PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-1439 ROSA DEL CARMEN ORTEZ-CRUZ, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: October 30, 2019 Decided: February 26, 2020 Before DIAZ, HARRIS, and RUSHING, Circuit Judges. Petition for review granted in part, denied in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Harris and Judge Rushing joined. ARGUED: Jeremy Layne McKinney, MCKINNEY IMMIGRATION LAW, Greensboro, North Carolina, for Petitioner. Ann M. Welhalf, UNITED STATES DEPARMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Ann Marie Dooley, Jesse Simon vanVoorhees Taft, MCKINNEY IMMIGRATION LAW, Greensboro, North Carolina, for Petitioner. Joseph H. Hunt, Assistant Attorney General, Stephen J. Flynn, Assistant Director, Kathryn M. McKinney, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. DIAZ, Circuit Judge: Rosa Del Carmen Ortez-Cruz, a Honduran native and citizen, seeks both withholding of removal and protection under the Convention against Torture (the “CAT”). If repatriated, she fears that her abusive ex-partner may try to kill her although he hasn’t contacted her in many years. Because Ortez-Cruz has suffered past persecution due to her membership in particular social groups, the Board of Immigration Appeals recognized that she is entitled to a presumption that her life or freedom will be threatened if she returns to Honduras (the “future-threat presumption”), as required to qualify for withholding of removal. The Board found that the government rebutted this presumption, however, by proving two conditions: that Ortez-Cruz’s circumstances had fundamentally changed—i.e., that her ex-partner no longer posed a threat—and that Ortez-Cruz can avoid harm by relocating within Honduras. On these two alternative grounds, the Board denied withholding of removal. The Board also denied her CAT claim. We conclude that the Board erred in finding that the government rebutted the future- threat presumption. It was the government’s burden to prove either condition that rebuts the presumption, and the record doesn’t support a finding that it did so. Accordingly, we vacate the Board’s denial of withholding of removal and remand with instructions that the agency grant relief on that claim. We affirm the Board’s denial of Ortez-Cruz’s CAT application, however, because the record supports the Board’s finding that she didn’t meet the burden of proof for that claim. 2 I. Ortez-Cruz entered this country illegally in or around January 2002. In September 2013, the Department of Homeland Security charged her with removability and issued a notice to appear for a hearing. Ortez-Cruz conceded removability and applied for withholding of removal and for protection under the CAT. 1 Ortez-Cruz testified through an interpreter at two hearings before an Immigration Judge (“IJ”). 2 We begin by summarizing the testimony and evidence and then describe the IJ’s and the Board’s decisions. A. Ortez-Cruz met her former partner, Jose Genaro Auceda, in 1997, in Tegucigalpa, Honduras, when she was sixteen years old and he was about twenty-seven. They began a ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals