FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


YVETTE NGMENANG AKOSUNG,                 No. 17-72829
                    Petitioner,
                                          Agency No.
                v.                       A209-129-271

WILLIAM P. BARR, Attorney General,
                       Respondent.        OPINION

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

       Argued and Submitted February 3, 2020
                 Phoenix, Arizona

                Filed August 14, 2020

     Before: Susan P. Graber, Andrew D. Hurwitz,
          and Eric D. Miller, Circuit Judges.

               Opinion by Judge Miller
2                       AKOSUNG V. BARR

                          SUMMARY *


                           Immigration

    Granting Yvette Akosung’s petition for review of the
Board of Immigration Appeals’ decision affirming the denial
of asylum and related relief, and remanding, the panel held
that substantial evidence did not support the Board’s
determinations that: 1) Akosung could relocate within
Cameroon to avoid future persecution or torture;
2) Akosung’s proposed social group of “women resistant to
forced marriage proposals” lacked social distinction; and
3) Akosung failed to establish a clear probability of torture
with government acquiescence.

    The panel concluded that Akosung’s ability to elude her
pursuers at great effort and risk, while in hiding, did not
establish that she would be able to avoid persecution or
torture by relocating within Cameroon.

    The panel also concluded that the record did not support
the Board’s determination that Akosung’s proposed social
group lacked social distinction. The panel explained that to
the extent the Board’s decision rested on a requirement of
ocular visibility, it was inconsistent with Board precedent.
The panel further concluded that to the extent the Board
found that Akosung’s proposed group was not regarded as
distinct in Cameroonian society, that finding was
inconsistent with Akosung’s testimony. The panel rejected
the government’s contention that Akosung waived any

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                    AKOSUNG V. BARR                        3

challenge to the Board’s social distinction determination by
redefining her proposed social group in her briefs to this
court, concluding that her challenge was sufficiently
presented to permit review.

    The panel concluded that the Board’s denial of CAT
protection was flawed because the Board failed to consider
evidence pertaining to government acquiescence; it placed
too much weight on the absence of past torture, without
taking into account evidence that Akosung avoided such
harm by fleeing and going into hiding; and it limited its
analysis to the threat of violence Akosung might face for
resisting marriage, while overlooking the threat of violence,
including possible rape, she would face if forced to marry.


                        COUNSEL

Benjamin T. Wiesinger (argued), Pope & Associates PC,
Phoenix, Arizona, for Petitioner.

Lindsay Pickell (argued), Attorney; Justin R. Markel, Senior
Litigation Counsel; Carl H. McIntyre, Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.
4                   AKOSUNG V. BARR

                        OPINION

MILLER, Circuit Judge:

    Yvette Akosung fled her Cameroonian village after she
was ordered to marry the village chieftain, known as the Fon.
For more than a year, she lived in hiding, moving from place
to place to avoid capture. The Fon’s envoys pursued
Akosung and threatened punishment to anyone who
harbored her. Akosung ultimately made her way to the
United States, where she applied for asylum, withholding of
removal, and protection under the Convention Against
Torture (CAT).

    The immigration judge denied relief on all claims. The
Board of Immigration Appeals then dismissed Akosung’s
appeal, prompting this petition for review. Because the
Board’s reasoning does not account for Akosung’s credible
testimony and otherwise rests on errors of law, we grant the
petition for review and remand for further proceedings.

                              I

    The immigration judge found Akosung to be credible,
determining that her “testimony was believable, consistent,
and sufficiently detailed to provide a plausible, coherent
account of the basis for her fears.” We therefore set out the
facts as Akosung described them.

    Akosung is a native and citizen of Cameroon. Now in her
late twenties, she was born in a village in northwest
Cameroon near the city of Bamenda. The village is ruled by
an all-male council.

   When Akosung was a young child, her father died,
owing the Fon a debt that her family was unable to repay.
                    AKOSUNG V. BARR                       5

Near the end of 2013, the Fon died. Upon the accession of a
new Fon, the council selected Akosung to marry the new Fon
to settle her father’s debt. The new Fon already had 40 or
50 other wives, and Akosung did not wish to join them. She
stated that she did not love the new Fon and would not marry
someone whom she did not love.

    Akosung hoped that the council might change its mind,
but around June 2015, a delegation from the Fon’s palace
arrived at her house to retrieve her for marriage. They
brought ceremonial oil and a bracelet made of shells, which
symbolized that Akosung would become a wife of the Fon.
The custom was that once the bracelet was placed on a
woman, she could not remove it.

    Akosung’s cousin advised her to run away. At the time,
Akosung was attending school to get a degree in nursing. For
the next two months, Akosung hid and attempted to continue
her nursing studies, but it was risky for her to appear in
public, so she could not always attend classes. During that
time, she learned that her family was subject to an
“injunction order,” under which their properties and funds
were seized, their crops were destroyed, and they were
restricted from attending social activities. No one was
permitted to talk to Akosung.

    Around August 2015, Akosung fled to the city of
Douala, a day’s journey away, to hide with a relative. She
hid in Douala for about a year. But even there, word spread
that Akosung had refused to marry the Fon. The Fon had
circulated an edict: “If [Akosung] is seen anywhere, she has
to be taken back to the palace.” When her relative heard the
message, he asked Akosung to leave because he did not want
to face the consequences of harboring her.
6                    AKOSUNG V. BARR

    In September 2016, Akosung left Douala and went to
stay with a friend in the city of Bafut, which was close to her
home town. Almost immediately, word of her arrival leaked,
and another delegation from the palace came to fetch her.
Akosung’s brother helped her resist capture. After a physical
struggle, Akosung ran away and escaped to a city called
Mamfe, on the border with Nigeria. Her cousin reported the
altercation to the Bamenda police. The police said they could
not help because the “[t]he traditional ruler has the final
say,” and the decision of the council “cannot be challenged
before any authority.”

    Akosung stayed in Mamfe for about a month. With the
help of a priest and a customs officer, she was able to cross
the border into Nigeria, then travel through Mexico to
Nogales, Arizona, where she arrived without documentation.
She asked for protection at the port of entry.

    The Department of Homeland Security initiated removal
proceedings against Akosung. After a hearing, the
immigration judge issued an oral decision denying her
applications for asylum, withholding of removal, and
protection under the CAT.

    The Board dismissed Akosung’s appeal. As to asylum
and withholding of removal, the Board determined that
Akosung had not shown “that she would be harmed upon
return to Cameroon on account of her membership in the
asserted particular social group of women resistant to forced
marriage proposals” and that, in any event, she “could
relocate to an area other than the small town where the fon
lives.” As to the CAT claim, the Board concluded that
Akosung “did not establish that it is more likely than not that
she will be tortured by, or ‘at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.’” (quoting 8 C.F.R.
                     AKOSUNG V. BARR                         7

§ 1208.18(a)(1)); see

Board also stated
that Akosung had not experienced past torture and that she
“could reasonably relocate to an area outside the fon’s
control, as she previously did for more than a year.”

                              II

    We begin with the issue of relocation, which is common
to all of Akosung’s claims. The record reflects that Akosung
attempted to hide from her pursuers in several different areas
of Cameroon outside of her home village. In one instance,
she was able to hide with a relative for about a year. But
Akosung’s ability to elude her pursuers at great effort and
risk does not establish that she would be able to avoid
persecution or torture by relocating within Cameroon.

    The asylum regulation makes asylum unavailable if
“[t]he applicant could avoid future persecution by relocating
to another part of the applicant’s country of nationality . . .
and under all the circumstances, it would be reasonable to
expect the applicant to do so.” 8 C.F.R.
§ 1208.13(b)(1)(i)(B).       The      regulation     governing
withholding of removal contains similar text. See

CAT regulation does not bar
relief if an applicant could relocate, but it nevertheless
provides that assessing the likelihood of future torture
requires considering “[e]vidence that the applicant could
relocate to a part of the country of removal where he or she
is not likely to be tortured.”

the asylum and withholding of removal
regulations, the CAT regulation does not include a reference
to the reasonableness of relocation, but we do not think that
anything turns on the distinction here. The government does
not suggest that the standards in the two regulations are
different, and it does not rely on the absence of the word
8                    AKOSUNG V. BARR

“reasonable” in the CAT regulation. To the contrary, in its
discussion of Akosung’s CAT claim, the Board said that it
thought she “could reasonably relocate,” suggesting that it
views reasonableness as an element of that regulation as
well.

    It hardly seems “reasonable to expect” one facing
persecution or torture to become a fugitive and live in hiding.
8 C.F.R. § 1208.13(b)(1)(i)(B); see Doe v. Attorney Gen. of
the United States, 

, 154 (3d Cir. 2020). But even
setting that aside, we do not believe that an applicant can be
said to have the ability to “relocate” within her home country
if she would have to remain in hiding there. As a practical
matter, a living arrangement that involves hiding from the
authorities is necessarily impermanent. When used
intransitively, “relocate” most naturally refers to
resettlement or a change of residence, not the unstable
situation of one who must always be ready to flee. See
Oxford       English      Dictionary     (3d      ed.   2009),
https://www.oed.com/view/Entry/162002 (“[t]o move to a
new location, esp. in order to work; to resettle”); Random
House Webster’s Unabridged Dictionary 1628 (2d ed. 2001)
(“to change one’s residence or place of business; move”).
Moreover, living in hiding does little to establish that a
person is able to “avoid future persecution,” 8 C.F.R.
§ 1208.13(b)(1)(i)(B), or “is not likely to be tortured,”

the contrary, a person who lives in
hiding does so precisely because she continues to be in
danger of being captured and returned to face persecution or
torture. We therefore agree with other circuits that have held
that “[r]elocating to another part of the country does not
mean living in hiding.” Agbor v. Gonzales, 

,
505 (7th Cir. 2007); accord Singh v. Sessions, 

,
522 (5th Cir. 2018); Essohou v. Gonzales, 

, 522
(4th Cir. 2006).
                     AKOSUNG V. BARR                         9

    The government contends that Akosung failed to exhaust
the argument that hiding does not amount to relocation. To
the contrary, Akosung argued to the Board that “there is no
safe place for [her] to internally relocate” because she would
be “hunted down” no matter her location. She emphasized
that the Fon’s orders were sent throughout the region,
making stable relocation impossible. And the Board
considered and rejected Akosung’s argument, concluding
that she had relocated by remaining hidden in Douala for a
year. See Socop-Gonzalez v. INS, 

, 1186 (9th
Cir. 2001) (en banc) (explaining that the exhaustion
requirement is satisfied if the Board in fact considered an
issue).

    On the merits, the record does not support the Board’s
conclusion. We review the agency’s factual findings for
substantial evidence and may set aside a factual
determination only if the record compels a contrary
conclusion. 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-
Zacarias, 

, 481 & n.1 (1992). But even under
that deferential standard, the agency’s conclusion is
unsustainable.

    Akosung’s credible and unrebutted testimony establishes
that, during the period after she left home, she was hiding in
fear of her life and of being captured and taken to the palace
for a forced marriage. The Board relied on Akosung’s
longest stay, with her relative in Douala, but the relative
made Akosung leave when he learned that he would face
consequences for harboring her. Akosung’s living situations
were temporary and, in at least one instance, so precarious
that she had to engage in a physical struggle in order to
escape. The record does not demonstrate any safe relocation
in a place where the Fon’s writ did not run. See Arrey v. Barr,

, 1161 (9th Cir. 2019). Because substantial
10                   AKOSUNG V. BARR

evidence does not support the Board’s conclusion, we
remand for further consideration.

                              III

    In rejecting Akosung’s claims for asylum and
withholding of removal, the Board also relied on its
determination that she did not belong to a group that
Cameroonian society recognizes as socially distinct and,
accordingly, that she could not show a well-founded fear of
persecution based on a protected ground. Because the record
cannot sustain the Board’s analysis of social distinction, we
grant the petition and remand on that issue as well.

    To establish eligibility for asylum, an applicant must
demonstrate that she is a “refugee,” 8 U.S.C.
§ 1158(b)(1)(B)(i), which the Immigration and Nationality
Act defines as a person who is unable or unwilling to return
to her home country “because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion,” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R.
§ 1208.16(b) (similar standard for withholding of removal).
The Board has previously interpreted the phrase “particular
social group” to refer to a group that is “(1) composed of
members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within
the society in question.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 237 (B.I.A. 2014). We have upheld the Board’s
interpretation as a reasonable resolution of statutory
ambiguity that is entitled to deference under Chevron U.S.A.
Inc. v. NRDC, Inc., 

(1984). See Garay Reyes v.
Lynch, 

, 1136–37 (9th Cir. 2016).

   Although the Board has sometimes referred to the
requirement of social distinction in terms of “social
                     AKOSUNG V. BARR                        11

visibility,” the Board clarified in Matter of M-E-V-G- that
“social visibility does not mean ‘ocular’ visibility.”
26 I. & N. Dec. at 240. “To be socially distinct,” the Board
explained, “a group need not be seen by society; rather, it
must be perceived as a group by society.”

not necessary that people in the society be “able to identify
the group’s members on sight.”

the Board adopted the immigration judge’s
finding that “women resistant to forced marriage proposals”
are not a socially distinct group. The immigration judge
found it “difficult . . . to find how anyone in society would
be able to demonstrate or recognize [Akosung] as an
individual who has declined a marriage proposal from a
fon.” To the extent that that finding rests on a requirement of
ocular visibility, it is inconsistent with Matter of M-E-V-G-.

    But even if we construe the Board’s statement as a
determination that the group is not regarded as distinct in
Cameroonian society, that determination appears to be
inconsistent with Akosung’s testimony. Akosung described
experiencing ostracism while fleeing the Fon; for example,
her relative asked her to leave Douala because he could be
fined for harboring her. She also testified that the Fon had
the power to enforce traditional laws and customs in other
towns and villages, even without a physical presence in those
places. That power was demonstrated in the case of another
woman Akosung described who was successfully hunted
down after refusing to marry the Fon. Akosung’s testimony
suggests that the status of a woman resisting a forced
marriage was recognized as distinct “within the society in
question,” and the Board should have taken it into account.
Matter of M-E-V-G-, 26 I. & N. Dec. at 237; see Flores Rios
v. Lynch, 

, 1127 (9th Cir. 2015).
12                   AKOSUNG V. BARR

    The government does not defend the Board’s social-
distinction analysis on the merits but argues instead that
Akosung has waived any challenge to the Board’s
determination by redefining her proposed social group in her
briefs to this court. We disagree. Both the immigration judge
and the Board evaluated the proposed particular social group
of “women resistant to forced marriage proposals.” Before
the Board, Akosung proposed what the Board characterized
as “variations on” that group, and in this court, Akosung
characterized the group as “single, childless women in
Cameroon”—that is, the class of people who, by custom, are
eligible to be selected as wives of the Fon. Akosung argued
that “[n]one of these proposed social groups are any different
than others because . . . the only people in Cameroon who
must resist forced marriage are single, childless women.”
Although Akosung’s brief could have been clearer on the
point, we conclude that her challenge to the Board’s social-
distinction analysis was sufficiently presented to permit our
review. See Guo v. Ashcroft, 

, 1199 (9th Cir.
2004). We leave it up to the Board on remand to decide
whether it should exercise its discretion to consider the
cognizability of Akosung’s social group as she now
articulates it, or else address the proposed social group it
considered previously.

                              IV

    Under the CAT regulations, the applicant bears the
burden of establishing that “it is more likely than not that he
or she would be tortured if removed.” 8 C.F.R.
§ 1208.16(c)(2). In rendering its decision, the Board must
consider “all evidence relevant to the possibility of future
torture.” 8 C.F.R. § 1208.16(c)(3); see Parada v. Sessions,

, 914–15 (9th Cir. 2018). In addition to the
potential for relocation, the Board offered several additional
                     AKOSUNG V. BARR                        13

rationales for denying CAT relief. They are flawed in three
respects.

    First, the Board stated that Akosung did not show that
any torture would be “by, or ‘at the instigation of or with the
consent or acquiescence of a public official.’” (quoting
8 C.F.R. § 1208.18(a)(1)); see

reflected
in the regulation that the Board quoted, torture can occur
even if a government official does not commit the act
directly. The regulation requires only official acquiescence,
which exists when government officials “were aware of the
torture but ‘remained willfully blind to it, or simply stood by
because of their inability or unwillingness to oppose it.’”
Bromfield v. Mukasey, 

, 1079 (9th Cir. 2008)
(quoting Ornelas-Chavez v. Gonzalez, 

, 1060
(9th Cir. 2006)); see 8 C.F.R. § 1208.18(a)(7).

