Twum v. Barr, 930 F.3d 10

Background

Petitioner Jennifer Twum, a Ghanaian national, entered the U.S. on a J-2 visa, divorced her U.S.-based abusive husband (Asumadu-Baffi) in 2002, later married a U.S. citizen (Tolson), and faced removal after loss/revocation of an approved I-130.
IJ ordered removal in 2009 and again in 2011; BIA affirmed the 2011 removal order in 2012. Twum remained in the U.S. and later divorced Tolson.
In March 2018 Twum moved to reopen, seeking: special‑rule cancellation of removal for battered spouses, asylum, withholding of removal, and CAT relief; she alleged past abuse by Asumadu‑Baffi and fears of FGM, forced marriage, and return to the abuser if removed to Ghana.
BIA denied reopening as untimely, found Twum failed to show eligibility for the special‑rule waiver or cancellation and found no material changed country conditions for FGM claims; it did not clearly resolve whether her past abuse constituted past persecution or whether the presumption of future persecution was rebutted.
Twum appealed to the First Circuit contesting the BIA’s denial as to (1) special‑rule cancellation and (2) asylum, withholding, and CAT relief based on changed conditions and past persecution.

Issues

Issue	Twum's Argument	Barr's Argument	Held
Jurisdiction to review BIA denial of special‑rule cancellation/timeliness waiver (8 U.S.C. §1229b/§1252)	Twum argued she clearly met eligibility predicates for waiver and cancellation and the BIA’s denial is reviewable.	Gov argued statute vests discretion in the Attorney General, so courts lack jurisdiction to review eligibility findings or discretionary denials under §1252(a)(2)(B).	Court: Dismissed Twum’s special‑rule claims for lack of jurisdiction under binding precedent (Castro).
Whether BIA erred in denying reopening for asylum/withholding/CAT based on changed country conditions re FGM and related practices	Twum argued evidence shows risk of FGM and other practices and thus changed country conditions or prima facie entitlement to relief.	Gov argued evidence did not show material changed conditions or a realistic likelihood of persecution.	Court: Affirmed BIA’s conclusion that Twum failed to show changed country conditions re FGM (no intensified conditions).
Whether BIA adequately addressed asylum claim based on past abuse and return of ex‑husband (future harm)	Twum argued she suffered past persecution and the return of ex‑husband creates a reasonable likelihood of future persecution; entitlement to regulatory presumption.	Gov contended Twum’s threats/abuse were remote and speculative; BIA reasonably found fear speculative.	Court: Vacated in part and remanded—BIA’s analysis was unclear about whether it accepted past persecution or properly applied/rebutted the presumption; remand required for reasoned findings.
Whether remand should extend to withholding and CAT claims	Twum sought withholding and CAT relief alongside asylum.	Gov made no separate convincing argument distinguishing these claims.	Court: Remanded withholding and CAT claims for further proceedings consistent with asylum analysis.

Key Cases Cited

Joseph v. Lynch, 793 F.3d 739 (7th Cir. 2015) (courts may lack jurisdiction to review discretionary timeliness waivers)
Guzman‑Munoz v. U.S. Att’y Gen., 733 F.3d 1311 (11th Cir. 2013) (determination that alien was not a battered spouse is discretionary and not reviewable)
Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (BIA determinations about whether one was "battered or subjected to extreme cruelty" are application-of-law-to-fact and reviewable only for legal error)
Castro v. Holder, 727 F.3d 125 (1st Cir. 2013) (BIA’s determination that an alien was not "battered or subjected to extreme cruelty" is discretionary and not subject to judicial review)
Gitau v. Sessions, 878 F.3d 429 (1st Cir. 2017) (distinguishing eligibility questions from discretionary grants when regulatory criteria create objective standards)
Mele v. Lynch, 798 F.3d 30 (1st Cir. 2015) (courts cannot relitigate discretionary balancing protected by congressional jurisdictional limits)
Smith v. City of Jackson, 544 U.S. 228 (2005) (presumption that identical statutory language has the same meaning)
Kucana v. Holder, 558 U.S. 233 (2010) (distinguishing reviewability of regulatory discretionary rules from discretionary decisions specified by statute)
Haizem Liu v. Holder, 727 F.3d 53 (1st Cir. 2013) (changed‑country‑conditions standard requires showing intensification, not mere continuation)