          United States Court of Appeals
                    For the First Circuit


No. 18-1992

                   JENNIFER AMPOFOWAH TWUM,

                          Petitioner,

                              v.

                        WILLIAM P. BARR,
                UNITED STATES ATTORNEY GENERAL,

                          Respondent.


              PETITION FOR REVIEW OF AN ORDER OF
               THE BOARD OF IMMIGRATION APPEALS


                            Before

                Torruella, Stahl, and Thompson,
                        Circuit Judges.


     Evaristus Nkongchu and African Legal Concierge, PLLC, on
brief for petitioner.
     Elizabeth R. Chapman, Trial Attorney, Joseph H. Hunt,
Assistant Attorney General, and Russell J.E. Verby, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, U.S. Department of Justice, on brief for respondent.



                         July 9, 2019
             STAHL, Circuit Judge.            Petitioner Jennifer Ampofowah

Twum, a native and citizen of Ghana, asks us to review an order

from the Board of Immigration Appeals ("BIA") denying her motion

to reopen removal proceedings.          Twum petitioned the BIA to reopen

so that she could apply for cancellation of removal under the

"special     rule"   for    battered     spouses     and   children,     asylum,

withholding    of    removal,   and     protection    under   the   Convention

Against Torture ("CAT").        She now alleges that the BIA erred in

denying the motion on each of those grounds. After careful review,

we conclude that we are without jurisdiction to review the BIA's

denial of "special rule" cancellation.            With respect to the latter

three claims, however, we find it appropriate to grant the petition

and remand to the BIA for further proceedings consistent with this

opinion.

                                        I.

             Twum entered the United States on a J-2 visa as a

nonimmigrant spouse of an exchange visitor on or about August 10,

2001.   The "exchange visitor" in question was her then-husband,

Clement Asumadu-Baffi, whose arrival proceeded Twum's.                 According

to Twum, she was forced to marry Asumadu-Baffi in Ghana when she

was fifteen, and he subjected her to physical, mental, and sexual

abuse both in Ghana and after their reunion in the United States.

At some point in 2001 or 2002, Twum fled from the marital home in

Cleveland,    Ohio   to    Worcester,    Massachusetts.       She   filed    for


                                      - 2 -
divorce, which was finalized in February 2002.          Twum avers that

Asumadu-Baffi continued to threaten her after (and because of)

their divorce, stating that he would retake her as his wife or

kill her if she ever returned to Ghana.

          After    moving   to    Worcester,   Twum   began   a   romantic

relationship with another Ghanaian, with whom she had two daughters

in 2004 and 2007, respectively.1        She also met and, in June 2007,

married Robert Tolson, a United States citizen.

          Twum's    divorce      from   Asumadu-Baffi   terminated    her

nonimmigrant status and, on September 22, 2006, the Department of

Homeland Security ("DHS") filed a Notice to Appear (the "Notice")

charging Twum with removability for remaining in the United States

beyond the term of her visa.       Through counsel, Twum admitted all

of the factual allegations in the Notice and conceded removability

at a hearing held on January 9, 2007.        Proceedings were continued

from that date until June 12, 2007, at which point Twum appeared

with a second counsel.      One week later, on June 19, 2007, Twum

submitted supplemental pleadings and requested relief in several

forms, to wit: withholding of removal, asylum, adjustment of

status, protection under the CAT, cancellation of removal, and

voluntary departure.


     1 Twum also has two daughters, both born in Ghana, from her
marriage to Asumadu-Baffi. Those daughters moved from Ghana to
the United Kingdom, and it does not appear that they ever resided
with Twum in the United States.


                                   - 3 -
           After her second marriage, Twum sought and received a

continuance of the immigration proceedings to await decision on

Tolson's then-pending I-130 Petition for Alien Relative to adjust

her immigration status based on marriage.             In response to that

petition, DHS requested documentation evincing Twum's divorce.2

Neither the couple nor Twum's then-attorney, Ainsworth Jones,

responded to DHS's request and, as a result, DHS denied the

petition on November 5, 2008. Tolson and Twum refiled the petition

shortly thereafter and again sought a continuance; however, the

immigration judge ("IJ") denied the motion on February 3, 2009.

