Delphine Arrey v. William Barr
916 F.3d 1149
| 9th Cir. | 2019Background
- Delphine Arrey, a Cameroonian national, entered the U.S. in 2015 without a valid passport and was placed in removal proceedings; she applied for asylum, withholding of removal, and CAT protection.
- Arrey alleged long-term sexual and physical abuse by Jean Thomas in Cameroon, fled to South Africa in 2007 (obtained refugee status), returned briefly to Cameroon in 2014, then traveled through Nigeria and Mexico to the U.S. after further threats/assaults.
- At multiple immigration hearings Arrey sought continuances to obtain retained counsel; on April 6, 2016 the IJ proceeded after finding dilatory conduct and concluded Arrey abandoned her asylum claim, found parts of her testimony not credible, and denied relief.
- The BIA reversed the IJ’s adverse credibility findings (assumed Arrey credible), but concluded Arrey was firmly resettled in South Africa and limited consideration of pre‑return harms; it affirmed denial of asylum and withholding and held Arrey could safely relocate in Cameroon (denying CAT relief).
- On judicial review, the Ninth Circuit held Arrey was given reasonable opportunity to obtain counsel and was not denied a neutral adjudicator (despite IJ’s harshness), but found legal errors on firm resettlement and insufficient evidence supporting the Board’s CAT relocation finding.
- The Ninth Circuit granted the petition in part and remanded for reconsideration consistent with its rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did IJ deny due process by forcing Arrey to proceed without counsel? | Arrey: no valid waiver; IJ refused reasonable additional continuance to secure retained counsel. | Government: IJ granted multiple continuances, warned petitioner, took reasonable steps (called attorney), and denial was not an abuse of discretion. | Held: No due‑process violation; IJ provided reasonable time to obtain counsel. |
| Did IJ/BIA violate due process by being biased/hostile? | Arrey: IJ’s hostile conduct intimidated and prevented fair hearing. | Government: Harsh questioning tolerated; IJ still conducted full hearing and made findings. | Held: No biased‑adjudicator violation; harshness not shown to have prejudiced outcome (and BIA later credited testimony). |
| Did BIA misapply the firm‑resettlement rule to bar consideration of prior persecution and to bar asylum? | Arrey: Board ignored step‑two inquiry and evidence that South Africa did not offer a safe haven; firm resettlement should not preclude consideration of prior harms or withholding claims. | Government: Arrey was firmly resettled in South Africa (refugee status), so asylum relates only to post‑return events. | Held: BIA erred as a matter of law: failed to analyze step two, wrongly ignored evidence of persecution in South Africa, applied firm‑resettlement improperly to limit evidence and erroneously to withholding claims. Remand required. |
| Did substantial evidence support denial of CAT relief based on safe internal relocation? | Arrey: Credible testimony that Thomas’s connections let him track her; relocation not safe; government provided no contrary country evidence. | Government: Thomas’s single post‑return encounter does not show he can locate/torture her anywhere in Cameroon; relocation feasible. | Held: Substantial evidence did not support Board’s relocation finding; remand for reconsideration of CAT claim. |
Key Cases Cited
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (standard: BIA legal conclusions reviewed de novo; factual findings for substantial evidence)
- Tawadrus v. Ashcroft, 364 F.3d 1099 (9th Cir. 2004) (valid waiver of right to counsel requires specific inquiry and knowing, voluntary assent)
- Biwot v. Gonzalez, 403 F.3d 1094 (9th Cir. 2005) (IJs must give reasonable time to obtain counsel and continuances reviewed for abuse of discretion)
- Colmenar v. I.N.S., 210 F.3d 967 (9th Cir. 2000) (due process requires neutral adjudicator; hostile conduct may violate fairness if outcome potentially affected)
- Siong v. I.N.S., 376 F.3d 1030 (9th Cir. 2004) (firm resettlement does not bar consideration of persecution in resettlement country for withholding/CAT claims)
- Yang v. I.N.S., 79 F.3d 932 (9th Cir. 1996) (firmly resettled aliens are ordinarily not subject to persecution)
- Singh v. Lynch, 802 F.3d 972 (9th Cir. 2015) (adverse credibility findings cannot be based on pure speculation)
- Gonzales v. Thomas, 547 U.S. 183 (2006) (where BIA has not reached an issue, courts should remand for BIA consideration)