18-1801 Akre v. Garland BIA Mulligan, IJ A209 386 096 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of May, two thousand twenty-one.

PRESENT: ROBERT A. KATZMANN, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________

AWOH FRANCK DOMINIQUE DIDIER AKRE, AKA AWOH FRANCK D. AKRE Petitioner,

v. 18-1801 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Rachel G. Skaistis, Dean Nickles, Cravath, Swaine & Moore LLP, New York, NY; Jennifer Williams, The Legal Aid Society, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Jonathan Robbins, Senior Litigation Counsel; Patricia E. Bruckner, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED.

Petitioner Awoh Franck Dominique Didier Akre, a native

and citizen of Côte d’Ivoire, seeks review of a June 5, 2018,

decision of the BIA affirming a January 25, 2018, decision of

an Immigration Judge (“IJ”) denying asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). See In re Awoh Franck Dominique Didier Akre, No.

A209 386 096 (B.I.A. June 5, 2018), aff’g No. A209 386 096

(Immig. Ct. N.Y. City Jan. 25, 2018). We assume the parties’

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by

the BIA. See Yan Chen v. Gonzales,

(2d

Cir. 2005). The applicable standards of review are well

established. See

(b)(4)(B); Yanqin Weng v.

Holder,

(2d Cir. 2009). We assume, as the

BIA did, that the government of Côte d’Ivoire was unable or

2 unwilling to protect Akre from the persecution he suffered

and fears. See Yan Chen, 417 F.3d at 271–72.

The agency failed to adequately consider the record in

determining that Akre, who was presumed to have a well-founded

fear of persecution on account of past persecution stemming

from his conversion to Islam, could safely relocate within

Côte d’Ivoire to avoid future harm. An applicant who has

suffered past persecution is presumed to have a well-founded

fear of future persecution. See

(b)(1).

The Government may rebut this presumption by establishing

that the applicant can reasonably relocate, but “it shall be

presumed that internal relocation would not be reasonable,

unless the [Government] establishes by a preponderance of the

evidence that, under all the circumstances, it would be

reasonable for the applicant to relocate.”

(b)(3)(ii) (2013). In determining whether internal

relocation would be reasonable, the IJ considers “whether the

applicant would face other serious harm in the place of

suggested relocation; any ongoing civil strife within the

country; administrative, economic, or judicial

infrastructure; geographical limitations; and social and

cultural constraints, such as age, gender, health, and social

3 and familial ties.”

§ 1208.13(b)(3) (2013).

The agency found that Akre could reasonably and safely

relocate to northern Côte d’Ivoire because the northern part

of the country is predominantly Muslim, the government

encourages religious tolerance, and Akre could find

employment as a trained air conditioning technician. But the

agency erroneously ignored the evidence supporting that

internal relocation to the northern part of the country might

be unreasonable in several ways. First, the IJ erred in

finding irrelevant Akre’s identifiability as a member of his

tribe because that evidence was relevant to whether his

persecutor could easily locate him should he relocate to

northern Côte d’Ivoire where members of his tribe do not

usually reside. Second, the BIA applied an incorrect

standard when evaluating the relevance of Akre’s

identifiability as a member of his tribe and finding it

“unclear . . . that such distinction would render his

relocation unreasonable,” Certified Admin. Record 4, because

his relocation was presumed unreasonable until shown by the

Government to be reasonable, see

(b)(1)(i)(B) (2013). Third, the agency erred in

finding evidence of political, social, and religious unrest

4 and generally harsh conditions in the country outdated and

unrelated to Akre’s case because the evidence indicated that

similar volatile conditions remain and such conditions were

relevant to the reasonableness of relocation. See

§ 1208.13(b)(3) (2013). Lastly, the agency failed to

acknowledge the evidence that the criminal activities of

security forces and other groups restrict freedom of movement

in much of northern Côte d’Ivoire.

Because the agency failed to consider relevant evidence

that Akre could easily be located due to his tribal identity,

that civil strife is ongoing, and that internal movement is

restricted, it erred in relying solely on evidence that the

northern part of Côte d’Ivoire is predominantly Muslim and

that the government encourages religious tolerance to

conclude that it would be reasonable for Akre to relocate to

northern Côte d’Ivoire “under all the circumstances.” Id. §

1208.13(b)(3)(ii) (2013). Accordingly, we remand for the

agency to consider all relevant evidence related to the

reasonableness of internal relocation to northern Côte

d’Ivoire. See id. § 1208.13(b)(1)(ii), (3)(ii); Yan Chen,

417 F.3d at 272–73 (providing that remand is required when

agency overlooks or fails to consider material evidence).

5 Likewise, the BIA erroneously found that Akre could

alternatively relocate within southern Côte d’Ivoire because

that finding is not supported by substantial evidence. Given

Akre’s persecutor has already located and attacked him in

southern Côte d’Ivoire, it is unreasonable for him to relocate

there. Accordingly, we remand for the agency to reconsider

the reasonableness of internal relocation within southern

Côte d’Ivoire. See Tambadou v. Gonzales,

(2006) (“We remand for reconsideration . . . where the IJ’s

or BIA’s determination is based on an inaccurate perception

of the record . . . .” (internal quotation marks and citation

omitted)).

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED to the BIA. All pending motions and applications

are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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