Afriyie v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STANLEY ONUSU AFRIYIE, AKA 
Stanley Owusu Afriyie,
No. 08-72626
Petitioner,
v.  Agency No.
A097-121-795
ERIC H. HOLDER JR., Attorney
OPINION
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 9, 2010—Seattle, Washington

Filed July 26, 2010

Before: A. Wallace Tashima, Raymond C. Fisher and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

10649
 AFRIYIE v. HOLDER 10653

COUNSEL

James C. Daugherty, Seattle, Washington, for the petitioner.

Jonathan Robbins (argued), Achiezer Guggenheim, Tony
West, and Mary Jane Candaux, Washington, DC, for the
respondent.

OPINION

BERZON, Circuit Judge:

Under our immigration statute an applicant for asylum or
withholding of removal can rely on persecution by private
parties as a ground for relief from removal if he can show that
the government of his country of origin is unable or unwilling
to control that persecution. This case concerns the application
of the unable or unwilling standard.

Stanley Afriyie, a citizen of Ghana, was persecuted by
Muslims because he proselytized as a Baptist preacher in pre-
dominantly Muslim areas of Ghana. He fled to the United
States and applied for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). The
Board of Immigration Appeals (BIA) denied his application
for asylum and withholding of removal, concluding that Afri-
yie failed to show that the Ghanaian government was unable
or unwilling to protect him and, in the alternative, that Afriyie
could safely relocate in his home country. We conclude the
BIA erred by denying Afriyie asylum and withholding of
10654 AFRIYIE v. HOLDER
removal, taking this opportunity to clarify the unable or
unwilling standard applicable to nongovernmental persecu-
tion. In light of our analysis of the “unable or unwilling” asy-
lum and withholding issue, we also remand Afriyie’s CAT
claim for further consideration of whether Ghanaian police
acquiesced in Afriyie’s torture.

I.

Stanley Afriyie is a forty-one-year-old citizen of Ghana,
born in that country’s capital, Accra. Afriyie became a Baptist
in 1999, and the following year began to preach the gospel,
traveling from town to town. Afriyie later founded and led a
five-member group called “Lack of Knowledge My People
Perish.” The group proselytized in Ghanaian villages on
weekends in heavily Muslim areas, attempting to convert peo-
ple to the Baptist faith.

Afriyie testified that his religious activities aroused anger
in the Muslim population and that, as a result, he was targeted
for persecution on account of his religion. His first difficul-
ties, he stated, came in April 2002, when he and the group
went to a predominantly Muslim village. Afriyie preached,
using a microphone, in the street. The Muslim villagers
became hostile, complaining about Afriyie’s attempt to con-
vert them to the Baptist religion, and, as time went on, some
turned violent: They chased and attacked Afriyie and his fel-
low group members with sticks. Afriyie was beaten uncon-
scious and went to the hospital for treatment, where he stayed
overnight. The following day, Afriyie became fearful that his
attackers would find him if he remained in the area, so he left
the hospital even though he had been told that he would need
to remain hospitalized for two weeks.

Afriyie reported this attack to the police, who were located
near, but not in, the town where Afriyie had been beaten. The
police officers asked Afriyie to complete a written report of
the crime. Afriyie did so, describing the crime but noting only
 AFRIYIE v. HOLDER 10655
the village in which the assault occurred, not the precise loca-
tion. He did, however, give the police further details orally
about the location of the crime. Afriyie testified at his hearing
that although he later requested information about whether the
police had investigated the assault, the police refused to dis-
close whether they had made any inquiries into the crime and,
if so, what kind.

After the assault, Afriyie was afraid to preach in Muslim
villages and so stopped proselytizing for a while. But, Afriyie
testified, in time the Holy Spirit came to him when he was
sleeping and urged him to begin proselytizing again. So, in
March 2003, Afriyie and his group ventured into a different
Muslim village, Aboabo. When Afriyie began preaching, a
group of Muslim villagers opposed to attempts at conversion
approached and warned him to stop his efforts. That night,
Afriyie and his group stayed with a woman who offered them
a room, but the home was invaded during the night and the
group fled.

At some point—Afriyie did not say precisely when—
Afriyie and his group asked the police for protection during
their forthcoming preaching sessions, but the police had only
one gun for the entire station. In any event, Afriyie testified,
“[y]ou have to pay the police” to receive protection. Ordinar-
ily, the police tell victims to get the culprits on their own and
bring them to the police station.1

The same month as the Aboabo assault, three of Afriyie’s
four group members were murdered in separate incidents.
One of the group members was stabbed to death one week
1
The transcript records Afriyie’s testimony in this regard indistinctly:
“Where I come from, when[ ] it[ ] is a case concerning you, and then you
go [to] the police station to report it, they’ll tell you to bring the (indis-
cernible) and the taxi to the police station. It’s not like here that you see
police cars around everywhere.” The Immigration Judge’s opinion makes
clear that the “indiscernible” word was “culprit.”
10656 AFRIYIE v. HOLDER
after the Aboabo incident. The victim’s household reported
the murder to the police, who stated that they had no evidence
to solve the crime.

After the stabbing, the remaining members of Lack of
Knowledge My People Perish met to discuss whether to con-
tinue proselytizing. Soon thereafter, a second group member,
Isaac, was the victim of a planned attack: he encountered a
tree blocking the road while driving and was beaten to death
by a group of six to twelve people with sticks when he left his
car. Afriyie did not attend Isaac’s funeral because he believed
his own life was in danger. A third group member was mur-
dered at night that same month. Afriyie believed that all three
group members were killed by Muslim villagers.

After the three murders, Afriyie went into hiding. Soon
thereafter, visitors came to Afriyie’s village and set afire his
sister’s house, where he had previously been staying. Afri-
yie’s sister and nephew were killed in the blaze. After the fire,
Afriyie’s mother called him and told him that “whatever [he]
was doing [he] should put a[n] end to it because it burned [his
sister’s] house.” The fire and resulting death of Afriyie’s sis-
ter were reported to the police, but there apparently was no
resolution to the case.2 Baptist church elders then told Afriyie
“that from the look of things [he] should leave town.” Afriyie
then fled Ghana, eventually arriving in the United States,
where he applied for asylum, withholding of removal, and
relief under the Convention Against Torture.3

Afriyie proceeded pro se in his immigration hearing, where
2
The record is indecipherable as to whether the police inquired into the
murder and arson. Afriyie was asked about this issue, but the response
recorded is unclear: “They made inquires in that nothing (indiscernible) I
haven’t heard from them to.”
3
Afriyie filed his application before May 11, 2005, the effective date of
the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005), so the REAL
ID Act does not apply to this case.
 AFRIYIE v. HOLDER 10657
he testified to the above facts. During the hearing, the govern-
ment asked numerous questions about whether Afriyie could
safely return to Ghana. Afriyie was sure he could not: “[I]f
[he] were to go back the Muslims . . . [would] find out that
[he was] there, [and] they[ ] [would] attack [him] again. . . .
If [he] were to go to Ghana, once [he] start[s] preaching, then
they’ll know [him].” The government specifically asked Afri-
yie if he could do his missionary work in Accra; Afriyie
responded that he had preached in a suburb of Accra but
would be targeted anywhere in the country because of his rep-
utation.

The government introduced two official reports to support
its contention that Afriyie could relocate in Ghana: One, a
Department of State report, indicated that Christians live
throughout Ghana, making up 69 percent of the population,
and that the majority of Muslims are concentrated in the
northern part of the country and in urban centers, including
Accra. The report indicated that Ghanaian authorities sought
to protect religious freedom and “did not tolerate its abuse,
either by governmental or private actors.” In addition, a guid-
ance document from the British Home Office stated that
police in Ghana were criticized in 2004 for corruption and
negligence, but that there were channels for complaints by the
public against the police. As a result, the guidance document
concluded, there was “no evidence that Christians and con-
verts to Christianity are not able to seek and receive adequate
protection from the state authorities.”

The Immigration Judge (IJ) found Afriyie credible and con-
cluded that he had suffered past religious persecution, relying
on the incident in which Afriyie was beaten unconscious.
Accordingly, the IJ determined, Afriyie was entitled to a pre-
sumption that he would be persecuted if he returns to Ghana.
See 8 C.F.R. § 1208.13(b)(1). The IJ also decided, however,
that “the evidence establishes the Government of Ghana
would attempt to protect [Afriyie] from persecution on
account of his religion,” and that Afriyie would be able to
10658 AFRIYIE v. HOLDER
relocate to another part of Ghana where he would be safe
from persecution.

As to the relocation issue, it is not clear on whom the IJ
placed the burden of proof: The IJ stated, on the one hand,
that “but for [Afriyie’s] testimony, he offered no evidence that
[relocation in Ghana] would not be reasonable,” and noted
that Afriyie “ha[d] not established by competent[,] credible
objective evidence that he could no[t] relocate to be safe in
Ghana.” But the IJ later described his conclusion as “find[ing]
that the Government ha[d] rebutted the presumption that the
respondent could not relocate in Ghana to be safe.”