In the same ruling, the IJ determined that Twum had abandoned her

claims   for   asylum,   withholding,    and    CAT-based   relief     as   of

October 16, 2007, had withdrawn her claim for voluntary departure,

and could not pursue cancellation of removal based on insufficient

time of residency in the United States.               As a result, the IJ

ordered Twum removed.

           Despite that order, DHS subsequently approved Tolson's

second I-130   petition,   and   Twum   moved    to    reopen   the   removal

proceedings to pursue adjustment of her status.             Twum based her

motion to reopen both on DHS's approval of the I-130 as well as on



     2 It is unclear from the record whether DHS sought evidence
of Twum's divorce from Asumadu-Baffi or from the father of her
American daughters, who Twum had listed on certain immigration
paperwork as her spouse but evidently never married.



                                 - 4 -
claimed ineffective assistance by Jones, her prior attorney. The

IJ granted the motion to reopen on April 1, 2010.3

            In response to Twum's ineffective assistance of counsel

charge against him, Jones provided DHS with evidence4 that undercut

Tolson's second I-130 petition.    After review of that submission

and further information provided by the couple, DHS concluded that

Twum and Tolson failed to demonstrate by clear and convincing

evidence that they entered into their marriage in good faith,

rather than for an immigration benefit.   DHS revoked its previous

approval of Twum's I-130 on March 3, 2011, again placing her in

jeopardy of deportation due to the loss of the marriage benefit.

Following that revocation, on March 30, 2011, the IJ denied Twum's

application for adjustment of status and motion to further continue

the proceedings, and again ordered her removal to Ghana.      Twum

appealed to the BIA, which affirmed the IJ's removal order on March

29, 2012.

            The removal order notwithstanding, Twum did not depart

the country.   At the same time, Twum states that her marriage with

Tolson was failing and, in 2015, she filed for divorce.      In an



     3 The IJ denied without prejudice Twum's initial motion to
reopen on June 25, 2009, roughly one month before DHS approved
Tolson's I-130 petition.
     4 Neither the precise nature of the evidence nor Jones's
motivation for providing such evidence to DHS are evident from
this record.


                                - 5 -
affidavit submitted with her present motion to reopen, Twum states

that Tolson began leaving home without explanation and using drugs

during those absences.          During one such absence, she alleges that

Tolson was arrested for robbery, after which point he became

physically    abusive     and     threatened     to   kill    her   on    multiple

occasions.

             On   March   26,    2018,5   Twum   filed   a   motion      to   reopen

proceedings and stay removal.             The impetus for her motion was

three-fold, as she sought to apply for cancellation of removal

under the special rule for battered spouses of United States

citizens under 8 U.S.C. § 1229b(b)(2), asylum and withholding of

removal under 8 U.S.C. §§ 1158, 1241(b)(3), and protection under

the CAT under 8 C.F.R. §§ 1208.16-1208.18.                   In support of her

application, Twum filed a statement asserting that removal to Ghana

would expose both Twum and her two U.S. citizen daughters to

"exceptional and extremely unusual hardship."                In particular, she

pointed to, inter alia, the need to remove her young daughters

(then fourteen and eleven years old) from school and into a foreign

culture and the purported risk that they will be subject to female

genital mutilation ("FGM") and/or face unusual security risks due




     5 Twum previously filed the same motion on March 15, 2018,
but that filing was rejected for failure to pay or seek waiver of
the required filing fee.



                                      - 6 -
to their American       citizenship.6     She also filed an affidavit

attesting to her fear that she would face severe physical violence

from Asumadu-Baffi if she were to return to Ghana.

              The BIA denied the motion to reopen on September 13,

2018.       After noting that the motion was untimely, the BIA found

that Twum failed to demonstrate her eligibility for an exception

to the applicable time limitations.           In particular, the BIA

concluded that she failed to demonstrate the necessary predicates

for either a timeliness waiver or relief under the special rule

for battered spouses and, separately, that she did not adequately

demonstrate "changed country conditions" that could provide a

basis for making an otherwise-belated asylum claim.      Finally, the

Board declined to exercise its discretionary authority to order

sua sponte reopening under 8 C.F.R. § 1003.2(a).

              This timely appeal followed.

                                   II.

              On appeal, Twum contends that the BIA's order denying

her motion to reopen erred in two regards.      First, she argues that

she amply demonstrated her eligibility for a timeliness waiver and

relief based on the special rule for battered spouses and that the



        6
       Twum alleges that, before leaving Ghana, she narrowly
escaped two attempts to subject her to FGM, both undertaken at
Asumadu-Baffi's insistence.    In addition, her motion to reopen
included several appended reports and articles concerning FGM
practices and trends in Ghana.


                                  - 7 -
BIA's decision to the contrary is unsupportable on the record.

Second, Twum contends that she made a sufficient demonstration of

both "changed country conditions" within Ghana and her substantive

entitlement      to    asylum,   withholding    of    removal,   and   CAT-based

relief to merit reopening on those grounds.7               We consider these

arguments in turn.

  A.       Special Rule Cancellation of Removal for Battered Spouses

               Under   the   "special    rule   for   battered   spouse[s]    or

child[ren]," the Attorney General may cancel the removal of an

otherwise deportable alien who demonstrates, inter alia, that he

or she has been "battered or subjected to extreme cruelty by a

spouse or parent who is or was a United States citizen" or a

"lawful permanent resident."            8 U.S.C. § 1229b(b)(2)(A)(i)-(ii).

A separate section of the statute extends the period for filing

motions to reopen based on the special rule, allowing one year


       7
       In her reply brief, Twum asserts in passing that our review
should also encompass the BIA's March 29, 2012, order of removal.
In this regard, she is mistaken. The time to review the order of
removal has long since passed, 8 U.S.C. § 1252(b)(1), and a motion
to reopen does not serve as a vehicle for reinvestigating the
merits of the underlying decision, see Zhang v. I.N.S., 348 F.3d
289, 292 (1st Cir. 2003) ("[B]ecause [petitioner] appealed the
BIA's . . . denial of asylum well over the thirty-day limit, we
lack jurisdiction to review the underlying denial.").
     For its part, the Government contends that we lack
jurisdiction to consider the BIA's discretionary decision to deny
sua sponte reopening. We need not consider that issue, however,
as Twum does not present any challenge to that ground for denying
reopening. See Xiao He Chen v. Lynch, 825 F.3d 83, 89 n.5 (1st
Cir. 2016).


                                        - 8 -
from the final entry of the order of removal as a matter of course

and further permitting that "the Attorney General may, in the

Attorney       General's    discretion,        waive   [the    one-year]        time

limitation in the case of an alien who demonstrates extraordinary

circumstances or extreme hardship to the alien's child."                        Id.

§ 1229a(c)(7)(C)(iv)(III).

               Careful readers will note that these statutory sections

implicate not one but two levels of discretion: the Attorney

General      is   given   discretion   to   extend     the   time   to   file   for

reopening based on the special rule and also to cancel the removal

of an alien who demonstrates his or her eligibility under that

rule.       The Government argues that this discretionary power strips

us of jurisdiction to entertain Twum's arguments, pointing to

8 U.S.C. § 1252(a)(2)(B), which states:

               [N]o court shall have jurisdiction to review
               . . .
               (i) any judgment regarding the granting of
               relief under section . . . 1229b of this title,
               or
               (ii) any [] decision or action of the Attorney
               General . . . the authority for which is
               specified under this subchapter[8] to be in the
               discretion of the Attorney General . . . .

There are exceptions only for "constitutional claims or questions

of law."      Id. § 1252(a)(2)(D).



        8
       The "subchapter" in question is Title 8, Chapter 12,
Subchapter II of the U.S. Code, which includes the timeliness
waiver in 8 U.S.C. § 1229a(c)(7)(C)(iv)(III).


