Karlena Dawson v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARLENA DAWSON, No. 19-73124
Petitioner,
Agency No.
v. A072-583-249
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2021
Pasadena, California
Filed May 26, 2021
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and Kathryn H. Vratil, * District Judge.
Opinion by Judge Vratil;
Dissent by Judge Milan D. Smith, Jr.
*
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
2 DAWSON V. GARLAND
SUMMARY **
Immigration
Denying Karlena Dawson’s petition for review of the
Board of Immigration Appeals’ decision affirming the denial
of deferral of removal under the Convention Against
Torture, the panel held that the record did not compel a
finding that it is more likely than not that Dawson would
suffer future torture if returned to Jamaica.
Dawson sought CAT relief based on the physical abuse
she suffered at the hands of her former domestic partner.
The panel agreed with the Board that even assuming Dawson
suffered past torture, the record did not compel the
conclusion that she faces a likelihood of future torture if
returned to Jamaica, given her changed circumstances,
including a Jamaican court’s issuance of a protection order,
and her former partner’s departure from her household. The
panel explained that in assessing the likelihood of future
torture, the adjudicator must consider all evidence relevant
to the possibility of future torture, including whether
circumstances or conditions have changed significantly with
respect to the particular individual, and not merely
information about general changes in the country.
The panel also concluded that the record supported a
finding that Dawson could safely relocate within Jamaica to
avoid future torture, given that Dawson’s former partner’s
purported connections to the government did not prevent
Dawson from obtaining and enforcing the protection order,
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DAWSON V. GARLAND 3
which allowed her to stay in her former partner’s home; the
Jamaican police were responsive to reports when her former
partner violated the protection order, arresting him on one
occasion; and before returning to the United States, Dawson
was able to relocate to her friend’s house in another town
where she had no physical contact with her former partner.
The panel rejected Dawson’s contention that the IJ failed
to consider or give proper weight to country report evidence
concerning the treatment of women in Jamaica, which she
asserted demonstrated a particularized risk of violence to
herself. The panel explained that circumstances for
Jamaican women in general did not vitiate the agency’s
specific findings as to Dawson’s situation, and that while the
country reports reference generalized domestic violence
against women, that evidence did not compel a conclusion
that Dawson would more likely than not be subjected to
violence from her former partner or his associates.
Dissenting, Judge M. Smith wrote that the record in this
case compelled the conclusion that Dawson will more likely
than not be tortured if returned to Jamaica. Judge M. Smith
noted that Dawson endured severe torture at the hands of her
former partner, and wrote that in cases of past torture, such
abuse is the “principal factor” for evaluating the likelihood
of future torture, yet the majority turned a blind eye to the
facts in Dawson’s case, considering only what happened
after she successfully sought a protection order. Judge
M. Smith observed that the vast majority of this circuit’s
“changed conditions” case law concerns changes in the
immigrant’s specific country of origin, and wrote that even
assuming arguendo that a significant change in personal
circumstances is sufficient to render past torture irrelevant in
determining future torture, Dawson’s circumstances did not
significantly change, where despite a reduction in physical
4 DAWSON V. GARLAND
violence post-protection order, Dawson’s former partner
remained obsessively fixated on stalking her, hurting her,
and even killing her.
COUNSEL
Kathryn M. Davis (argued) and Peter R. Afrasiabi,
Supervising Attorneys; Courtney Lem (argued) and Wei Liu
(argued), Certified Law Students; University of California at
Irvine School of Law, Appellate Litigation Clinic, Pasadena,
California; for Petitioner.
Robert Michael Stalzer (argued), Trial Attorney; Anna
Juarez, Senior Litigation Counsel; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
VRATIL, District Judge:
Petitioner challenges a final order of removal issued by
the Board of Immigration Appeals (BIA). In that decision,
the BIA affirmed an Immigration Judge’s (IJ’s) denial of
petitioner’s request for deferral of removal under the
Convention Against Torture (CAT). See 8 C.F.R.
§ 1208.13(c)(1). We hold that the record does not compel a
finding that it is more likely than not that petitioner will
suffer future torture if returned to Jamaica. We also hold that
the IJ appropriately considered all of petitioner’s evidence,
including her country reports and whether she could safely
relocate if returned to Jamaica. We thus deny the petition for
deferral of removal.
DAWSON V. GARLAND 5
Standard Of Review
The Court reviews for substantial evidence the factual
findings which underlie the BIA’s conclusion regarding
eligibility for CAT protection. Avendano-Hernandez v.
Lynch, 800 F.3d 1072, 1078 (9th Cir. 2015). Substantial
evidence means that the findings are “supported by
reasonable, substantial, and probative evidence in the
record.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th
Cir. 2003). To reverse a factual finding, the evidence must
“compel” a conclusion different from the one which the BIA
reached. Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011);
see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
In reviewing the decision of the BIA, this Court considers
only the ground relied upon by the BIA. Singh v. Holder,
649 F.3d 1161, 1164 n.6 (9th Cir. 2011); see also Arrey v.
Barr, 916 F.3d 1149, 1157 (9th Cir. 2019) (court cannot
affirm on grounds on which BIA did not rely).
We may refer to the IJ’s decision when “the BIA’s
decision . . . accorded significant deference to the IJ’s
observations.” Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir.
2010); see also Parada v. Sessions, 902 F.3d 901, 909 (9th
Cir. 2018) (where BIA reviews IJ’s decision and
incorporates portions of it as its own, Court treats
incorporated portions as decision of BIA). The Court’s
review is limited to the administrative record before the BIA.
See 8 U.S.C. § 1252(b)(4)(A).
Factual And Procedural Background
Karlena Dawson is a native and citizen of Jamaica who,
starting around 1992, made multiple unlawful entries into
the United States. In late 2009 or 2010, Dawson was arrested
for shoplifting and had an outstanding warrant from a 1996
drug charge. On July 20, 2010, Dawson was sentenced to
6 DAWSON V. GARLAND
63 months in prison for unlawful importation of a controlled
substance in violation of 21 U.S.C. § 952(a). On April 24,
2014, she completed her period of incarceration and was
removed to Jamaica.
On February 8, 2019, Dawson attempted to reenter the
United States by claiming to be a United States citizen. After
immigration inspectors determined that she was not a
citizen, Dawson expressed a fear of returning to Jamaica and
was found to possess a credible fear of persecution if
returned. In the ensuing removal proceedings, she sought
deferral of removal under CAT. 1
I. Proceedings Before The Immigration Judge
The basis of Dawson’s CAT claim was physical abuse at
the hands of her former domestic partner in Jamaica, a man
named Robert Hinds. Dawson testified and offered
documentary evidence in support of her application. The
documentary evidence included her declaration; a temporary
protection order against Hinds from a magistrate judge in
Jamaica; and three reports which described existing
conditions in Jamaica—the 2018 U.S. Department of State
report on human rights abuses in Jamaica, a 2018 United
Nations High Commissioner for Refugees Report and a 2016
United Nations Women’s Health Survey for Jamaica.
1
Because of her controlled substance conviction, Dawson sought
only deferral of removal under CAT. See 8 C.F.R. §§ 1208.13(c)(1),
1208.16(d)(2) (applicant who has been convicted of particularly serious
crime subject to mandatory denial of asylum and withholding of
removal); 8 C.F.R. § 1208.17(a) (applicant subject to mandatory denial
under 8 C.F.R. § 1208.16(d)(2) “shall be granted deferral of removal to
the country where he or she is more likely than not to be tortured”).
DAWSON V. GARLAND 7
In testimony on May 29, 2019, Dawson explained that
she met Hinds in 2006 in Phoenix, Arizona. At first, she
thought that he would protect her, but in early 2007 he began
to physically abuse her. They dated for about eight months,
until he was incarcerated and eventually removed to
Jamaica. In April of 2014, when released from her own
incarceration, Dawson returned to Jamaica to be with Hinds.
Hinds sent a police officer to escort Dawson through
customs so that she would not be stopped for processing. The
officer delivered her to Hinds, who sequestered her in his
house. Hinds kept her locked in the house and instructed her
to not speak to anyone, to not try to leave and to do the
laundry on certain days. He also started to physically abuse
her again.
While Dawson lived with Hinds, Hinds forced her to go
to his farm, where he beat her and threatened to behead her
if she did not work. She recounted one particular day when
she refused to go to the farm, and Hinds’ friends forced her
into a van and burned her hands as punishment. According
to Dawson, she still had burn marks on her hands and scars
on her knees where Hinds had dragged her. Because of her
injuries, she could not make a tight fist with either hand.
On multiple occasions starting in 2016, Dawson reported
Hinds to the police. The first time she reported him, the
police sent two officers who were friends of Hinds. These
officers tried to evict her from Hinds’ house, but neighbors
rallied and yelled at the police officers until they left.
Dawson then complained at a different police station, which
only gave her a police report. In July or August of 2016,
Dawson went to family court and obtained an order of
protection which allowed her to stay in Hinds’ house. As
soon as the judge issued the order, Hinds drove to the house
and tried to break in. A neighbor took a picture of Hinds
8 DAWSON V. GARLAND
pulling the sliding glass door off the house and sent the
picture to Dawson. Dawson went to the police station and
reported Hinds, and police arrested him for violating the
court order. The police released Hinds later that day, and that
night he came back to the house with a gun, shot out one of
the outdoor lights, and then left. After the court issued the
protection order, Hinds never lived in the house again. In
2018, the court issued a five-year stay-away protection
order. After that, Dawson did not know where Hinds lived.
After the initial protection order in 2016, Dawson
attended court once a month. When she returned home from
court each month, Hinds waited for her further up the street,
along with two police friends who would come and harass
her. The officers would stay for 15 to 20 minutes, tell her to
“go back to America” and state that she would “end up dead”
because Hinds needed his house and “has to be paying rent.”
Neighbors again rallied and told the officers to leave her
alone.
After the protection order was issued, Hinds frequently
drove by the house but only entered it twice. The first time
he came to pick up his clothes, and when she told him to
leave, he slapped her and left. The second time, Hinds came
through the open back door and told Dawson that the house
belonged to him. When Dawson protested, Hinds pushed
her. Dawson yelled, and neighbors again rallied and the
police came. In addition, Hinds’ mother showed up on one
occasion to try to evict Dawson and change locks, but the
police came and told Hinds’ mother that because of the
protection order, Dawson could not be evicted.
In 2017, Dawson began to experience bleeding and pain
in her stomach, which required her to be hospitalized in two
hospitals over the course of two months. As a result of the
bleeding, she received a blood transfusion. In her
DAWSON V. GARLAND 9
declaration, Dawson explained that the doctors “didn’t really
know what was wrong with [her]” and asked her, “Who is
punching you in the stomach?”
In October of 2018, Dawson moved to Spanish Town,
which was approximately 20 to 30 minutes away from
Hinds’ house. Until January of 2019, when she returned to
the United States, she stayed there with a friend. During this
period, Hinds “came by like around five, six times” and
threatened her. After she returned to the United States, Hinds
continued to harass the friend in Spanish Town who had
helped her leave, and he left a bullet on her friend’s porch.
When asked what she feared if she returned to Jamaica,
Dawson said that she “will sure be killed.” She explained
that police officers and Hinds “will have [her] killed”
because she was suing for the return of money from a
malpractice settlement that Hinds took from her daughter.
Dawson suggested that Hinds would be able to find her in
Jamaica because she would have to go to court for her civil
suit.
II. The Immigration Judge’s Decision
In June of 2019, the IJ issued a written decision which
denied Dawson’s application for deferral of removal and
ordered her removed to Jamaica. 2 The IJ found that even
2
Although Dawson was only seeking deferral of removal, the IJ “out
of an abundance of caution” analyzed whether Dawson’s drug conviction
was for a particularly serious crime which would preclude her from
seeking asylum, withholding of removal under 8 U.S.C. § 1231(b)(3),
and withholding of removal under the regulations implementing CAT.
The IJ concluded that Dawson’s conviction was for such a particularly
serious crime. Dawson did not appeal this conclusion to the BIA, nor did
she contest it in her petition for review. Dawson therefore waived this
10 DAWSON V. GARLAND
though Dawson’s testimony was credible, she had failed to
demonstrate eligibility for deferral of removal. The IJ
assumed that Hinds’ past treatment of Dawson constituted
torture, but that in light of subsequent developments,
Dawson had not established that it was more likely than not
that Hinds would torture her in the future. In particular, the
IJ noted that Hinds did not live with Dawson after she
obtained the protection order, and police responded on at
least one occasion to arrest him for violating the order. The
IJ explained that although Dawson continued to suffer
harassment from Hinds, “the severe abuse from Hinds
ended” after she obtained the protection order. As a result,
the IJ found that during the last two years Dawson lived in
Jamaica, she did not suffer “a level of harm approaching
torture.” The IJ therefore concluded that she had not
demonstrated that she would more likely than not suffer
torture in the future.
The IJ also assessed whether Dawson had established
that a public official or other person acting in an official
capacity would consent or acquiesce to her torture. The IJ
found that “nothing in the record suggest[ed] [Dawson] will
be subjected to torture by the Jamaican government or with
its acquiescence.” The IJ noted that Hinds often brought his
“police friends” to the home, but noted that Dawson was able
to file police reports against Hinds and obtain the order of
protection, which was “viable until 2023.”
The IJ also examined the evidence of conditions within
Jamaica, including “issues with corruption within the police
issue. See, e.g., Alvarado v. Holder, 759 F.3d 1121, 1127 n.5 (9th Cir.
2014) (requiring issue exhaustion before BIA); Christian Legal Soc’y v.
Wu, 626 F.3d 483, 485 (9th Cir. 2010) (issues waived if not raised in
opening brief).
DAWSON V. GARLAND 11
force and a generalized trend of violence towards women.”
The IJ concluded that a pattern of violations alone was
insufficient to establish that Dawson would be personally at
risk of torture.
Accordingly, because Dawson had not demonstrated
eligibility for deferral from removal, the IJ ordered her
removed to Jamaica.
III. The BIA Decision
Dawson filed a timely administrative appeal to the BIA,
arguing that the IJ had erred in denying her request for
deferral of removal under CAT. On December 2, 2019, the
BIA affirmed the IJ’s decision and dismissed Dawson’s
appeal. The BIA discerned “no clear factual error” in the IJ’s
finding that Dawson was not more likely than not to be
tortured by Hinds or his associates if she returned to Jamaica.
The BIA explained that the IJ had appropriately concluded
that even if Dawson had suffered past torture from Hinds, it
significantly diminished after (1) she obtained a protection
order and (2) Hinds left the domestic household. The BIA
concluded that after those changes in circumstance, Hinds’
conduct “was not so severe as to constitute torture within the
meaning of the applicable regulation.” See 8 C.F.R.
§ 1208.18(a)(2).
The BIA also found no clear error in the IJ’s analysis of
country conditions evidence. The BIA acknowledged
Dawson’s argument that the IJ had given insufficient weight
to evidence related to domestic violence, but found no clear
error “in the manner in which the Immigration Judge
weighed the evidence of record, or his predictive findings as
to what is likely to occur if [Dawson] is removed to
Jamaica.”
12 DAWSON V. GARLAND
In consequence, the BIA affirmed the IJ’s decision and
dismissed Dawson’s appeal. In a footnote, the BIA explained
that because it was affirming the IJ’s predictive finding
about the likelihood of future torture, it need not resolve
Dawson’s challenge to the IJ’s finding regarding whether a
public official in Jamaica would acquiesce to such torture. In
doing so, the BIA adopted the IJ’s decision in part.
Analysis
Petitioner seeks review of the BIA’s decision which
denied deferral of removal under CAT. See 8 C.F.R.
§ 1208.13(c)(1). Petitioner argues that (1) by limiting its
consideration to events which occurred after the protection
order, the BIA failed to the consider the totality of the
evidence about the likelihood of future torture; (2) the BIA
erred by failing to consider evidence that petitioner cannot
safely relocate if returned to Jamaica; and (3) the IJ failed to
appropriately consider country reports. 3 The Court will
consider each argument in turn.
I. Likelihood Of Future Torture
The first issue is whether substantial evidence supports
the BIA’s determination that petitioner did not establish that,
more likely than not, she would face torture if returned to
Jamaica. The BIA’s finding that an applicant is not eligible
for relief under CAT is reviewed for substantial evidence.
3
Petitioner also argues that the record demonstrates acquiescence of
a public official. She argues that if the BIA had considered the IJ’s error,
the BIA would have been compelled to reverse. The BIA expressly stated
that it was unnecessary to review the IJ’s finding whether the torture
would occur by or with the acquiescence of a Jamaican government
official. Because we deny this petition on the issue of likelihood of future
torture, we need not address this issue.
DAWSON V. GARLAND 13
Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011); Arteaga
v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007).
Administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to
the contrary. See 8 U.S.C. § 1252(b)(4)(B); Elias-Zacarias,
502 U.S. at 481 n.1.
Dawson argues that in finding that she had not shown a
probability of future torture, the BIA failed to give
appropriate weight to evidence of past torture. In rendering
a decision about the likelihood of future torture, the BIA is
required to consider “all evidence relevant to the possibility
of future torture.” 8 C.F.R. § 1208.16(c)(3); see Parada,
902 F.3d at 914–15. Past torture is one such relevant
consideration, see 8 C.F.R. § 1208.16(c)(3)(i), in that
someone who has been tortured in the past is likely to be
tortured in the future if returned to the same situation. See
Nuru v. Gonzales, 404 F.3d 1207, 1217–18 (9th Cir. 2005).
In and of itself, however, a showing of past torture “does not
give rise to a regulatory presumption of . . . future torture.”
Lopez-Gonzalez v. Sessions, 743 F. App’x 726, 728 (9th Cir.
2018) (citing Mohammed v. Gonzales, 400 F.3d 785, 802
(9th Cir. 2005)); see also 8 C.F.R. § 1208.16(c)(3). The
inference that future torture is likely to recur breaks down
where “circumstances or conditions have changed
significantly, not just in general, but with respect to the
particular individual.” Nuru, 404 F.3d at 1218; see also
Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1188 (9th Cir.
2020) (applicant likely to be tortured again if returned to site
of prior suffering “absent changed circumstances”); Cole,
659 F.3d at 770, 775 (BIA must “consider the aggregate risk
that [applicant] would face”).
Here, Dawson argues that the horrific nature and extent
of past torture at the hands of Hinds, in league with the local
14 DAWSON V. GARLAND
police, is the appropriate background against which the BIA
must evaluate the likelihood of future torture. Petitioner
contends that the protection order and Hinds’ removal from
the domestic household did not significantly change her
situation because they did not eliminate the risk of future
torture and the torture did not stop. To illustrate, she cites the
following post-protection order incidents: (1) Hinds tried to
break in to the household and was subsequently arrested;
(2) Hinds appeared on the street once a month after Dawson
returned from court and yelled at her, with police friends
who harassed and threatened her; (3) Hinds frequently drove
past the house, one time wielding a gun and shooting out the
porch light; (4) Hinds entered the house on two occasions—
once to pick up his clothes, and once to tell Dawson that the
house belonged to him—and slapped or pushed her before
leaving; and (5) after Dawson returned to the United States,
Hinds left a bullet on the doorstep of her friend’s house in
Spanish Town.
We agree with the BIA that even assuming that petitioner
suffered past torture, the record does not compel the
conclusion that Dawson faces a likelihood of future torture
if returned to Jamaica. The dissent describes in detail the
torture that Dawson suffered at the hands of Hinds when they
lived in his house together from approximately April of 2014
to July of 2016, see Dissent at 20–21. The IJ and the BIA
assumed that “the harm [Dawson] experienced at one time
from Mr. Hinds amounted to torture,” and we do not
disagree. Dawson’s circumstances “changed significantly,”
however, after the Jamaican court issued her a protection
order and Hinds left the domestic household. See Nuru,
404 F.3d at 1217–18; see also Xochihua-Jaimes, 962 F.3d
at 1188. According to Dawson’s testimony, these changes
had a significant impact on her situation: Dawson went from
suffering daily physical abuse by Hinds to seeing him drive
DAWSON V. GARLAND 15
past the house or yell from the street roughly once a month.
Dawson’s situation changed even more significantly when
she left Hinds’ house and moved in with her friend in
Spanish Town, after which Hinds “came by like around five,
six times” over the course of approximately two months and
never had physical contact with her. The dissent analogizes
the past torture that Dawson suffered to the torture that the
petitioner in Xochihua-Jaimes suffered, see Dissent at 23-
24. But in our case, the conditions in Jamaica for Dawson
changed after she obtained the protection order; in
Xochihua-Jaimes, on the other hand, the conditions in
Mexico for petitioner “remain[ed] the same” as when the
past torture took place, see Xochihua-Jaimes, 962 F.3d
at 1188.
As noted, the inference that future torture is likely to
recur based on past torture breaks down upon consideration
of the entire record, including the post-protection order
evidence. From July of 2016 (when Dawson obtained the
protection order) to January of 2019 (when Dawson left for
the United States), Hinds slapped or pushed Dawson only
twice; otherwise, she did not suffer any physical harm. Hinds
verbally harassed her from the street, and on one occasion,
his police officer friends told her to go back to America or
she would “end up dead.” Her neighbors intervened,
however, and she was not harmed. Hinds left a bullet on her
friend’s porch, but Dawson no longer lived there. Without
more, these incidents do not constitute torture or compel a
finding that future torture is likely. See 8 C.F.R.
§ 1208.18(a)(2) (torture “does not include lesser forms of
cruel, inhuman or degrading treatment”); see, e.g., Vitug v.
Holder, 723 F.3d 1056, 1066 (9th Cir. 2013) (record did not
compel finding that petitioner who was beaten several times
in Philippines would more likely than not be tortured if
returned); Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029–
16 DAWSON V. GARLAND
30 (9th Cir. 2019) (petitioner did not show more likely than
not that he would be tortured, even though he received two
death threats from private actors). In fact, we have often
found that such incidents do not create a well-founded fear
of future persecution to support an asylum claim, which has
a lower burden than the standard for torture under CAT. See
Singh, 764 F.3d at 1163; see, e.g., Gu v. Gonzales, 454 F.3d
1014, 1020–22 (9th Cir. 2006) (record did not compel
finding of past persecution when petitioner struck in back of
head ten times with rod).
The dissent argues that Nuru does not support our
conclusion because Nuru discusses changed country
conditions, not changed personal circumstances. Dissent
at 21. This is a misreading of Nuru, which directs us to
consider whether “circumstances or conditions have
changed significantly, not just in general, but with respect to
the particular individual,” 404 F.3d at 1218 (emphasis
added), and further holds that the adjudicator must conduct
“an individualized analysis of how changed conditions will
affect the specific petitioner’s situation,” not merely an
analysis of “[i]nformation about general changes in the
country,” id. at 1218 n.6 (cleaned up). In evaluating a CAT
claim, we must consider “all evidence relevant to the
possibility of future torture,” Wakkary v. Holder, 558 F.3d
1049, 1068 (9th Cir. 2009) (citation omitted), including
changes to the petitioner’s individual circumstances. See
Konou v. Holder, 750 F.3d 1120, 1126 (9th Cir. 2014)
(despite petitioner’s evidence of past torture due to sexual
orientation, BIA’s denial of CAT relief supported by
substantial evidence, including evidence that he was no
longer a homeless child but a “self[-]sufficient homosexual
adult”).
DAWSON V. GARLAND 17
Because the record in its entirety does not compel a
contrary result, we must uphold the BIA’s finding that
petitioner did not show that more likely than not, she will
face torture if returned to Jamaica.
II. Relocation
The second issue is whether the BIA erred by failing to
consider evidence that petitioner cannot safely relocate if
returned to Jamaica. In assessing CAT claims, the BIA must
consider all evidence, including “[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.” See 8 C.F.R.
§ 1208.16(c)(3)(ii). A petitioner is not required to prove that
internal relocation is impossible; rather, relocation is just one
factor the BIA must consider in assessing the likelihood of
future torture and is not determinative on its own. See
Maldonado v. Lynch, 786 F.3d 1155, 1162–64 (9th Cir.
2015) (en banc). The record must contain evidence that a
general or specific area exists where the petitioner could
safely relocate within the country of removal. Xochihua-
Jaimes, 962 F.3d at 1186–87.
Dawson argues that the record does not contain evidence
of a general or specific area where she can safely relocate in
Jamaica. She contends that the BIA failed to consider her
testimony regarding how Hinds is well connected in the
Jamaican government and will be able to track her down and
prevent her from safely relocating. She also points to country
reports which show how Jamaica is a relatively small island,
which makes it easier for people to be tracked down.
Here, the IJ stated that evidence of relocation would be
considered and subsumed the analysis within the discussion
of the likelihood of future torture and government
acquiescence. The IJ noted that Hinds’ purported
18 DAWSON V. GARLAND
connections to the government did not prevent Dawson from
obtaining and enforcing the protection order. The protection
order allowed her to stay in Hinds’ home, and the Jamaican
police were responsive to reports when Hinds violated the
protection order, arresting him on one occasion. The BIA
agreed with the IJ that the protection order significantly
diminished the level of harm and helped ensure Dawson’s
safety while living in Jamaica. The BIA also agreed that the
country reports were insufficient to show that individually,
Dawson more likely than not would be tortured if removed
to Jamaica. The record further demonstrates that before
returning to the United States, Dawson was able to relocate
to her friend’s house in Spanish Town where she had no
physical contact with Hinds. In the context of the protection
order, the record supports a finding that Dawson can safely
relocate within Jamaica. Because the evidence does not
compel a different conclusion from the one which the BIA
reached, we must affirm.
III. Country Reports
The final issue is whether the IJ appropriately considered
all of petitioner’s evidence, including her country reports. To
qualify for deferral, petitioner must demonstrate that she, in
particular, would more likely than not face torture upon
return to Jamaica. See 8 C.F.R. § 1208.16(c)(2); Zheng,
644 F.3d at 835–36 (rejecting torture claim where “claims of
possible torture remain speculative”). For us to reverse the
BIA with respect to a finding of fact, the evidence must
compel a different conclusion from the one which it reached.
See Elias-Zacarias, 502 U.S. at 481 n.1.
Petitioner argues that the IJ did not consider or give
proper weight to the country reports about treatment of
women in Jamaica, which petitioner asserts demonstrate a
particularized risk of violence to her. The circumstances of
DAWSON V. GARLAND 19
Jamaican women in general, however, do not vitiate the
agency’s specific findings as to petitioner’s situation with
Hinds. While country conditions include generalized
domestic violence against women, this does not compel a
conclusion that petitioner will more likely than not be
subjected to violence from Hinds or his associates.
Because the record does not compel a contrary result, we
must uphold the BIA’s finding that the IJ appropriately
considered all of petitioner’s evidence, including her country
reports. Therefore, we affirm the BIA and deny the petition
for review.
PETITION DENIED.
M. SMITH, Circuit Judge, dissenting:
An applicant is entitled to relief pursuant to CAT if she
establishes that “it is more likely than not that . . . she would
be tortured if removed to the proposed country of removal,”
and that a public official would acquiesce in that torture.
Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013)
(internal quotation marks and citation omitted).
The record in this case compels the conclusion that
Dawson will more likely than not be tortured if returned to
Jamaica. When an applicant who has previously been
tortured seeks relief under CAT, the “principal factor” on
which we rely for evaluating the likelihood of future torture
is past torture. Nuru v. Gonzales, 404 F.3d 1207, 1217–18
(9th Cir. 2005). Here, the record reflects that Dawson
endured severe torture at the hands of her ex-partner, Robert
Hinds.
20 DAWSON V. GARLAND
The majority omits the gory details of Hinds’s abuse of
Dawson, notwithstanding the fact that our case law requires
that we consider them in determining whether Dawson is
entitled to relief. Let me supply the details. Dawson met
Hinds in 2006 while she was living in a domestic violence
shelter in Arizona. Hinds began abusing her—he sat outside
her work, watching her all day, threatened to “beat on [her]”
if he saw her with anyone else, and physically hurt her “quite
often.” He “threatened to kill [her] if [she] left him.”
Once Dawson and Hinds were deported to Jamaica, the
abuse escalated to torture. Hinds confined Dawson to his
home, which had “bars wrapped around [it] . . . like a prison”
and “blood spattered on the walls.” Dawson learned from
Hinds’s aunt that his previous girlfriend lived in the house
prior to Dawson moving in, and the blood was from their
fights. Hinds supposedly “kicked the baby out of” his
previous girlfriend when she was six months pregnant.
From that moment on, Hinds “constantly” beat, raped,
threatened, stole from, and otherwise controlled Dawson.
Hinds either locked Dawson in his house or forced her to
accompany him everywhere he went, “watching [her] every
move.” Hinds assured Dawson that “if [she] ever tried to
escape that he would cut [her] head off and put it in [a ditch
on his family’s property].” Hinds “kicked [her] and pushed
[her] directly into [burning] coals,” beat her to the ground
and “stomped [her] in the stomach,” “hit [her] on the side of
[her] head with a water bottle,” and “threatened to kill [her]”
with a machete. Hinds’s friends, most of whom were police
officers, also threatened Dawson, telling her that they would
kill her and leave her “body at the side of the road.”
To this day, Dawson has “scars on [her] back, stomach,
legs, hands, and elbows.” As my colleagues note, Dawson
was hospitalized for two months for a blood clot that left her
DAWSON V. GARLAND 21
“throwing up blood.” Her injury was a result of Hinds
“punching [her] in the stomach.” In Dawson’s own words,
she was just “lucky to be alive” after a four-pint-blood
transfusion.
Hinds’s abuse clearly constitute acts of torture under our
case law. As we held in Avendano-Hernandez v. Lynch,
800 F.3d 1072, 1079 (9th Cir. 2015), rape, severe beatings,
and threats “certainly rise[] to the level of torture for CAT
purposes.” Similarly, in Xochihua-Jaimes v. Barr, 962 F.3d
1175, 1188 (9th Cir. 2020), we concluded that multiple
instances of rape over the petitioner’s lifetime, along with
ongoing death threats, amounted to past torture. In both
cases, we remanded with instructions for the agency to grant
the petitioners CAT relief because the level of past torture
sufficiently demonstrated the likelihood of future torture,
“particularly in the form of sexual abuse.” Xochihua-
Jaimes, 962 F.3d at 1188; see also Avendano-Hernandez,
800 F.3d at 1079–80, 1082.
My colleagues turn blind eyes to the facts in Dawson’s
case. They consider only what happened after Dawson
successfully sought a protection order against Hinds because
they contend that the protection order changed Dawson’s
circumstances significantly. Slip Op. at 14–15. In support
of this conclusion, my colleagues cite Nuru, 404 F.3d
at 1218. Notably, however, Nuru discusses changed country
conditions, not changed personal circumstances. In Nuru,
we explained that the “changed conditions” analysis that
applies “in asylum and withholding of removal cases” also
“applies in the torture context.” 404 F.3d at 1218 n.6. Our
primary contention was that “[i]nformation about general
changes in the country is not sufficient” to establish changed
conditions. Id.
22 DAWSON V. GARLAND
This makes sense given that the vast majority of our
“changed conditions” case law in the immigration context
concern changes in the immigrant’s specific country of
origin. Our CAT case law only tangentially refers to a
change in personal circumstances as a relevant changed
condition. See, e.g., Konou v. Holder, 750 F.3d 1120, 1126
(9th Cir. 2014) (holding the petitioner’s circumstances
changed because he was no longer a child but “a
self[-]sufficient homosexual adult”) (quotation marks
omitted). Instead, the relevant change is usually a coup in
the petitioner’s country of origin, or that country’s growing
acceptance of that a certain minority group. See, e.g., Chand
v. INS, 222 F.3d 1066, 1078–79 (9th Cir. 2000);
Smolniakova v. Gonzales, 422 F.3d 1037, 1051–52 (9th Cir.
2005); see also Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th
Cir. 2008) (“[J]ust as changed country conditions can defeat
an asylum claim, they can also defeat a claim for CAT
protection.”). How Nuru’s discussion of changed country
conditions supports my colleagues’ conclusion in Dawson’s
case remains unclear—it is undisputed that Jamaica’s
conditions have not changed since Dawson was brutally
tortured there.
In CAT cases, our case law specifically requires the BIA
“to consider all evidence relevant to the possibility of future
torture.” Parada v. Sessions, 902 F.2d 901, 914–15 (9th Cir.
2018) (emphasis added). Obviously, this would include past
torture, which begs the question of whether it is even proper
for us to ignore any part of the record—as the majority does
with Dawson’s pre-protection order abuse—in denying CAT
relief.
Even assuming arguendo that a significant change in
personal circumstances is sufficient to render past torture
irrelevant in determining future torture, Dawson’s
DAWSON V. GARLAND 23
circumstances did not significantly change. Post issuance of
the protection order, the physical abuse Dawson suffered
may have diminished, but Hinds remained obsessively
fixated on stalking her, hurting her, and even killing her,
which by themselves constitute torture.
In Dawson’s own words, the protection order “didn’t
stop [Hinds],” “he constantly violated [it].” “[O]nce every
two days [Hinds] would drive by the house,” “[h]it the glass
doors,” and harass and intimidate Dawson. See contra Slip
Op. at 14–15. Hinds entered the home twice. The first time
was right after the judge issued the protection order. Hinds
ran to the shared home, pulled a door off its frame, and
“dragged [Dawson] out of the house.” Hinds returned to the
home one hour later, armed with a gun, and “shot out one of
the outdoor lights.” The second time was two years later,
right after the judge issued a permanent protection order
against him. This order “of course made [Hinds] very mad
. . . [and he] came up to the house and started yelling at his
friends to come help him to ‘beat this woman,’ referring to
[Dawson].” Because the situation with Hinds “was getting
really, really serious,” Dawson fled to Spanish Town to stay
with a friend. Yet Hinds found her and continued stalking
her. Hinds went so far as visiting the friend’s daughter’s
school—all to threaten Dawson. Hinds’s threats continued
after Dawson left Jamaica: he left a bullet on the doorstep of
Dawson’s friend’s home in Spanish Town.
Dawson remains certain that if she is returned to
Jamaica, Hinds will kill her or have her killed by someone
on his behalf. The protection order, therefore, did not solve
the problem—Hinds continued to be a dangerous,
threatening presence in Dawson’s life. Because Dawson’s
circumstances did not significantly change after the issuance
of the protection order, we must consider Hinds’s actions
24 DAWSON V. GARLAND
within the context of the severe torture Dawson suffered at
his hands.
When considered in its entirety, Dawson’s case most
closely resembles Xochihua-Jaimes. In that case, the
petitioner’s partner severely abused, raped, and threatened
her. Xochihua-Jaimes, 962 F.3d at 1180. Even after she
managed to separate from him, he molested her children,
broke into her home, and directed his friends to harass,
intimidate, and threaten her. Id. We ultimately concluded
that the petitioner’s showing of past torture demonstrated a
likelihood of future torture, even though her ex-partner had
been arrested and imprisoned. Id. at 1180, 1188. We held
that the ongoing death threats from those associated with her
abuser “demonstrate[d] some likelihood that she would
again suffer severe assault or indeed, . . . death.” Id.Dawson’s case compels the same conclusion.
I respectfully dissent.