    To the extent the Board analyzed the issue at all, its
recitation of the regulatory text provides no reasoned
consideration of government acquiescence. Because the
Board’s decision “relies in part on the immigration judge’s
reasoning,” we may review both decisions, but the
immigration judge’s decision is no sounder than the Board’s.
Jagtar Singh v. Holder, 

, 830 (9th Cir. 2014)
(quoting Flores-Lopez v. Holder, 

, 861 (9th Cir.
2012)). The immigration judge reasoned that Akosung “has
not testified that she is being sought to be harmed by any
type of member of the actual Cameroonian government.”
Instead, she “simply fears some private actors such as her
tribal elders and the fon . . . . These are not official
government members.” Even assuming that the Fon is not
himself a government official, the immigration judge’s
analysis says nothing about the prospect of torture with the
acquiescence of a government official.
14                   AKOSUNG V. BARR

    Although neither the immigration judge nor the Board
discussed it, the record shows that local police were aware
of the Fon’s edicts and refused to interfere with traditional
customs, including forced marriage. Akosung’s credible
testimony establishes that the village council’s decisions
have the force of law and that local police believe they
“cannot be challenged.” The Board erred by failing to “give
reasoned consideration to that evidence.” Cole v. Holder,

, 772 (9th Cir. 2008).

    Second, the Board emphasized that Akosung “has not
experienced past torture.” Past torture is a relevant
consideration in deciding whether an applicant faces a
likelihood of future torture. 8 C.F.R. § 1208.16(c)(3)(i); see
Kamalthas v. INS, 

, 1284 (9th Cir. 2001). We
have explained that “past torture is ordinarily the principal
factor on which we rely when an applicant who has
previously been tortured seeks relief under the Convention.”
Nuru v. Gonzales, 

, 1218 (9th Cir. 2005). But
we have never held that CAT relief requires a finding of past
torture. The plain text of the regulation does not impose such
a requirement, but instead identifies evidence of past torture
as one item in a non-exclusive list of relevant factors.

    We do not question that there are cases in which the lack
of past torture makes it less reasonable to believe that future
torture is likely. But here, Akosung’s credible testimony
established that the only reason she evaded physical attacks,
or any other harm from a forced marriage, is that she hid and
resisted capture by the Fon’s forces. When an applicant flees
and goes into hiding to avoid torture, it can hardly be said
that the absence of past harm negates the likelihood of future
torture. The Board ignored that highly probative and
unrefuted evidence in assessing Akosung’s CAT claim. See

.
                      AKOSUNG V. BARR                         15

     Third, the Board limited its analysis to the threat of
violence Akosung might face for resisting marriage to the
Fon, while overlooking the threat of violence she would face
if forced to marry him. We have previously held that “[r]ape
can constitute torture . . . [because it] is a form of aggression
constituting an egregious violation of humanity.” Avendano-
Hernandez v. Lynch, 

, 1079 (9th Cir. 2015)
(ellipsis in original) (quoting Zubeda v. Ashcroft, 

, 472 (3d Cir. 2003)); see Xochihua-Jaimes v. Barr,

, 1183 (9th Cir. 2020) (relying on Avendano-
Hernandez to conclude that “[r]ape and sexual assault may
constitute torture”). Here, the Board did not consider the
likelihood of rape at all, even though it is an obvious
concomitant of a forced marriage.

    The government does not argue that marital rape should
be treated differently from other forms of sexual violence,
nor could it plausibly do so. Instead, it contends that
Akosung did not exhaust the argument before the agency.
But in her testimony, Akosung described herself as having
been “traumatized” by the prospect of a forced marriage to
the Fon, and she left little doubt about why. She recounted
in detail the example of another woman who had refused
marriage to the Fon, left the village, and married someone
else. Akosung repeatedly described how that woman was
tracked down and forced to return to the palace, abandon her
husband, and bear three of the Fon’s children. Akosung
further testified about girls who were forced into marriage
once they were of childbearing age. The implication of her
testimony was clear.

   Beyond her testimony, Akosung’s brief to the Board
emphasized “the life of slavery led by those females taken as
wives of the Fon.” Akosung’s brief also underscored “the
grave threat to her life and freedom of being a slave-wife if
16                   AKOSUNG V. BARR

she ever entered the Fon’s palace.” That was sufficient to put
the Board on notice of the issue. See Figueroa v. Mukasey,

, 492 (9th Cir. 2008). On remand, the Board
should consider the threat of rape in assessing whether
Akosung has established that she would be more likely than
not to be tortured if returned to Cameroon.

     PETITION GRANTED and REMANDED.