Karlena Dawson v. Merrick Garland
998 F.3d 876
9th Cir.2021Background
- Petitioner Karlena Dawson, a Jamaican national, was removed to Jamaica in 2014 after a drug-conviction sentence; she attempted reentry in 2019, expressed fear of return, and was found to have a credible fear. She sought only deferral of removal under the Convention Against Torture (CAT) because her conviction precluded asylum/withholding.
- Dawson testified that her former partner, Robert Hinds, subjected her to severe physical abuse and torture while living with him in Jamaica (beatings, burns, threats, hospitalization). She obtained a court protection order in 2016 and a five-year stay-away order in 2018.
- After the protection order, Hinds no longer lived in the household but continued intermittent harassment: driving by, verbal threats, two physical intrusions (one slap/push), and leaving a bullet at a friend’s door after Dawson left Jamaica. Neighbors sometimes intervened; police at times responded and once arrested Hinds for violating the order.
- The IJ assumed Dawson had been tortured in the past but found changed circumstances (the protection order and Hinds’ removal from the household) reduced the likelihood she would be tortured if returned; the IJ also found no clear evidence the government would acquiesce.
- The BIA affirmed, concluding the record did not compel a finding that Dawson would more likely than not be tortured if returned, and that the IJ properly considered country reports and relocation evidence. The Ninth Circuit majority denied the petition; a dissent argued the record compels CAT relief based on past torture and ongoing threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Likelihood of future torture under CAT | Dawson: Past torture by Hinds and continuing threats make future torture more likely than not. | BIA/IJ: Post-protection-order changes and diminished contact make future torture not more likely than not. | Court: Affirmed BIA; record does not compel finding of likelihood of future torture. |
| Ability to relocate safely within Jamaica | Dawson: Hinds’ connections and Jamaica’s small size make safe internal relocation impossible. | BIA/IJ: Protection order and Dawson’s prior relocation to Spanish Town show she could relocate and avoid torture. | Court: Affirms BIA; evidence does not compel contrary conclusion about possible safe relocation. |
| Consideration of country reports and totality of evidence | Dawson: IJ/BIA failed to give proper weight to country reports showing systemic violence against women and to the totality of past abuse. | BIA/IJ: Country reports do not contradict individualized finding that Dawson herself is not more likely than not to be tortured. | Court: IJ appropriately considered the reports; generalized country conditions do not compel reversal. |
Key Cases Cited
- Avendano-Hernandez v. Lynch, 800 F.3d 1072 (9th Cir. 2015) (past rape/severe abuse can constitute torture for CAT).
- Nuru v. Gonzales, 404 F.3d 1207 (9th Cir. 2005) (changed circumstances can undercut inference that past torture predicts future torture; must analyze changes with respect to the individual).
- Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020) (past severe sexual abuse and ongoing threats can support a finding of likely future torture).
- Elias-Zacarias v. INS, 502 U.S. 478 (1992) (administrative factual findings upheld unless evidence compels contrary conclusion).
- Zheng v. Holder, 644 F.3d 829 (9th Cir. 2011) (standard for reversing BIA factual determinations requires evidence that compels a different result).
- Parada v. Sessions, 902 F.3d 901 (9th Cir. 2018) (BIA must consider all evidence relevant to possibility of future torture).
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (requirement to consider all evidence relevant to future torture).
- Maldonado v. Lynch, 786 F.3d 1155 (9th Cir. 2015) (internal relocation is a factor to be considered but is not dispositive in CAT analysis).