As to withholding of removal, the IJ found that Afriyie nec-
essarily failed to qualify, as the standard is more stringent
than for asylum. Finally, the IJ denied Afriyie’s CAT claim
on the ground that Afriyie had not established either that
Ghana would not protect him from torture or that it was more
likely than not that he would be tortured if he returned.

Afriyie appealed to the BIA and moved before the Board
to expand the record to include other documents describing
country conditions in Ghana. The BIA determined that con-
sideration of the documents would require additional fact-
finding, and so, citing Matter of Coelho, 20 I. & N. Dec. 464
(BIA 1992), interpreted Afriyie’s motion to expand the record
as a motion to remand to the IJ. Finding that all but two of the
documents were in existence before the hearing and could
have been discovered and the two others were not sufficiently
probative or likely to change the result, the BIA denied Afri-
yie’s motion to expand the record.

Having done so, the BIA affirmed the IJ on all grounds but
set forth its own reasoning in some respects. The BIA
assumed that Afriyie’s assault and the murders of others he
described amounted to religious persecution but concluded
that “the evidence does not establish that the government of
Ghana was unable or unwilling to control the Muslim individ-
 AFRIYIE v. HOLDER 10659
uals that attacked the applicant.” In so deciding, the BIA
relied on the facts that (1) Afriyie “never reported most of
the[ ] incidents to the police, and that when he did report one
attack, the police took his statement and created a written
report”; (2) Afriyie was not able to identify his attackers or
precisely where he was attacked, and so could not explain
how he expected the police to protect him; and (3) Afriyie
was “under the impression” the police would investigate the
assault. Additionally, the BIA noted the country conditions
evidence, citing the British Home Office report for the propo-
sition that “internal security and police forces of Ghana oper-
ate effectively throughout the country, and that these forces
effectively pursue and investigate claims of persecution at the
hands of Muslims against Christians.”

As an alternative to its “unable or unwilling” holding, the
BIA “agree[d] with the Immigration Judge” that Afriyie could
relocate in Ghana, noting that “[t]he documentary evidence of
record establishes that Ghana is predominantly—perhaps even
overwhelmingly—Christian, and that Muslim communities
are limited to the northern areas of Ghana” and “in certain
urban centers.” The BIA went on to rely on the British report
as “flatly conclud[ing] that ‘safe relocation for Christians and
converts to Christianity to a different area of the country to
escape this threat of societal discrimination amounting to per-
secution at the hands of Muslims is . . . feasible.’ ”

After denying Afriyie’s asylum and withholding claims on
these bases, the BIA also denied, without elaboration, Afri-
yie’s CAT claim. This timely petition followed.

II.

“When the BIA conducts its own review of the evidence
and law rather than adopting the IJ’s decision, our review ‘is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.’ ” Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010) (quoting Hosseini v. Gonzales,
10660 AFRIYIE v. HOLDER
471 F.3d 953, 957 (9th Cir. 2006)). We review the BIA’s
findings of fact for substantial evidence. Ghaly v. INS, 58
F.3d 1425, 1431 (9th Cir. 1995). We grant the petition only
if the evidence compels a contrary conclusion from that
adopted by the BIA. Id.

A. “Unable or Unwilling”

Afriyie claimed that he suffered past persecution based on
his religion. It was, therefore, his burden to demonstrate: “(1)
an incident, or incidents, that rise to the level of persecution;
(2) that is on account of one of the statutorily-protected
grounds; and (3) is committed by the government or forces
the government is either unable or unwilling to control.”
Ernesto Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000)
(internal quotation marks and footnotes omitted). The primary
basis for the BIA’s rejection of Afriyie’s asylum claim was its
conclusion that Afriyie failed to meet the last of these three
requirements.

After examining the record, we cannot agree. The BIA
made numerous factual errors in its “unable or unwilling”
analysis, ignoring evidence favorable to Afriyie, misstating
Afriyie’s testimony, and improperly treating as irrelevant
police reports made by individuals other than Afriyie.
Because we conclude that a reasonable fact-finder would be
compelled to conclude that the government was unable, or in
the alternative unwilling, to protect Afriyie, we reverse the
BIA as to this issue.

1.

[1] We begin by noting that reporting persecution to gov-
ernment authorities is not essential to demonstrating that the
government is unable or unwilling to protect him from private
actors. See Rahimzadeh v. Holder, slip op. at p. 10682-83 (9th
Cir. July 26, 2010); In re S-A-, 22 I. & N. Dec. 1328, 1335
(BIA 2000); see also Ornelas-Chavez v. Gonzales, 458 F.3d
 AFRIYIE v. HOLDER 10661
1052, 1058 (9th Cir. 2006) (so holding in the withholding of
removal context). Rather, “the absence of a report to police
. . . leaves a gap in proof about how the government would
respond, which the petitioner may attempt to fill by other
methods.” Rahimzadeh, slip op. at p. 10683. The applicant
may, for example, use generalized country conditions infor-
mation to show that reporting such activity to the police
would have been futile, see Avetova-Elisseva v. INS, 213 F.3d
1192, 1198 (9th Cir. 2000), or that doing so might have
placed the applicant in greater danger, see In re S-A-, 22 I. &
N. Dec. at 1333, 1335. At the same time, when an applicant
attempts to report persecution to the police or request protec-
tion from them, the authorities’ response (or lack thereof) to
such requests may provide powerful evidence with respect to
the government’s willingness or ability to protect the reque-
stor. See Rahimzadeh, slip op. at p. 10681-82; Faruk v. Ash-
croft, 378 F.3d 940, 944 (9th Cir. 2004).

[2] Against this background, it becomes apparent that the
BIA’s first error was focusing exclusively on the police report
Afriyie filed with regard to the attack on him. Even if Afri-
yie’s ability to file a police report suggests that the police
were willing to protect Afriyie, that says little if anything
about whether they were able to do so. Authorities capable of
taking a crime report may still be “powerless to stop” the per-
secution of which an individual complains. Avetova-Elisseva,
213 F.3d at 1198. Such an inability to provide protection may
arise because of a lack of financial and physical resources or
because of the character or pervasiveness of the persecution.
See id.

In this case, the BIA ignored portions of Afriyie’s testi-
mony that specifically indicate the Ghanaian police forces
lacked the resources necessary to protect him. Afriyie’s group
requested police protection while preaching, but the police
had only one gun for the entire station and so could not pro-
vide the protection. Moreover, Afriyie testified that police
expected individuals reporting crimes to track down and bring
10662 AFRIYIE v. HOLDER
in the perpetrators, additional evidence tending to show the
inability of the police to investigate and solve crimes.4

[3] The BIA also erred by giving no weight whatever to
the government’s failure to solve other similar crimes against
individuals associated with Afriyie or to provide protection
when asked. The BIA emphasized that Afriyie himself
reported only the beating he suffered, not the other crimes he
described, namely, the murders of three of his group members
and of his sister. However, Afriyie did testify that at least two
of the other crimes were reported, even if not by him. As
noted above, even general country conditions information,
such as a report, might be relevant in the “unable or unwill-
ing” analysis. Where, as here, an asylum applicant testifies to
specific incidents in which individuals closely connected to
the asylum applicant unsuccessfully sought police protection
or investigation for crimes related to the ones against him,
such testimony is certainly pertinent and must be considered.
Afriyie asserted that the group’s religious proselytizing
caused the murders of his sister, nephew, and group members,
and that this activity was also the basis for the assault against
Afriyie and his fear of persecution. That at least two of these
murders were reported to the police, with no apparent prog-
ress in solving them, is highly relevant evidence to the ques-
tion whether Ghanaian authorities were unable, even if
willing, to protect Afriyie from a similar fate.
4
The BIA emphasized that Afriyie was “under the impression” the
police would investigate the assault against him. However, the context of
Afriyie’s statement in this regard does not indicate that the police actually
investigated the assault. During the hearing before the IJ, the government
asked Afriyie whether he thought “the police in Ghana were that efficient
that they could figure out where [he was] attacked and whom [he was]
attacked [by] when [he] couldn’t describe them.” According to the tran-
script, Afriyie responded, “I was under the impression that the police was
sending this case under investigators to the place and ask that on this day
something happened. Do you know what happened?” Government counsel
then changed course in its questioning.
 AFRIYIE v. HOLDER 10663
[4] Taken together with Afriyie’s testimony that Ghanaian
police do not investigate crimes but instead expect crime vic-
tims to bring the perpetrators of crimes to the police, the evi-
dence with respect to the murders and Afriyie’s attack
suggests that the police were unable to protect Afriyie.5 We
have so held under other circumstances in which there were
several attacks on closely related people, none of which was
solved. See Mashiri v. Ashcroft, 383 F.3d 1112, 1121 (9th Cir.
2004) (holding that the petitioner had shown that governmen-
tal authorities were unable or unwilling to protect her and her
family where the police made no arrests after her husband was
beaten, quickly closed their investigation on an attack on her
apartment, and did not investigate her child’s beating).