                                       - 9 -
              It is evident without question that the statute leaves

final determination on whether to grant timeliness waivers and

cancellation of removal to the Attorney General's discretion and

so places those decisions beyond our review.9                      The only question

left to us is whether that unreviewable discretion also extends to

the       predicate        question      of      eligibility,     i.e.    the     BIA's

determination         as    to    whether     Twum     demonstrated    "extraordinary

circumstances" or "extreme hardship" within the meaning of the

waiver provision or that she was "battered or subjected to extreme

cruelty"     under     the       cancellation     provision.       The   Government's

contention that Twum's arguments fall beyond our reach is amply

supported by caselaw from other circuits, which have largely

declined      jurisdiction         to    second-guess      BIA    decisions     denying

waivers or cancellation absent an evident constitutional or legal

challenge.       See,       e.g.,       Joseph    v.   Lynch,    793   F.3d   739,   742

(7th Cir. 2015) (as to timeliness waiver); Guzman-Munoz v. U.S.



      9 In her reply, Twum contends that the Supreme Court's
decision in Kucana v. Holder, 558 U.S. 233 (2010), preserves the
courts' ability to review even discretionary decisions "without
any limitations." She overreads Kucana, however, which addressed
only whether decisions on motions to reopen described by regulation
as     discretionary    were     shielded     from    review     by
Section 1252(a)(2)(B)(ii). Id. at 252-53. In so doing, the Court
differentiated the regulation from "decisions specified by statute
to be in the discretion of the Attorney General and therefore
shielded from court oversight by [Section] 1252(a)(2)(B)(ii)," id.
at 248 (emphasis added, internal quotation marks omitted), and
expressly called out the waiver provision at issue here as one
such statutory grant of discretion, id. at 243 n.10.


                                            - 10 -
Att'y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013) (determination

that alien was not a battered spouse is discretionary and not

subject    to     review);     Rosario     v.        Holder,    627    F.3d   58,    63

(2d Cir. 2010) ("BIA determinations as to whether an alien has

been    'battered    or    subjected     to   extreme      cruelty'       require   the

application of law to fact, rather than statutory interpretation.

As such, we have jurisdiction to review these determinations only

when the BIA applies an incorrect law or legal standard.").                         But

see Cardenas v. Lynch, 669 F. App'x 354, 355 (9th Cir. 2016)

(unpublished)       ("The    determination            of   whether     extraordinary

circumstances are present is legal in nature, because it involves

the application of the law to undisputed facts.").

            Our     caselaw,    however,        is    somewhat     more    equivocal.

Though this court has not addressed the particular provisions in

question, it has considered the interplay of Section 1252(a)(2)(B)

and other statutory grants of discretion.                      As a general matter,

those     decisions       support    the      thrust       of    the      Government's

argument: "where Congress has enacted a jurisdictional wall, an

alien cannot scale it simply by 'relitigat[ing] whether the factors

relevant to [the] discretionary relief were appropriately weighted

by the IJ and the BIA."             Mele v. Lynch, 798 F.3d 30, 32 (1st

Cir. 2015) (quoting Urizar-Carrascoza v. Holder, 727 F.3d 27, 32

(1st Cir. 2013)) (alterations in original); see also Elysee v.

Gonzales, 437 F.3d 221, 224 (1st Cir. 2006).                      Most pertinently,


                                       - 11 -
this court's 2013 decision in Castro v. Holder expressly concluded

that    we   lacked   jurisdiction   over    a   challenge     to   the    BIA's

determination     that   a   petitioner   failed   to   show    that      he   was

"battered or subjected to extreme cruelty" in the context of a

separate immigration statute.        727 F.3d 125, 130 (1st Cir. 2013).

In so holding, the panel found that neither the relevant statute

nor the implementing regulation "contemplate an objective legal

standard" for finding that an alien satisfied that criteria, and

so the BIA's determination on that point was purely discretionary.

Id. at 129-30.

             Other cases from this circuit, however, have drawn a

narrow distinction between the BIA's ultimate decision to grant or

deny discretionary relief and its determination as to whether an

alien is eligible for such relief in the first instance.                       One

recent decision considered a remarkably similar statute to that at

issue   here,   which    states   that    "[t]he   Secretary    of     Homeland

Security, in the Secretary's discretion, may [grant unconditional

permanent resident status to certain otherwise ineligible aliens]

if the alien demonstrates that," inter alia, "extreme hardship

would result if such alien is removed." 8 U.S.C. § 1186a(c)(4)(A).

The panel held that it had jurisdiction to review the BIA's

determination as to whether the alien had demonstrated "extreme

hardship," holding that "there is a distinction between questions

of law concerning eligibility for relief and the ultimate decision


                                   - 12 -
. . . to grant such relief if eligibility is found."                   Gitau v.

Sessions, 878 F.3d 429, 433 (1st Cir. 2017).                  Turning to the

implementing      regulation,   Gitau   found   that    its    definition      of

"extreme hardship" provided sufficiently "objective regulatory

criteria" to merit treating the BIA's determination on that point

as non-discretionary and so subject to review.                Id. at 434; see

also Cho v. Gonzales, 404 F.3d 96, 99-103 (1st Cir. 2005) (same as

to precondition of marriage in good faith).

            The    juxtaposition   of   these   lines   of     cases   poses    a

difficult question, but it is one which we are ultimately bound to

resolve against exercising jurisdiction. On the one hand, a number

of the factors stressed by Gitau are present here.             Similar to the

statute at issue in that case, the provisions under consideration

here could be read to distinguish between discretionary decisions

to grant or deny requested relief and the underlying question of

whether an applicant is eligible for such relief in the first

instance.   Moreover, the underlying regulations might be viewed as

offering "objective regulatory criteria": they expressly enumerate

certain categories of violence, threats, and psychological and

sexual abuse that fall within the regulation, while leaving open

the possibility that other forms of abuse may also qualify an alien

for relief.       See 8 C.F.R. § 204.2(c)(1)(vi).       We do not write on

a clean slate, however, and the application of Castro's holding --

that the BIA has unreviewable discretion to determine whether an


                                   - 13 -
alien was "battered or subjected to extreme cruelty" -- to this

appeal is unmistakable.         While Castro considered a separate act,

its holding is grounded in the conclusion that statutory language

and implementing regulations identical to those at issue here do

not "contemplate an objective legal standard."                  727 F.3d at 129.

It is axiomatic that we presume identical language in separate

statutes with similar purposes carry the same meaning, Smith v.

City of Jackson, Miss., 544 U.S. 228, 233 (2005), and so we find

it   inescapable   that    we    should    interpret      the    "special   rule"

cancellation     provision      in    concert      with     Castro's      earlier

construction of the same phrase, cf. San Juan Cable LLC v. P.R.

Tel. Co., 612 F.3d 25, 33 (1st Cir. 2010) ("Under the law of the

circuit rule, however, mere disagreement by a coequal court with

a panel decision will not divest that opinion of its customary

stare decisis effect within the circuit."). Therefore, we conclude

that we are without jurisdiction to review challenges to the BIA's

determination as to whether a petitioner has been "battered or

subjected   to   extreme   cruelty"       within   the    meaning    of   Section

1229b(b)(2).10


      10 Castro's holding does not speak to the distinct
"extraordinary circumstances or extreme hardship" demonstration
needed to obtain a waiver of untimeliness under Section
1229a(c)(7)(C)(iv)(III). We do not address that point, however,
as our conclusion that we lack jurisdiction over the final relief
obviates the need to decide whether the motion for such relief was
timely. See Zajanckauskas v. Holder, 611 F.3d 87, 90 (1st Cir.



                                     - 14 -
            With this conclusion in hand, we can proceed no further

in assessing Twum's arguments based on the special rule for

battered spouses.       Twum does not raise a colorable legal or

constitutional challenge to the BIA's ruling as to either the

timeliness waiver or cancellation of removal, instead arguing only

that she was "clearly eligible" for such relief based on her

proffered evidence.11     Those are precisely the types of "attacks

on the factual findings made and the balancing of factors engaged

in by the" BIA that cannot be reviewed under Castro.              727 F.3d

at 128    (internal   quotation   marks    and   citation   omitted).   We

therefore are compelled to dismiss that portion of Twum's petition

for lack of jurisdiction.

    B.     Asylum, Withholding of Removal, and CAT-based Relief

            Twum next argues that her removal proceedings should be

reopened so that she can pursue claims for asylum, withholding of

removal, and CAT-based relief.      While Twum's motion below features




2010) ("Even if we agree with Petitioner as to the legal issues he
raises on appeal, the result in his case . . . is pre-ordained by
the Agency's discretionary holding.").
     11 We note that Twum does not argue that the BIA entirely
ignored her evidence, which some decisions have treated as raising
a legal claim not subject to Section 1252's jurisdictional bar.
See, e.g., Huang v. Holder, 463 F. App'x 599, 601-02 (7th Cir.
2012) (unpublished) ("We have recognized that a contention that
the Board completely ignored the evidence put forth by a petitioner
is an allegation of legal error. In other words, the Board commits
legal error when it fails to exercise its discretion at
all." (internal quotation marks and citation omitted)).


                                  - 15 -
myriad grounds for relief based on potential harms to herself and

her daughters, she whittles these to down to two points in the

present appeal: first, that she (and her daughters) would face a

risk   of    FGM   and    other   "traditional     and   customary   practices"

directly targeting Ghanaian women; and, second, that she would be

"forced back into the home of" Asumadu-Baffi -- who has returned

to Ghana -- as a result of Ghanaian marital customs.

             As a general proposition, motions to reopen must be filed

within ninety days of the final order of removal.                        8 U.S.C.

§ 1229a(c)(7)(c)(i); 8 C.F.R. § 1003.2(c)(2).              However, that limit

does not apply to petitions seeking either asylum or withholding

of removal if the applicant presents evidence of "changed country

conditions arising in the country of nationality or the country to

which removal has been ordered, if such evidence is material and

was not available and would not have been discovered or presented

at the previous proceeding."             8 U.S.C. § 1229a(c)(7)(C)(ii); 8

C.F.R.      § 1003.2(c)(3)(ii).          "To   establish       changed    country

conditions, the evidence must demonstrate the intensification or

deterioration of country conditions, not their mere continuation,"

Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015) (internal

quotation marks and citation omitted), and the petitioner bears

the    burden      of    making   such   showing     through     a   "convincing

demonstration," id.         In evaluating whether a change has occurred,

"the BIA compares the evidence of country conditions submitted


                                     - 16 -
with the motion to those that existed at the time of the merits

hearing below."     Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir.

2013)   (internal    quotation   marks,   alteration,      and   citation

omitted).

            Once past this procedural hurdle, an alien seeking to

secure reopening must present a "prima facie case sufficient to

ground a claim of eligibility for the underlying substantive

relief."    Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007).

"To make a prima facie case for asylum in the context of a motion

to reopen, the applicant need only produce objective evidence

showing a 'reasonable likelihood' that he [or she] will face future

persecution based on" one of five enumerated statutory grounds:

race, religion, nationality, membership in a particular social

group, or political opinion.      Smith v. Jones, 627 F.3d 427, 437

(1st Cir. 2010) (internal quotation marks and citation omitted).

"An applicant may satisfy this burden through proof of past

persecution, which creates a rebuttable presumption of a well-

grounded fear of future persecution" or, alternatively, by showing

"both that he or she genuinely fears such persecution and that an

objectively    reasonable   person   in   his   or   her   circumstances

would fear such persecution."     Jutus v. Holder, 723 F.3d 105, 110-

11 (1st Cir. 2013) (internal quotation marks, alterations, and

citations omitted); see 8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1).

" A 'reasonable likelihood' means showing a realistic chance that


                                 - 17 -
the petitioner can at a later time establish that asylum should be

granted."    Smith, 627 F.3d at 437 (internal quotation marks and

citation omitted).

            "The   BIA   enjoys   considerable   latitude   in    deciding

whether to grant or deny motions to reopen . . . and we review the

BIA's denial of a motion to reopen only for abuse of discretion."

Wanjiku v. Barr, 918 F.3d 215, 220-21 (1st Cir. 2019) (internal

quotation marks, alterations, and citation omitted).        "Under that

standard, we uphold the BIA's decision 'unless the petitioner can

show that the BIA committed an error of law or exercised its

judgment in an arbitrary, capricious, or irrational manner.'"          Id.

at 221 (quoting Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016)).

            Measured against this standard, Twum's first claim for

relief based on FGM and other "traditional" practices falls short.

As the BIA correctly noted, Twum's proffered evidence fails to

demonstrate a material change in FGM practices in that country.

While Twum's evidence submitted in connection with her motion

suggests that FGM was a problem both before and after her removal

proceedings in 2011 and 2012, it does not reflect any escalation

in the frequency of that practice subsequent to her prior merits

hearing.    The same must be said of the other practices of which

she complains, such as forced marriage and polygamy.             We do not

mean to minimize or downplay the horror of any risk of being

subject to FGM; rather, we stress only that we cannot intervene


                                  - 18 -
absent a showing of changed circumstances.12         See, e.g., Sánchez-

Romero v. Sessions, 865 F.3d 43, 46 (1st Cir. 2017) ("[G]rave

conditions that remain grave do not equate to intensification

. . . .").

             In contrast, however, the BIA did not make a finding --

one way or the other -- regarding changed country conditions as to

Twum's second claimed ground for relief, i.e. that Asumadu-Baffi's

return to Ghana places her in jeopardy of being returned to her

abusive former marriage.     Instead, it considered only whether her

application made out a prima facie showing of entitlement to asylum

on that basis.     We follow the BIA's lead and so proceed directly

to the substance of Twum's asylum claim.13

             In denying relief, the BIA did not challenge the factual

foundations of Twum's claim, most notably that she was abused and

threatened    by   Asumadu-Baffi14   and   that   Asumadu-Baffi   has   now


     12 Because we conclude that the BIA did not abuse its
discretion in finding a lack of changed country conditions, we
need not further consider its conclusion that Twum failed to make
a prima facie showing that she would be eligible for asylum based
on the risk that she (or her daughters) would be subject to FGM.
See Haizem Liu, 727 F.3d at 58 ("Where a petitioner fails to
establish changed circumstances, it is not necessary to reach the
issue of whether she has made out a prima facie case for relief.").
     13 We decline to offer any opinion as to whether Asumadu-
Baffi's return to Ghana is a cognizable change in country
conditions.
     14We note briefly one distinction between this set of claims
and Twum's special rule claim.      As the BIA correctly noted,
Asumadu-Baffi's alleged domestic abuse is not cognizable under the



                                 - 19 -
returned to Ghana.      Nevertheless, the BIA found Twum's claims of

threatened    future    harm   were    "unduly   speculative"   because   she

failed to "offer[] evidence of any recent threats made against her

or any evidence that she has [] been contacted by her ex-husband

since [2002]."

             It is worth stopping here to reiterate what the BIA did

and did not find.        The agency does not expressly or impliedly

conclude that domestic abuse is not a cognizable type of harm, nor

does its opinion suggest a finding that Twum failed to link the

harm    suffered   to   one    of   the   enumerated   statutory   grounds.15

Instead, the BIA appears to have rested solely on the conclusion

that the remoteness of Twum's past abuse removed the objective

foundation of any fear of future harm.




"special rule," which is limited by its terms to abuse committed
by U.S. citizens and legal permanent residents.        8 U.S.C.
§ 1229b(b)(2)(A)(i)(I)-(III). That restriction does not apply to
Twum's other bases for seeking relief.
       15
        The question of whether and under what circumstances
domestic violence and other forms of private violence can
constitute "persecution" is the subject of ongoing litigation
outside of this circuit. See Grace v. Whitaker, 344 F. Supp. 3d
96 (D.D.C. 2018), appeal docketed sub nom. Grace v. Barr, No. 19-
5013 (D.C. Cir. 2019).     The requirements for showing that a
petitioner is a member of a "particular social group" based on
domestic abuse are also the subject of ongoing litigation. See
Matter of A-B-, 27 I & N Dec. 316 (A.G. 2018); see also Rivas-
Duran v. Barr, No. 17-1782, — F.3d —, 2019 WL 2498234, at *4 (1st
Cir. June 17, 2019).    We need not, and do not, address those
questions here.



                                      - 20 -
                It is here that we find fault in the BIA's opinion, the

ambiguities of which hinder effective review.                       Twum argues that

her      evidence      below       establishes        that    she     suffered     past

persecution,16        and    the       BIA's   opinion   is     plausibly   read     to

implicitly accept that premise: in emphasizing only remoteness,

the agency's opinion is susceptible to the interpretation that a

showing of closer-in-time abuse under the same circumstances would

provide Twum with grounds for an asylum claim.                        This, in turn,

raises questions about the BIA's adherence to the regulations.                      As

noted above, the petitioner's showing of past persecution gives

rise to a presumption that he or she would face future persecution.

See, e.g., Smith, 627 F.3d at 437.               This presumption is rebuttable

if the agency finds by a preponderance of the evidence that, inter

alia,        there   has   been    a    fundamental    change    in   circumstances;

however, it is incumbent upon the agency to clearly make that



        16
       While the Government does not pursue any waiver argument,
we acknowledge that Twum did not explicitly call out "past
persecution" by name in her brief to the BIA.          "Under the
exhaustion of remedies doctrine, theories insufficiently developed
before the BIA may not be raised before this court." Silva v.
Gonzales, 463 F.3d 68 (1st Cir. 2006); see also 8 U.S.C.
§ 1252(d)(1). Here, however, we find that the argument was fairly
placed before the BIA, as Twum's claim for asylum centers on her
allegation that she "suffered serious emotional, physical and
psychological abuse [at] the hands of [Asumadu-Baffi] in Ghana"
and her contention that she would suffer the same violence and
worse if returned to that country. Accordingly, we see no reason
to elevate form over function where the substance of Twum's past
persecution claim was squarely before the agency.



                                          - 21 -
finding.17    Cf. Fergiste v. I.N.S., 138 F.3d 14, 18-19 (1st Cir.

1998) (BIA's failure to expressly apply and rebut presumption after

finding of past persecution constitutes legal error).              "In this

case, it is by no means clear that the BIA accepted [Twum's] past

persecution claim, applied a regulatory presumption of a well-

founded fear of persecution, and concluded that evidence of changed

circumstances refuted that presumption."              Hernandez-Barrera v.

Ashcroft, 373 F.3d 9, 23 (1st Cir. 2004); cf. also El Moraghy v.

Ashcroft, 331 F.3d 195, 204-05 (1st Cir. 2004)            ("The absence of

reasoned discussion of past persecution undercuts any meaningful

review of the IJ's fear of future prosecution finding, because we

do not know whether [the petitioner] should have had the benefit

of the regulatory presumption of fear of persecution based on prior

events.").

             If, on the other hand, the BIA did not intend to indicate

its   acceptance   that   Twum's   past     abuse   constituted   remediable

persecution, then its basis for ruling against her is unclear to

us from the face of this opinion and so incapable of meaningful



      17
       We also note that the burden of rebutting the presumption
based on past persecution falls to the Government, not the
applicant. See Hernandez-Barrera, 373 F.3d at 23. Here, the BIA's
choice of words -- indicating that Twum did "not offer[] evidence
of any recent threats made against her or any evidence that she
has . . . been contacted by her ex-husband" -- may be viewed as
impermissibly shifting the burden to Twum, which would also
constitute legal error. Id. at 24.



                                   - 22 -
review.    In either event, the proper remedy is for us to remand to

the   agency    for   further    examination       and    explication    of   its

decision.18     See id. at 26 ("[I]n the absence of a reasoned finding

that [petitioner] did not suffer past persecution or that the

[Government] met its burden of overcoming a regulatory presumption

of future persecution based on past persecution, we remand."); cf.

Larngar    v.   Holder,   562   F.3d   71,    80   (1st   Cir.   2009)   (remand

appropriate where basis for BIA's determination unclear from its

opinion).

                                       III.

            For the foregoing reasons, Twum's petition for relief

under the special rule for battered spouses is dismissed for lack

of jurisdiction, and her petition for review of her asylum,

withholding of removal, and CAT-based claims is denied in part and

granted in part.      The BIA's opinion is vacated in part, and the

matter is remanded for further proceedings consistent with this

opinion.




      18
       The same flaws prevent further evaluation of Twum's claim
for withholding of removal. See 8 C.F.R. §§ 208.16(b)(1),
1208.16(b)(1) (finding of past persecution creates presumption of
entitlement to withholding of relief). Likewise, the Government
offers no reason to differentiate between its arguments as to why
we should deny Twum's request for asylum and withholding and for
CAT-based relief, and so remand is appropriate for that issue as
well.


                                   - 23 -
