NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 29 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARIA TOMAS JUAN,                               No.    18-70805

                Petitioner,                     Agency No. A088-362-214

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted July 10, 2020
                               Portland, Oregon

Before: M. MURPHY,** BENNETT, and MILLER, Circuit Judges.

      Maria Tomas-Juan, a native and citizen of Guatemala, petitions for

review from the Board of Immigration Appeals’ (“BIA”) decision affirming

an immigration judge’s (“IJ”) denial of her applications for withholding of




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
removal and protection under the Convention Against Torture (“CAT”). We

have jurisdiction under 8 U.S.C. § 1252(a)(1).

      1. To be entitled to withholding of removal, a petitioner must

demonstrate her “life or freedom” would be threatened in her home country

because of, inter alia, “membership in a particular social group.” 8 U.S.C.

§ 1231(b)(3)(A). The petitioner can meet this burden by (1) establishing a

fear of future persecution based on past persecution or (2) independently

establishing “it is more likely than not that [she] would be threatened in the

future” on the basis of membership in a particular social group. 8 C.F.R.

§ 1208.16(b). If the petitioner can establish past persecution, a presumption

arises that she is entitled to withholding of removal because it is presumed

that her life or freedom will be threatened in the future if she is removed.

Baballah v. Ashcroft, 

, 1079 (9th Cir. 2004). The

presumption is rebutted when the government shows, by a preponderance of

the evidence, that there has been a fundamental change in circumstances or

that the petitioner could avoid future persecution by relocating within her

home country. 8 C.F.R. § 1208.16(b)(1)(i)–(ii).

      In an order dated February 15, 2017, the BIA concluded the past harm

Ms. Tomas-Juan suffered at the hands of her husband rose to the level of

persecution. It remanded the matter to the IJ to determine, inter alia,


                                       2                                  18-70805
whether Ms. Tomas-Juan’s past persecution was on account of a protected

ground. On remand, the IJ found that even if Ms. Tomas-Juan could

establish she is a member of a legally cognizable particu lar social group, she

failed to establish she is more likely than not to suffer future persecution in

Guatemala on account of her membership in such group. The BIA

dismissed Ms. Tomas-Juan’s appeal, concluding the IJ did not err in finding

that even assuming Ms. Tomas-Juan was a member of a cognizable

particular social group, she does not face a clear probability of persecution

if returned to Guatemala.

      The approach taken by the IJ and approved by the BIA is legally

flawed. Because Ms. Tomas-Juan established past persecution, the burden

shifted to the Attorney General to establish, by a preponderance of the

evidence, that there has been a fundamental change in circumstances or that

Ms. Tomas-Juan could avoid future harm by relocating to another part of

Guatemala. 1 8 C.F.R. § 1206.16(b)(1)(ii). The IJ’s statement that Ms.

Tomas-Juan “has not established that she is more likely than not to suffer



      1
       This is true even though both the IJ and the BIA assumed, rather than
found, that Ms. Tomas-Juan was a member of a cognizable particular social
group and there was a nexus between her past persecution and her
membership in that group. Cf. Hanna v. Keisler, 

, 938 (9th
Cir. 2007) (applying the presumption after assuming the petitioner suffered
past persecution).

                                       3                                  18-70805
future persecution,” shows the burden was erroneously placed on Ms.

Tomas-Juan to establish she is likely to face future persecution if returned to

Guatemala. Because of the error in allocating the burden of proof, we grant

the petition and the Attorney General’s motion and remand to the BIA for

reconsideration of Ms. Tomas-Juan’s withholding of removal claim. See

INS v. Orlando Ventura, 

, 16–17 (2002) (per curiam).

      2. Because of the potential overlap of evidence between Ms. Tomas -

Juan’s withholding of removal claim and her CAT claim, we also remand

for further consideration of Ms. Tomas-Juan’s eligibility for CAT relief. Cf.

Afriyie v. Holder, 

, 937 (9th Cir. 2010). Ms. Tomas-Juan

requests that we grant CAT protection, but we decline to do so on the

current record. Cf. Haile v. Holder, 

, 1133 (9th Cir. 2011).

      PETITION FOR REVIEW GRANTED; REMANDED.




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