2.

The BIA also ignored Afriyie’s testimony that even if the
police could protect him if they so desired, they demand
bribes for their services. Such evidence was corroborated by
the government’s own country conditions information and
supports Afriyie’s contention that the police were unwilling to
5
We note as well that the BIA misstated the evidence with respect to
Afriyie’s police report concerning the assault against him. The BIA
emphasized that Afriyie “conceded that his [police] report simply stated
that the attack occurred in a city some 10 to 12 miles from the police sta-
tion, and did not further specify the location of the attack.” In so doing,
the BIA ignored Afriyie’s testimony that he supplemented his written
police report with an oral statement in which he gave additional and spe-
cific details about the location of the assault. On this same point, the
BIA’s reliance on Nahrvani v. Gonzales, 399 F.3d 1148 (9th Cir. 2005),
is misplaced. In Nahrvani, this court denied an asylum petition where the
“German police took reports documenting [the petitioner’s] various com-
plaints” but the petitioner “did not give the police the names of any sus-
pects.” Id. at 1154. Critically, the petitioner’s “assertion [that the German
police failed to investigate] [wa]s directly contradicted by the testimony
of his wife, who stated that the police investigated the complaints, but
were ultimately unable to solve the crimes.” Id. In this case, not only did
Afriyie provide specific information with which the police could have
investigated, there is no evidence to suggest that the police actually did so.
10664 AFRIYIE v. HOLDER
protect him in their governmental capacity, as well as unable
to do so. See Faruk, 378 F.3d at 944 (holding that police were
unwilling to protect petitioners where the petitioners “re-
quested assistance from the police” and “received none”).

3.

The BIA thus ignored or misstated critical, individualized
evidence showing that the government of Ghana was either
unable or unwilling to protect Afriyie. It instead relied on
general country conditions information to conclude otherwise.

[5] The BIA was entitled to rely on all relevant evidence
in the record, including reports, to determine whether Afriyie
established persecution. See Molina-Estrada v. INS, 293 F.3d
1089, 1096 (9th Cir. 2002). The British Home Office report,
however, upon which the BIA heavily relied, does not support
the conclusion that the Ghanaian government was willing and
able to protect Afriyie. The BIA cited the report for the propo-
sition that Ghanaian police “effectively pursue and investigate
claims of persecution” against Christians. In fact, the report
refers to the “investigat[ion]” and “pursu[it]” of complaints
only with respect to complaints alleging corruption lodged by
the public against the police.

[6] Moreover, the report concluded only that there was “no
evidence that Christians . . . are not able to seek and receive
adequate protection from the state authorities,” not that there
was evidence that they do obtain protection. (Emphasis
added.) Afriyie’s individualized testimony, deemed credible
by the IJ, provides such evidence, which the British report
does not refute.6 And aside from the British report, the BIA
6
This gap would have been apparent to the BIA had it truly conducted
an individualized review of how Afriyie’s claim interacted with the coun-
try conditions information. The BIA must undertake an “individualized
analysis” of a petitioner’s claim when it reviews country conditions infor-
mation introduced to rebut a presumption of future persecution. Osorio v.
 AFRIYIE v. HOLDER 10665
cited only general statements from the Department of State
that Ghana “generally respected [freedom of religion] in prac-
tice” and “sought to protect this right in full and did not toler-
ate its abuse.” While this may be so generally, Afriyie has
presented credible and direct evidence to the contrary in sup-
port of his claim that the police are unable and unwilling to
protect him from private attacks on account of his religious
activity. The BIA was not permitted to disregard that informa-
tion on the basis of general country reports. See Duarte de
Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999).

[7] Given this state of the credited record, any reasonable
factfinder would be compelled to conclude that the Ghanaian
police were unable or unwilling to protect Afriyie. Because
we conclude that the BIA’s determination that Ghanaian
authorities were willing and able to protect Afriyie is not sup-
ported by substantial evidence, we grant Afriyie’s petition as
to this ground. We remand for the BIA to consider whether
Afriyie has otherwise established past persecution, as the BIA
merely assumed, but did not decide, that Afriyie’s assault and
the murders he described amounted to religious persecution.7

B. Relocation

We next consider whether we can uphold the denial of
Afriyie’s asylum claim on the BIA’s alternative rationale that

INS, 99 F.3d 928, 933 (9th Cir. 1996). In that context, a “report on country
conditions, standing alone, is not sufficient to rebut” such a presumption.
Molina-Estrada, 293 F.3d at 1096 (citing cases). Here, although the BIA
used country conditions reports to determine whether Afriyie established
past persecution, it was similarly necessary for the Board to use that infor-
mation in an individualized manner.
7
There is an undertone in the IJ’s remarks suggesting that Afriyie
engaged in purposely provocative proselytizing and that such activity is
not protected by the asylum statute. That reasoning did not serve as the
basis of the IJ’s decision or the BIA’s affirmance. We express no view on
the limits, if any, of religious practice as a basis for asylum protection.
10666 AFRIYIE v. HOLDER
Afriyie could, if returned to Ghana, safely relocate within the
country and that it would be reasonable for him to do so. We
conclude that we cannot.

[8] An asylum applicant who has established that he suf-
fered past persecution is not entitled to asylum if an IJ finds
by a preponderance of the evidence that “[t]he applicant could
avoid future persecution by relocating to another part of the
applicant’s country of nationality . . . and under all the cir-
cumstances, it would be reasonable to expect the applicant to
do so.” 8 C.F.R. § 1208.13(b)(1)(i)(B). There are thus two
steps to the relocation analysis, the first focusing on “whether
an applicant could relocate safely” and the second asking
“whether it would be reasonable to require the applicant to do
so.” Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004);
accord Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir.
2008); Gambashidze v. Ashcroft, 381 F.3d 187, 192 (3d Cir.
2004).

To determine whether relocation would be reasonable,

adjudicators should consider, but are not limited to
considering, whether the applicant would face other
serious harm in the place of suggested relocation;
any ongoing civil strife within the country; adminis-
trative, economic, or judicial infrastructure; geo-
graphical limitations; and social and cultural
constraints, such as age, gender, health, and social
and familial ties. These factors may, or may not, be
relevant, depending on all the circumstances of the
case, and are not necessarily determinative of
whether it would be reasonable for the applicant to
relocate.

8 C.F.R. § 1208.13(b)(3).

Here, the BIA’s relocation analysis presumed that Afriyie
had established past persecution. In that circumstance, the
 AFRIYIE v. HOLDER 10667
government, not the asylum applicant, has the burden of
showing that relocation is both safe and reasonable under all
the circumstances. Id. § 1208.13(b)(1)(ii); see also Boer-
Sedano v. Gonzales, 418 F.3d 1082, 1090 (9th Cir. 2005);
Mashiri, 383 F.3d at 1122-23. The BIA concluded that reloca-
tion would be safe and that it was reasonable to expect Afriyie
to relocate.

[9] Afriyie argues that the BIA improperly placed the bur-
den on him with respect to relocation. We cannot determine
from the record whether that is true or whether the BIA con-
sidered the factors set forth in 8 C.F.R. § 1208.13(b)(3). We
will therefore remand to the BIA to apply the proper standards
in both regards. See Silaya v. Mukasey, 524 F.3d 1066, 1073
(9th Cir. 2008); see also Ghaly, 58 F.3d at 1430 (noting that
the “Board [must] provide a comprehensible reason for its
decision sufficient for us to conduct our review and to be
assured that the petitioner’s case received individualized
attention”).

1.

The BIA did not state who had the burden of proof with
respect to relocation, but it expressed general agreement with
the IJ on this issue. Yet, the IJ’s opinion offers, at best, con-
tradiction in this regard: The IJ initially stated that Afriyie
“offered no evidence that [relocation in Ghana] would not be
reasonable,” and that Afriyie “ha[d] not established by com-
petent[,] credible objective evidence that he could no[t] relo-
cate to be safe in Ghana.” These statements suggest that the
IJ erroneously presumed that relocation was reasonable and
improperly assigned the burden of proof to Afriyie to show
otherwise. Toward the end of the IJ’s opinion, though, he
stated “that the Government . . . rebutted the presumption that
the respondent could not relocate in Ghana to be safe,” a
statement consistent with placing the burden on the govern-
ment. Because of the IJ’s lack of clarity, and the BIA’s failure
to address the confusion, we remand to the BIA to ensure that
10668 AFRIYIE v. HOLDER
it evaluates the relocation issue in accord with the proper bur-
den of proof. See Silaya, 524 F.3d at 1073.

2.

Even if we were to conclude that the BIA correctly
assigned the burden of proof, we would grant Afriyie’s peti-
tion and remand because we cannot determine whether the
BIA considered the requisite regulatory factors pertinent to
the reasonableness analysis.

[10] “[I]n making [the reasonableness] determination,” the
IJ and BIA were bound to “take into account the numerous
factors for determining reasonableness outlined in 8 C.F.R.
§ 1208.13(b)(3).” Knezevic v. Ashcroft, 367 F.3d 1206, 1215
(9th Cir. 2004). Section 1208.13(b)(3) “requires the [adjudi-
cator] to consider [a list of] nonexhaustive factors, to decide
whether any of them ma[k]e relocation unreasonable.” Boer-
Sedano, 418 F.3d at 1090 (emphasis added); accord Arboleda
v. U.S. Att’y Gen., 434 F.3d 1220, 1226 (11th Cir. 2006)
(holding that the BIA committed reversible error when it “did
not mention any of the other factors it should have considered
in making its [reasonableness] determination”). Neither the IJ
nor the BIA discussed any of these factors before concluding
that relocation was reasonable, despite the presumption of
unreasonableness afforded Afriyie, nor did they cite to the
regulatory subsection in which these factors are set forth.

[11] Because we cannot ascertain whether the BIA applied
the appropriate legal standard, we must remand for clarifica-
tion. We emphasize that on remand the BIA must place the
burden on the government to show that relocation would be
reasonable. See Melkonian v. Ashcroft, 320 F.3d 1061, 1070
(9th Cir. 2003). The BIA may look to any evidence intro-
duced by Afriyie that bears on reasonableness. See Boer-
Sedano, 418 F.3d at 1087, 1090-91; Knezevic, 367 F.3d at
1214-15. However, as with changed country conditions, “the
presence of evidence favorable to [Afriyie] is not what is
 AFRIYIE v. HOLDER 10669
determinative here; rather, the basis for [a] decision [on his
asylum claim] is the absence of evidence refuting the regula-
tory presumption.” Ernesto Navas, 217 F.3d at 662-63; see
also Mashiri, 383 F.3d at 1123 & n.7 (considering evidence
offered by petitioner who established past persecution but not-
ing that “it was not her burden” to do so). Nothing in our case
law required Afriyie to introduce such evidence, given the
presumption of past persecution.8 If the government’s previ-
ously introduced evidence fails to rebut the presumption that
relocation is unreasonable, the presumption must stand.

[12] The BIA failed to discuss the reasonableness factors
set forth in 8 C.F.R. § 1208.13(b)(3) or discuss how the gov-
ernment met its burden of showing that relocation was reason-
able. We therefore grant the petition and remand as to this
point as well. See Oryakhil, 528 F.3d at 1000 (remanding for
further proceedings where the BIA concluded that the IJ
appropriately considered the reasonableness factors but “the
record [did] not reflect that conclusion”).9
8
We note, however, that in most cases, applicants would be well-
advised to offer preemptively such evidence if it is reasonably available:
If an applicant does not assert past persecution or an IJ does not find that
an applicant suffered past persecution, an applicant fearing persecution by
private parties will have the burden of showing a well-founded fear of
future persecution and that relocation would be unreasonable. 8 C.F.R.
§ 1208.13(b)(3)(i); see also Melkonian, 320 F.3d at 1070. Moreover, even
an applicant like Afriyie who establishes or is presumed to have suffered
past persecution should introduce evidence bearing on reasonableness with
the expectation that the government will attempt to rebut the presumption
that relocation is unreasonable.
9
In the alternative, Afriyie asserted an asylum claim based on a likeli-
hood of future persecution, without regard to past persecution. Afriyie
would not be eligible for relief under this theory. The BIA rejected this
portion of Afriyie’s claim, determining that he would be able to relocate
safely. Without demonstrating past persecution, Afriyie, not the govern-
ment, had the burden of showing that relocation would not be safe or rea-
sonable where the alleged persecutors were private parties. See 8 C.F.R.
§§ 1208.13(a); (b)(3)(i). Given the sparsity of the evidence introduced by
Afriyie on this point, we agree with the BIA that he did not meet his bur-
den and so deny Afriyie’s petition on this alternative ground.
10670 AFRIYIE v. HOLDER
III.

[13] We also grant Afriyie’s petition with respect to with-
holding of removal, and remand. As with asylum, to show
past persecution, an applicant for withholding of removal
must show that government forces have either directly perse-
cuted him or were unable or unwilling to control private per-
secutors. Ornelas-Chavez, 458 F.3d at 1056. Moreover, also
as with asylum, for the purpose of withholding a finding of
past persecution triggers a presumption of future persecution.
8 C.F.R. § 1208.16(b)(1)(i). The government can rebut such
a presumption by showing that internal relocation is both safe
and reasonable under all the circumstances. Id.
§ 1208.16(b)(1)(i)(B); see also id. § 1208.16(b)(3) (outlining
the same reasonableness considerations as exist in the asylum
context).

[14] As we have indicated, any trier of fact would be com-
pelled to conclude that the government of Ghana was unwill-
ing or unable to protect Afriyie, and we cannot discern
whether the BIA applied the appropriate burden of proof and
considered the correct factors in its relocation analysis.
Because the BIA used the same rationale to reject Afriyie’s
withholding and asylum claims premised on past persecution,
we grant the petition as to the withholding claim for the rea-
sons stated in Parts II.A and II.B. However, as with Afriyie’s
asylum claim, for which the BIA merely assumed past perse-
cution, the BIA on remand may consider whether Afriyie has
otherwise met his burden of proof to demonstrate past perse-
cution for the purpose of withholding of removal.

IV.

[15] We also grant Afriyie’s petition with respect to his
CAT claim, but to a more limited degree. The BIA was silent
as to its reason for denying the CAT claim, so we look to the
IJ’s opinion “as a guide to what lay behind the BIA’s conclu-
sion.” Avetova-Elisseva, 213 F.3d at 1197. The IJ denied the
 AFRIYIE v. HOLDER 10671
claim based on his conclusion that “there [was] no evidence
the Government of Ghana would turn a blind eye,” even if
Afriyie “were to establish that he might be tortured by Mus-
lims on account of his prophesy.” Because of the errors we
identified in the IJ’s and BIA’s “unable or unwilling” analysis
for purposes of asylum and withholding of removal, and given
the substantial overlap of that evidence in the CAT context,
we remand to the BIA for further consideration of CAT relief.

To be eligible for CAT relief, a petitioner must show that
torture would be “inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other per-
son acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
“Acquiescence of a public official requires that the public
official, prior to the activity constituting torture, have aware-
ness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.” 8 C.F.R.
§ 208.18(a)(7); see also Azanor v. Ashcroft, 364 F.3d 1013,
1019 (9th Cir. 2004).

Contrary to the IJ’s conclusion that there was no evidence
in this regard, the record certainly contains evidence indicat-
ing that the government of Ghana was aware of the danger
Afriyie was facing, yet unwilling to protect him. We have sur-
veyed that evidence above with regard to the asylum claim
and so need not do so again. The IJ’s conclusion that Afriyie
failed to show acquiescence, therefore, must be reconsidered
in light of that evidence. We remand so that the BIA can do
so, and can also determine whether, if the government acqui-
esced in torture, Afriyie has otherwise shown that he “ ‘more
likely than not’ ” will be tortured if he returns home. Wakkary
v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009) (quoting
8 C.F.R. § 208.16(c)(2)).

V.

[16] Finally, we deny in part and grant in part Afriyie’s
petition with respect to his motion to expand the record,
10672 AFRIYIE v. HOLDER
which the BIA construed as a motion to reopen. The BIA did
not abuse its discretion, see Perez v. Mukasey, 516 F.3d 770,
773 (9th Cir. 2008), in denying the motion to reopen to con-
sider evidence available to Afriyie at the time of his immigra-
tion hearing. It was also within its discretion to deny the
motion with respect to the new article entitled “Ghana, Africa:
Islam Envelopes a Once-Christian Nation” and discussing
persecution of Christians by Muslims. This article was not
sufficiently probative such that it might have changed the out-
come.

[17] We grant Afriyie’s petition, however, and remand
with respect to the motion to reopen to introduce the March
6, 2007 Department of State, Bureau of Democracy, Human
Rights and Labor country report on Ghana. The report
describes police corruption, use of bribes, and spotty investi-
gation of complaints against the police. Such evidence
appears relevant to government acquiescence for the purpose
of Afriyie’s CAT claim and the BIA’s consideration of
whether relocation would be safe and reasonable. Now that
we have clarified the appropriate legal standards applicable to
the relocation analysis and the evidence that must be consid-
ered for CAT relief, this article might be sufficiently proba-
tive to change the outcome of Afriyie’s claims. We, therefore,
grant Afriyie’s petition in this narrow respect to give the BIA
the opportunity to reconsider whether to admit that one arti-
cle.

GRANTED in part; DENIED in part; and
REMANDED. Costs are awarded to the Petitioner.