NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA TOMAS JUAN, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 18-70805 

Agency No. A088-362-214 

MEMORANDUM*

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.

FILED

JUL 29 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-70805 

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, 367 F.3d 1067, 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, 
3 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 particular 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 

1This 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, 506 F.3d 933, 938 (9th 

Cir. 2007) (applying the presumption after assuming the petitioner suffered 

past persecution). 
4 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, 537 U.S. 12, 16–17 (2002) (per curiam). 

2. Because of the potential overlap of evidence between Ms. TomasJuan’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, 613 F.3d 924, 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, 658 F.3d 1122, 1133 (9th Cir. 2011).

PETITION FOR REVIEW GRANTED; REMANDED.