Cite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
28
Matter of M-Z-M-R-, Respondent
Decided October 4, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In assessing an asylum applicant’s ability to internally relocate, an Immigration Judge
must determine whether the applicant could avoid future persecution by relocating to
another part of the applicant’s country of nationality and whether, under all the
circumstances, it would be reasonable to expect the applicant to do so.
(2) For an applicant to be able to internally relocate safely, there must be an area of the
country where the circumstances are substantially better than those giving rise to a
well-founded fear of persecution on the basis of the original claim.
(3) If an applicant is able to internally relocate, an Immigration Judge should balance the
factors identified at 8 C.F.R. § 1208.13(b)(3) (2012) in light of the applicable burden of
proof to determine whether it would be reasonable under all the circumstances to expect
the applicant to relocate.
FOR RESPONDENT: Visuvanathan Rudrakumaran, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kristin Piepmeier, Senior
Attorney
BEFORE: Board Panel: GUENDELSBERGER and ADKINS-BLANCH, Board Members;
MANUEL, Temporary Board Member.
ADKINS-BLANCH, Board Member:
This case was last before us on November 13, 2006, when we dismissed the
respondent’s appeal from an Immigration Judge’s April 11, 2005, decision.
We agreed with the Immigration Judge that the respondent had not established
that he filed his asylum application within 1 year after the date of his arrival
in the United States or that he was eligible for withholding of removal.
Specifically, although we found that the respondent established past
persecution on account of a protected ground, we concluded he was able to
relocate within Sri Lanka.
On February 28, 2011, the United States Court of Appeals for the Ninth
Circuit reversed our application of the 1-year deadline. The record was
remanded for a new determination of the respondent’s eligibility for asylum,Cite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
29
withholding of removal, and protection under the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted
and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”), in light of the applicable regulatory framework. The record will be
remanded to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Sri Lanka who entered the
United States without being admitted or paroled. He has conceded that he is
removable based on his unlawful presence in this country, but he seeks relief
from removal based on his claimed persecution in Sri Lanka.
The respondent testified that in August 1998, he and a number of other
People’s Alliance Party members were shot at in a park. Two party members
died as a result of the shooting. The respondent then relocated from Colombo
to Hatton in February 1999 and remained there until July 2000. In July 2002,
after he had returned to Colombo, the respondent was arrested, beaten, and
detained by police, who accused him of assisting the Liberation Tigers of
Tamil Eelam (“LTTE”). The police then transferred his custody to the
Sri Lankan Army, which released him after a week of beatings and
interrogations and required him to report weekly to the authorities. Rather
than report as directed, the respondent again relocated to Hatton until January
2003, when he departed the country.
The Ninth Circuit has held the respondent is eligible to apply for asylum.
Since we previously determined that he suffered past persecution by the
Sri Lankan Government, the remaining issue, as directed by the court, is
whether the Department of Homeland Security (“DHS”) has rebutted the
presumption that the respondent has a well-founded fear of persecution under
the regulatory framework regarding internal relocation.
II. ISSUE
The issue before us is whether the DHS has demonstrated that the
respondent “could avoid future persecution by relocating to another part of
[his] country of nationality” and that “under all the circumstances, it would be
reasonable to expect [him] to do so” pursuant to 8 C.F.R. § 1208.13(b)(1)(i)(B)
(2012).Cite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
30
III. ANALYSIS
The respondent argues that the DHS has not carried its burden of
demonstrating by a preponderance of the evidence that he can safely relocate
within Sri Lanka and that it would be reasonable under all the circumstances
to expect him to do so. He asserts that the circumstances of the 1998 and 2002
incidents were fundamentally different, so his abilityto relocate to Hatton after
the 1998 incident is not relevant to whether it is reasonable for him to relocate
there after the 2002 incident. On this point, he argues that the 1998 shooting
was caused byan interpartyrivalrybetween the respondent’s People’s Alliance
Party and the ruling United National Party. In contrast, he claims that his 2002
detention was caused by an interethnic conflict between the Sri Lankan
Government and the LTTE. According to the respondent, he hid in Hatton for
6 months after the 2002 incident, during which time he was under an
obligation to report to the Sri Lankan Army weekly, and the Army went to his
home in Colombo on numerous occasions to look for him. The respondent
also contends that he is eligible for protection under the Convention Against
Torture.
The DHS argues that the respondent is not eligible for asylum or
withholding of removal because he can safely relocate within Sri Lanka.
Specifically, the DHS asserts that the respondent can reasonably be expected
to relocate to Hatton because he previously resided there and never suffered
any harm. According to the DHS, the Sri Lankan Government prevailed in the
civil war and there is no longer any civil strife that would affect the respondent
should he return to Sri Lanka. Further, there is no indication that the lack of,
or corruption of, anyadministrative, economic, or judicial infrastructure would
prevent the respondent from safely relocating to the town of Hatton or that
there are any social or cultural constraints on the respondent’s ability to
relocate there. Moreover, the respondent is a 45-year-old male who has not
complained of any health issues and whose family resides in Sri Lanka, and he
has not suggested that he has cultural differences from the majority of the
people in that country that would cause him to have any difficulty there.
Finally, the DHS argues the respondent is not eligible for protection under the
Convention Against Torture because there is no evidence to show that the
Government of Sri Lanka would torture him or otherwise condone his torture.
On December 6, 2000, the Attorney General promulgated final regulations
clarifying, among other things, how Immigration Judges should adjudicate
issues related to internal relocation. See Asylum Procedures, 65 Fed.
Reg. 76,121, 76,126-27 (Dec. 6, 2000) (Supplementary Information);see also
Executive Office for Immigration Review; New Rules Regarding Procedures
for Asylum and Withholding of Removal, 63 Fed. Reg. 31,945 (proposed
June 11, 1998). In the case of an applicant who meets the “refugee” definitionCite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
1 The regulations are described as “guidelines on the exercise of discretion in
determining an applicant’s eligibility for asylum, once he or she has been found to meet
the definition of refugee based on past persecution.” 65 Fed. Reg. at 76,126
(Supplementary Information); see also Singh v. Ilchert, 63 F.3d 1501, 1511 (9th Cir.
1995) (“[T]he reasonableness of an applicant’s ability to relocate in his or her home
country may be considered in the Attorney General’s exercise of discretion in granting or
denying asylum as a form of relief.”), superseded on other grounds by statute, REAL ID
Act of 2005, Div. B of Pub. L. No. 109-13, 119 Stat. 302, as recognized in Parussimova
v. Mukasey, 533 F.3d 1128, 1133 (9th Cir. 2008); Singh v. Ilchert, 69 F.3d 375, 379-80
(9th Cir. 1995) (same).
2
In the case of an applicant whose fear of future persecution is unrelated to any past
persecution, the regulations direct Immigration Judges to find that such an applicant does
not have a well-founded fear of persecution if that applicant could avoid persecution by
relocating to another part of the applicant’s country of nationality or, if stateless, another
part of the applicant’s country of last habitual residence, if under all the circumstances it
would be reasonable to expect the applicant to do so. 8 C.F.R. § 1208.13(b)(2)(ii).
3 The regulatory framework applicable to withholding of removal operates in a parallel
manner. See 8 C.F.R. § 1208.16(b)(1)(i)(A), (B), (ii) (2012). We need not and do not
address it here.
31
based on past persecution, the regulations now direct Immigration Judges to
deny asylum as a matter of discretion1
if the DHS rebuts a presumption that the
applicant has a well-founded fear of future persecution on the basis of the
original claim2
by establishing by a preponderance of the evidence either that
there has been “a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in [his or her] country of
nationality,” 8 C.F.R. § 1208.13(b)(1)(i)(A), or that the “applicant could avoid
future persecution by relocating to another part of the applicant’s country of
nationality or, if stateless, another part of the applicant’s country of last
habitual residence, 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);see also Matter
of D-I-M-, 24 I&N Dec. 448, 449-50 (BIA 2008); 8 C.F.R. § 1208.13(b)(1)(ii)
(regarding the DHS’s burden of proof).3 Where the DHS has rebutted this
presumption, a “refugee” may nevertheless be granted asylum in the exercise
of discretion if he or she demonstrates either “compelling reasons for being
unwilling or unable to return” to his or her country of nationality, 8 C.F.R.
§ 1208.13(b)(1)(iii)(A), or “a reasonable possibility that he or she may
suffer other serious harm upon removal to that country,” 8 C.F.R.
§ 1208.13(b)(1)(iii)(B);see also Matter of L-S-, 25 I&N Dec. 705 (BIA 2012).
The 1998 proposed regulation set forth a unified inquiry into whether “the
applicant could reasonably avoid persecution by relocating.” 63 Fed. Reg. at
31,949. This regulation received manycomments asserting that it was contrary
to United States and international law. The 2000 regulation then bifurcatedCite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
4 Even before the regulation was promulgated, a number of courts of appeals and the
Board engaged in a similar two-step inquiry. See Gambashidze v. Ashcroft, 381 F.3d
187, 192 n.2 (3d Cir. 2004) (citing Melkonian v. Ashcroft, 320 F.3d 1061, 1069-71 & n.3
(9th Cir. 2003)); Manzoor v. United States Dep’t of Justice, 254 F.3d 342, 347-48 (1st
Cir. 2001); Singh v. Ilchert, 63 F.3d at 1510-12; Matter of H-, 21 I&N Dec. 337, 349 n.7
(BIA 1996); Matter of R-, 20 I&N Dec. 621 (BIA 1992).
32
the inquiry into whether the “applicant could avoid future persecution by
relocating” and whether, “under all the circumstances, it would be reasonable
to expect the applicant to do so.” 65 Fed. Reg. at 76,133 (codified at 8 C.F.R.
§ 1208.13(b)(1)(i)(B)). This change was accompanied by the following:
The Department does agree . . . that some changes to the proposed language are
appropriate in order to ensure that those provisions are applied in a manner that
complies with our international obligations under the 1951 Convention relating to the
Status of Refugees (“1951 Convention”), as modified by the 1967 Protocol relating
to the Status of Refugees. In determining how to revise these provisions, the
Department referred to the relevant provisions of the United Nations High
Commissioner for Refugee’s Handbook on Procedures and Criteria for Determining
Refugee Status (“UNHCR Handbook”). . . .
. . . .
[T]he provisions have been revised to require a showing by the Service that “under
all the circumstances, it would be reasonable to expect the applicant to (relocate).”
That language is nearly identical to the language used in the relevant section of the
UNHCR Handbook, paragraph 91.
65 Fed. Reg. at 76,127 (Supplementary Information). