18-1801

Akre v. Garland

BIA

Mulligan, IJ

A209 386 096

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 18th day of May, two thousand twenty-one.

PRESENT:

ROBERT A. KATZMANN,

RICHARD C. WESLEY,

SUSAN L. CARNEY,

Circuit Judges.

_____________________________________

AWOH FRANCK DOMINIQUE DIDIER

AKRE, AKA AWOH FRANCK D. AKRE

Petitioner,

v. 18-1801

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Rachel G. Skaistis, Dean Nickles, 

 Cravath, Swaine & Moore LLP, New 

York, NY; Jennifer Williams, The 

Legal Aid Society, New York, NY.

 

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

General; Jonathan Robbins, Senior 

Litigation Counsel; Patricia E. 
2

Bruckner, Trial Attorney, Office 

of Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is GRANTED.

Petitioner Awoh Franck Dominique Didier Akre, a native 

and citizen of Côte d’Ivoire, seeks review of a June 5, 2018, 

decision of the BIA affirming a January 25, 2018, decision of 

an Immigration Judge (“IJ”) denying asylum, withholding of 

removal, and relief under the Convention Against Torture 

(“CAT”). See In re Awoh Franck Dominique Didier Akre, No. 

A209 386 096 (B.I.A. June 5, 2018), aff’g No. A209 386 096 

(Immig. Ct. N.Y. City Jan. 25, 2018). We assume the parties’ 

familiarity with the underlying facts and procedural history.

We have reviewed the IJ’s decision as supplemented by 

the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 

Cir. 2005). The applicable standards of review are well 

established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 

Holder, 562 F.3d 510, 513 (2d Cir. 2009). We assume, as the 

BIA did, that the government of Côte d’Ivoire was unable or 
3

unwilling to protect Akre from the persecution he suffered

and fears. See Yan Chen, 417 F.3d at 271–72. 

The agency failed to adequately consider the record in 

determining that Akre, who was presumed to have a well-founded 

fear of persecution on account of past persecution stemming 

from his conversion to Islam, could safely relocate within 

Côte d’Ivoire to avoid future harm. An applicant who has 

suffered past persecution is presumed to have a well-founded 

fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). 

The Government may rebut this presumption by establishing 

that the applicant can reasonably relocate, but “it shall be 

presumed that internal relocation would not be reasonable, 

unless the [Government] establishes by a preponderance of the 

evidence that, under all the circumstances, it would be 

reasonable for the applicant to relocate.” 8 C.F.R. 

§ 1208.13(b)(3)(ii) (2013). In determining whether internal 

relocation would be reasonable, the IJ considers “whether the 

applicant would face other serious harm in the place of 

suggested relocation; any ongoing civil strife within the 

country; administrative, economic, or judicial 

infrastructure; geographical limitations; and social and 

cultural constraints, such as age, gender, health, and social 
4

and familial ties.” Id. § 1208.13(b)(3) (2013). 

The agency found that Akre could reasonably and safely 

relocate to northern Côte d’Ivoire because the northern part 

of the country is predominantly Muslim, the government 

encourages religious tolerance, and Akre could find 

employment as a trained air conditioning technician. But the 

agency erroneously ignored the evidence supporting that 

internal relocation to the northern part of the country might 

be unreasonable in several ways. First, the IJ erred in 

finding irrelevant Akre’s identifiability as a member of his 

tribe because that evidence was relevant to whether his 

persecutor could easily locate him should he relocate to 

northern Côte d’Ivoire where members of his tribe do not 

usually reside. Second, the BIA applied an incorrect 

standard when evaluating the relevance of Akre’s 

identifiability as a member of his tribe and finding it 

“unclear . . . that such distinction would render his 

relocation unreasonable,” Certified Admin. Record 4, because 

his relocation was presumed unreasonable until shown by the 

Government to be reasonable, see 8 C.F.R. 

§ 1208.13(b)(1)(i)(B) (2013). Third, the agency erred in 

finding evidence of political, social, and religious unrest 
5

and generally harsh conditions in the country outdated and 

unrelated to Akre’s case because the evidence indicated that 

similar volatile conditions remain and such conditions were 

relevant to the reasonableness of relocation. See id.

§ 1208.13(b)(3) (2013). Lastly, the agency failed to 

acknowledge the evidence that the criminal activities of 

security forces and other groups restrict freedom of movement 

in much of northern Côte d’Ivoire. 

Because the agency failed to consider relevant evidence 

that Akre could easily be located due to his tribal identity, 

that civil strife is ongoing, and that internal movement is 

restricted, it erred in relying solely on evidence that the 

northern part of Côte d’Ivoire is predominantly Muslim and 

that the government encourages religious tolerance to 

conclude that it would be reasonable for Akre to relocate to 

northern Côte d’Ivoire “under all the circumstances.” Id. § 

1208.13(b)(3)(ii) (2013). Accordingly, we remand for the 

agency to consider all relevant evidence related to the 

reasonableness of internal relocation to northern Côte 

d’Ivoire. See id. § 1208.13(b)(1)(ii), (3)(ii); Yan Chen, 

417 F.3d at 272–73 (providing that remand is required when 

agency overlooks or fails to consider material evidence). 
6

Likewise, the BIA erroneously found that Akre could 

alternatively relocate within southern Côte d’Ivoire because 

that finding is not supported by substantial evidence. Given 

Akre’s persecutor has already located and attacked him in 

southern Côte d’Ivoire, it is unreasonable for him to relocate 

there. Accordingly, we remand for the agency to reconsider 

the reasonableness of internal relocation within southern 

Côte d’Ivoire. See Tambadou v. Gonzales, 446 F.3d 298, 302

(2006) (“We remand for reconsideration . . . where the IJ’s 

or BIA’s determination is based on an inaccurate perception 

of the record . . . .” (internal quotation marks and citation 

omitted)). 

For the foregoing reasons, the petition for review is 

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED to the BIA. All pending motions and applications 

are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk