruz was previously diagnosed with PTSD stemming from Auceda’s abuse.
6
The IJ then noted that almost sixteen years had passed since Auceda’s abuse, there
was no corroboration that he had ever come to the United States, and he had not tried to
contact Ortez-Cruz’s family in Honduras. In response, Owens stated that “we don’t have
evidence to suggest that this particular abuser has gotten any kind of intervention or that
there’s any evidence that he would be any less dangerous.” A.R. 295. She also observed
that Honduras is smaller than North Carolina in terms of land and that, in her thirty years
of experience, she had seen women living in North Carolina be stalked from the other side
of the state and even from other states. Additionally, she knew of cases where abusers
murdered women after twenty-eight years of no contact. Without evidence that Auceda
has been rehabilitated, he must be considered a lethal threat, in Owens’s view. Further,
Auceda’s lack of contact with Ortez-Cruz’s family is typical of serial abusers. Such
abusers often present a different persona to their victim’s family and friends so that family
and friends may trust the abuser and reveal information about the victim’s location.
Next, Owens discussed the conditions in Honduras. One study suggests that ninety-
six percent of murders of women are not prosecuted. Victims generally do not report
domestic violence because they are intimidated and the police lack resources to prosecute
abusers. Accordingly, victims in Honduras “are not considered safer if they move to
another part of the country.” A.R. 299.
Finally, when asked why Ortez-Cruz was able to recall incidents of abuse during
her testimony that she had failed to include in her previously filed declaration, Owens
testified that many victims of severe violence suffer psychogenic amnesia (i.e., amnesia
7
absent a known neurological cause). Questioning victims about their experiences may
trigger painful memories that they had previously repressed.
The government then briefly cross-examined Owens, who admitted that she had
never been to Honduras, had not researched Honduras much, and knew nothing about
Auceda other than what Ortez-Cruz has told her. Ortez-Cruz’s counsel then gave a brief
closing argument, the government waived its closing, and the IJ adjourned the hearing.
B.
The IJ issued a decision finding that Ortez-Cruz failed to qualify for relief. Despite
some issues with her testimony, the IJ found her credible regarding Auceda’s abuse, except
for her statement that Auceda had threatened to kill her when he stabbed her (which Ortez-
Cruz had omitted from the declaration she filed with her application). But in the IJ’s view,
much of her testimony regarding her fear of future persecution was too speculative to be
given much weight. For example, the IJ stressed that there was no corroborating evidence
as to Auceda’s whereabouts or that he had entered the United States in 2003.
The IJ also assigned little probative value to Owens’s testimony because it rested
“on a false assumption that [Auceda] never rehabilitated” and because her knowledge of
Honduran law enforcement’s ineffectiveness in preventing domestic violence was limited
to “a few” cases that she had studied. A.R. 103–04. The IJ reasoned (incorrectly) that “the
burden is on [Ortez-Cruz] to prove [Auceda’s] dangerousness,” and it was thus insufficient
for Owens to testify that she “lacks any reason to believe” Auceda had been rehabilitated.
A.R. 104. He instead found that Auceda “may have rehabilitated through numerous
8
experiences, inter alia, a conviction for harming another partner, reflection and repentance,
[and] maturation or some other life changing development.” A.R. 104. Thus, he stated,
“the Court possesses an ambiguous record regarding [Auceda’s] current intentions to harm
[Ortez-Cruz].” A.R. 104.
Next, the IJ assumed without deciding that Ortez-Cruz’s particular social groups—
“Honduran women in domestic relationships who are unable to leave the domestic
relationship” and “women who are viewed as property by virtue of their position in the
domestic relationship”—qualify for protection. A.R. 106. He further assumed that Ortez-
Cruz was persecuted because of her membership in those groups. This triggered the future-
threat presumption, which may be rebutted if the government shows by a preponderance
of the evidence that either:
(A) There has been a fundamental change in circumstances such that
the applicant’s life or freedom would not be threatened on account of
any of the five grounds mentioned in this paragraph upon the
applicant’s removal to that country; or
(B) The applicant could avoid a future threat to his or her life or
freedom by relocating to another part of the proposed country of
removal and, under all the circumstances, it would be reasonable to
expect the applicant to do so.
8 C.F.R. § 1208.16(b)(1)(i)(A), (B).
The future-threat presumption is “based on ‘the possibility that a persecutor, once
having shown an interest in harming the applicant, might seek to harm the applicant again
should the applicant be forced to return within the persecutor’s reach.’” Matter of A-T-, 24
I. & N. Dec. 617, 618 (A.G. 2008) (quoting Matter of N-M-A-, 22 I. & N. Dec. 312, 317–
9
18 (B.I.A. 1998)). “In essence, the ‘past serves as an evidentiary proxy for the future.’”
Id. (quoting Matter of N-M-A-, 22 I. & N. Dec. at 318).
The IJ found that the government rebutted the presumption in both ways:
circumstances had fundamentally changed since Auceda had last harmed Ortez-Cruz, and
Ortez-Cruz could avoid a future threat by relocating to her mother’s house or another place
in Honduras (and it would be reasonable to expect her to do so). As to changed
circumstances, the IJ concluded that Auceda had not contacted Ortez-Cruz for over fifteen
years, choosing not to credit her claims that Auceda came to the United States in 2003 and
sent her a Facebook message in 2016. Further, the IJ deemed it significant that Auceda
had not contacted Ortez-Cruz during the eight months she lived with her sisters, nor had
he tried to harm Anthony when Anthony lived with Ortez-Cruz’s mother in southern
Honduras. In the IJ’s view, these facts contradicted Ortez-Cruz’s claim that Auceda still
had an interest in her. The IJ also found that Ortez-Cruz “possesses other protective factors
to keep her safe from [Auceda] in the future, including a place to live in Honduras with her
mother, the ability to work, and work experience in both Honduras and the United States.”
A.R. 108.
As to relocation, the IJ found “insufficient evidence that [Auceda] would find
[Ortez-Cruz] if she moved farther away to another part of Honduras, such as the southern
part of the country where her mother and father live.” A.R. 109. He emphasized that
Auceda had never contacted Ortez-Cruz’s mother or father even though he knew where
they lived. He also found that Ortez-Cruz “stated that she could live with her mother if she
10
returned to Honduras,” and thus it was reasonable to expect Ortez-Cruz to relocate there or
to another place in Honduras. 4 A. 109. Accordingly, the IJ held that (1) Ortez-Cruz
“failed to meet her burden to establish by a clear probability that her life or freedom will
be threatened” and (2) the government rebutted the future-harm presumption. A.R. 109.
For the same reasons, and because Ortez-Cruz had not established that the Honduran
government was unwilling to protect her from torture, the IJ also denied Ortez-Cruz’s CAT
claim. That claim required her to show that it is more likely than not that, if she were
removed, she would be tortured with the consent or acquiescence of the Honduran
government. The IJ found that, while violence against women is a problem in Honduras,
Ortez-Cruz did not face a particularized risk upon return. In his analysis of Ortez-Cruz’s
CAT claim, the IJ noted that the “record is inconclusive as to whether [Auceda] would seek
[Ortez-Cruz] if she lived in southern Honduras with her mother or in another area of the
country.” A.R. 112.
The Board affirmed the IJ’s findings and dismissed Ortez-Cruz’s appeal. The Board
also noted that the government did not challenge the IJ’s assumption that Ortez-Cruz’s
particular social groups were cognizable. Thus, the Board deemed the issue waived. 5
4
The IJ based this finding on Ortez-Cruz’s statement that “[a]fter so many years of
not being there, I do not have another house to go except my mother’s.” A.R. 262. This
statement did not indicate that she could reasonably relocate elsewhere in Honduras.
5
At oral argument, the government confirmed that it has abandoned this issue on
appeal. We thus decline to consider whether Ortez-Cruz’s proposed social groups are
cognizable in light of Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which was issued
shortly after the Board’s decision in this case.
11
Ortez-Cruz timely petitioned this court for review.
II.
The issues before us on appeal are whether the Board erred by denying Ortez-Cruz’s
withholding of removal and CAT claims. “When, as here, the [Board] affirms the IJ’s
decision with an opinion of its own, we review both decisions.” Salgado-Sosa v. Sessions,
882 F.3d 451, 456 (4th Cir. 2018). The Board’s determinations that the future-threat
presumption was rebutted and that Ortez-Cruz failed to meet her burden as to her CAT
claims are factual findings, see Dong v. Sessions, 743 F. App’x 513, 519 (4th Cir. 2018)
(unpublished) (citing Essohou v. Gonzalez, 471 F.3d 518, 520 (4th Cir. 2006)), which we
must accept “unless any reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B).
While our review is deferential, it’s not toothless. “[I]n reviewing agency decisions
in immigration matters, it is ‘our responsibility to ensure that unrebutted, legally significant
evidence is not arbitrarily ignored by the factfinder.’” Tassi v. Holder, 660 F.3d 710, 719
(4th Cir. 2011) (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)). “Hence,
an IJ is not entitled to ‘base a decision on only isolated snippets of the record while
disregarding the rest.’” Id. (alterations adopted) (quoting Baharon, 588 F.3d at 233). “Nor
may the IJ ‘distort or disregard important aspects of the alien’s claim,’ make rulings that
are based ‘on an inaccurate perception of the record,’ or ‘rely on speculation, conjecture,
or an otherwise unsupported personal opinion to discredit an applicant’s testimony or her
12
corroborating evidence.’” Id. (alterations adopted) (quoting Jian Tao Lin v. Holder, 611
F.3d 228, 237 (4th Cir. 2010)).
A.
We first consider Ortez-Cruz’s withholding of removal claim. Entitlement to
withholding of removal requires a “clear probability” that a refugee’s “life or freedom
would be threatened” on account of a protected ground if she were sent back to her home
country. Anim v. Mukasey, 535 F.3d 243, 252–53 (4th Cir. 2008). The applicant typically
bears the burden of proving this. See id. But here, the future-threat presumption shifted
the burden to the government, which was then required to establish (by a preponderance of
the evidence) one of the two conditions that will rebut the presumption. See 8 C.F.R.
§ 1208.16(b)(1)(i). The question here is whether the government met that burden as to
either condition.
Ortez-Cruz proposes a bright-line rule: the government cannot meet its burden to
rebut the future-threat presumption where it produces no relevant evidence and makes no
argument. This proposed rule is overbroad. There may be cases where the Board can rely
solely on the applicant’s own evidence (or her testimony on cross-examination) in finding
one of the two conditions that rebut the presumption. For example, if Ortez-Cruz had
testified that Auceda was dead, a “fundamental change of circumstances” finding
obviously would be proper—even without evidence or argument from the government—
because the record would point unambiguously in that direction.
13
However, this isn’t one of those cases. As the IJ recognized in his opinion, the
record was “ambiguous” and “inconclusive” as to whether either condition—(1) a
fundamental change in circumstances or (2) that Ortez-Cruz could safely relocate within
Honduras—was met. A.R. 104, 112. That’s not good enough. To rebut the presumption,
the government must prove that its view of the evidence as to either condition is the most
convincing one. See Dong, 743 F. App’x at 521 (stating that the government must prove
its view of the evidence is “more probable” than the applicant’s alternative explanation,
and the IJ must offer a “reasoned explanation” for why the government’s view of the
evidence is “more convincing than plausible inferences pointing in the other direction”)
(citations omitted)); see also Singh v. Sessions, 898 F.3d 518, 521–23 (5th Cir. 2018)
(vacating the Board’s finding of rebuttal because the government had not produced any
evidence on the issue and its argument was perfunctory). As we explain, the government
failed to do that here. Any reasonable adjudicator would be compelled to come to that
conclusion.
We address each condition in turn. Because the Board affirmed the IJ’s findings
without providing further analysis, we focus on the IJ’s opinion.
1.
In finding a fundamental change in circumstances since Auceda last harmed Ortez-
Cruz, the IJ relied on two key inferences it drew from the evidence.
First, the IJ inferred that Auceda no longer had an interest in Ortez-Cruz—even
though he had previously threatened to kill her if she left him—simply because he had not
14
contacted her or her family in over fifteen years. Auceda’s lack of contact, standing alone,
doesn’t rebut the presumption. There are plausible alternative explanations for it. For
example, Auceda may not know how to contact Ortez-Cruz. Reaching her in the United
States might not seem feasible. He might not have contacted her family because he presents
a different persona to them, as is typical of serial abusers (according to Owens), or because
he believed that it wouldn’t help him reach her in the United States. Cf. Tchemkou v.
Gonzales, 495 F.3d 785, 794 (7th Cir. 2007) (stating that the treatment of the petitioner’s
family members does not “speak to how [the petitioner] would be treated upon her return”
because they had not participated in the protests that the petitioner had).
In the context of this case, the government failed to show that the passage of fifteen
years meant Auceda had lost interest in Ortez-Cruz. Owens testified to the contrary and
referenced cases where serial abusers murdered women after twenty-eight years without
contact. No record evidence rebutted her testimony. Accordingly, the IJ should have given
it weight in assessing whether Auceda posed a continuing threat. See Baharon, 588 F.3d
at 233 (stating that an IJ may not arbitrarily ignore unrebutted, legally significant evidence).
To the extent the IJ disregarded Owens’s testimony on the basis that she didn’t personally
interview Auceda, that was error. Expert testimony often extrapolates from general
knowledge; it can’t be ignored for that reason alone.
In any event, it’s the government’s burden to prove that the most likely explanation
for Auceda’s lack of contact is that he had lost interest in Ortez-Cruz. See Dong, 743 F.
App’x at 521. The government didn’t do so. In fact, the IJ appeared to recognize this by
15
finding that the record was “ambiguous” as to Auceda’s “current intentions to harm” Ortez-
Cruz. A.R. 104. Faced with such ambiguity, any reasonable adjudicator would have been
compelled to use Auceda’s past abuse “as an evidentiary proxy for the future,” Matter of
A-T-, 24 I. & N. Dec. at 618 (quoting Matter of N-M-A-, 22 I. & N. Dec. at 318), and
presumed that he remained a threat.
In reaching the wrong conclusion, the IJ made several missteps. First, the IJ faulted
Owens for assuming that Auceda hadn’t been rehabilitated, stating that “the burden is on
[Ortez-Cruz] to prove [Auceda’s] dangerousness.” A.R. 104. This is incorrect. Once the
presumption applied, it was the government’s burden to show that Auceda was no longer
dangerous. Second, the IJ concluded that Ortez-Cruz “did not sufficiently corroborate her
potential for future persecution,” but she has no burden to do so. A.R. 102–03. The IJ was
required to presume that she faced future harm unless the government proved otherwise.
And third, the IJ’s opinion is littered with citations to cases in which the applicant bore the
burden of proof, without any acknowledgment that these cases might be distinguishable.
See, e.g., A.R. 108 (citing Salem v. Holder, 647 F.3d 111, 115 (4th Cir. 2011); Matter of
A-M-, 23 I. & N. Dec. 737, 740–41 (B.I.A. 2005)).
It will sometimes be difficult for the government to prove that an individual in
another country no longer poses a threat. But that is consistent with the presumption. It
puts a thumb on the scale for applicants who show past harm. A lack of proof as to whether
Auceda retains interest in Ortez-Cruz can’t be held against her. See Bace v. Ashcroft, 352
F.3d 1133, 1140 (7th Cir. 2003). And there are ways in which the government could have
16
shown that Ortez-Cruz’s circumstances had fundamentally changed. For example, it could
have tried to find information about Auceda online; demonstrated that Honduran law
enforcement has improved at protecting domestic-violence victims; elicited testimony
from Owens (or cited documentary evidence, if it exists) about the statistical unlikelihood
of an abuser harming a previous victim after decades without contact; or called its own
expert to testify to that effect.
The second inference that the IJ relied on in finding a fundamental change in
circumstances was that Ortez-Cruz “possesses other protective factors to keep her safe
from [Auceda] in the future, including a place to live in Honduras with her mother, the
ability to work, and work experience in both Honduras and the United States.” A.R. 108.
These factors, however, are relevant only in that they may enable Ortez-Cruz to relocate
within Honduras, an issue we address next.
2.
The IJ found that the government established that Ortez-Cruz could safely relocate
to southern Honduras, where her mother lives. He inferred that Auceda would not reach
her there because Auceda didn’t find Ortez-Cruz in the eight months when she lived with
her sisters in Tegucigalpa, has never contacted her mother (despite knowing where she
lives), and didn’t harm his son Anthony in the four years when he lived with Ortez-Cruz’s
mother. These facts, standing alone, do not rebut the presumption. That is, no reasonable
adjudicator could find that these facts establish (by a preponderance of the evidence) that
Ortez-Cruz “could avoid a future threat to [] her life or freedom by relocating” within
17
Honduras and that it would be reasonable to expect her to do so. 8 C.F.R.
§ 1208.16(b)(1)(i)(B).
In assessing whether Ortez-Cruz can safely relocate within Honduras, the
appropriate question is whether Auceda would threaten her at some point in the future. The
threat need not be imminent. See id. § 1208.16(b) (setting no time limit for threats to the
applicant); Kone v. Holder, 596 F.3d 141, 149 (2d Cir. 2010) (stating that “[n]othing in the
regulations requires an applicant to show that she would be immediately persecuted upon
return, that persecution would be likely to occur within some short time span, or that it
would occur in regular intervals”). The government must show that, if Ortez-Cruz
relocates, it’s more likely than not that Auceda won’t threaten her for the rest of her life.
When viewed through this lens, the evidence relied on by the IJ does not meet the
government’s burden.
As explained above, Auceda’s lack of contact with her family isn’t very probative.
Her family is differently situated from her. See Tchemkou, 495 F.3d at 794. Abusers can
retain interest in victims despite many years without contact, according to Owens. Auceda
also knows where Ortez-Cruz’s mother lives, so she can’t reasonably be expected to be
safe there. Additionally, her work experience may help her move to different parts of
Honduras, but it’s not probative as to whether she would be safe from Auceda.
Nor does the eight-month period when Ortez-Cruz lived safely with her sisters show
that she can safely relocate. Just as safe return trips to the applicant’s home country don’t
“negate the potential of future harm,” Kone, 596 F.3d at 149, neither do brief periods of
18
safe living. Further, Ortez-Cruz was in hiding when she lived with her sister. It’s not
reasonable to expect her to live in hiding for the rest of her life. See Singh, 898 F.3d at 522
n.13 (collecting cases); Essohou, 471 F.3d at 522. And Auceda previously found her when
she relocated briefly within Honduras. Honduras is a small country—smaller than North
Carolina—so it may not be overly difficult for Auceda to track her down at some point in
her life. And Owens testified that serial abusers can travel great distances in pursuit of
victims. The IJ disregarded that part of her testimony, we think arbitrarily.
Two other errors helped lead the IJ to the wrong conclusion. First, as with his
changed-circumstances analysis, the IJ incorrectly placed the burden on Ortez-Cruz. For
example, he stated that there was “insufficient evidence” that Auceda would find her, A.R.
109, when the question should have been whether sufficient evidence showed that Auceda
would not find her. He also found that the “record is inconclusive as to whether [Auceda]
would seek [Ortez-Cruz] if she lived in southern Honduras with her mother or in another
area of the country,” yet he ruled for the government. A.R. 112. If the record is
inconclusive, then the government didn’t meet its burden. And second, the IJ mistakenly
found that Ortez-Cruz admitted that she could live safely with her mother, when she instead
said that she had nowhere to go in Honduras except her mother’s house.
The facts of this case are analogous to those in Arrey v. Barr, 916 F.3d 1149 (9th
Cir. 2019). There, Arrey credibly testified that her former abuser had found her while she
was hiding in a city that was a two-hour drive from where the abuser lived in Cameroon.
See id. at 1154–55. Arrey didn’t know whether her abuser was still pursuing her after she
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came to the United States, however. Id. at 1155. Despite that uncertainty, the Ninth Circuit
held that Arrey indisputably met her burden under the CAT to show that it was more likely
than not that she’d be tortured if she returned to Cameroon (which is more than four times
larger than Honduras in terms of land), and that substantial evidence didn’t support the
Board’s conclusion that she could safely relocate. Id. at 1160–61.
Arrey is distinguishable in two important respects: Arrey’s abuse was more recent
(two years before her hearing) and she had a theory for why her abuser could track her
down (his business connections), albeit one that the Board found implausible. Id. at 1153–
56. But notwithstanding these differences, Arrey illustrates that “bare speculation” that an
applicant can relocate to avoid a serial abuser isn’t enough. Id. at 1161; see also Tassi, 660
F.3d at 719 (stating that IJs may not “rely on speculation, conjecture, or an otherwise
unsupported personal opinion to discredit an applicant’s testimony or her corroborating
evidence” (quoting Jian Tao Lin, 611 F.3d at 237)). Further, like Arrey’s abuser, Auceda
once tracked Ortez-Cruz down after she’d moved away. And unlike Arrey, Ortez-Cruz has
the benefit of the presumption. If Arrey proved indisputably that she can’t reasonably be
expected to safely relocate, then the government failed to prove that the reverse is true for
Ortez-Cruz.
As with the changed circumstances condition, it will often be difficult for the
government to prove that an applicant can safely and reasonably relocate to avoid a serial
abuser. But there are ways to do it. The government can show that the applicant’s home
country has a good infrastructure for protecting or sheltering domestic-violence victims, or
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provide statistical evidence (if it exists) as to the likelihood that a serial abuser would track
down a former victim after years without contact. With regard to applicants from larger
countries, it may sometimes be enough to show that the applicant is educated or has work
experience, or that she had access to housing in different areas of the country, thus enabling
her to relocate freely. See Gonzalez-Medina v. Holder, 641 F.3d 333, 338 (9th Cir. 2011)
(upholding the Board’s finding that an applicant could relocate within Mexico, in part
because she had a large family that had experience finding shelter for domestic-violence
victims).
The government did none of that here. Its only relevant evidence was about whether
Auceda had tried to contact Ortez-Cruz in recent years. Such evidence, without more,
doesn’t prove that Ortez-Cruz can safely relocate. When comparing Ortez-Cruz and
Owens’s testimony against the government’s lack of probative evidence, a reasonable
adjudicator would be compelled to find that the government failed to meet its burden on
the relocation issue.
***
Because the government failed to meet its burden as to either rebuttal condition, we
vacate the agency’s denial of Ortez-Cruz’s withholding of removal claim and remand for
the agency to grant her application.
B.
We turn now to Ortez-Cruz’s claim for relief under the CAT. To establish eligibility
for protection, an applicant must prove that it’s “more likely than not” that, if she were
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removed to Honduras, she would be tortured with the consent or acquiescence of a public
official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1). The CAT defines torture as:
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or her or a third person information or a confession, punishing him or her for
an act he or she or a third person has committed or is suspected of having
committed, or intimidating or coercing him or her or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity.
Id. § 1208.18(a)(1).
Crucially, past torture doesn’t create a presumption of future torture under the CAT.
Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013). The burden of proof lies
with Ortez-Cruz. See 8 C.F.R. § 1208.16(c)(2). To support her claim, Ortez-Cruz points
to Auceda’s past abuse and the Honduran government’s alleged willful blindness to
domestic violence.
After reviewing the evidence, we conclude that a reasonable adjudicator would not
be compelled to find that Ortez-Cruz proved that there is more than a fifty-percent chance
that Auceda would torture her and that Honduran law enforcement would turn a blind eye.
In the CAT context, Auceda’s past abuse doesn’t require us to presume that he will harm
Ortez-Cruz in the future. And a CAT claim requires the applicant to show that she will be
tortured, not merely threatened (which is what a withholding claim requires).
This case is distinguishable from Arrey and other serial-abuser cases where CAT
applicants have won relief because of the amount of time since Auceda’s last contact with
Ortez-Cruz and the fact that she didn’t previously seek assistance from Honduran law
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enforcement. Accordingly, we affirm the agency’s denial of Ortez-Cruz’s application for
relief under the CAT.
III.
For the reasons given, we grant Ortez-Cruz’s petition for review with respect to her
eligibility for withholding of removal and remand with instructions that the agency grant
relief on that claim. We deny her petition with respect to her claim under the CAT.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART, AND
REMANDED WITH INSTRUCTIONS
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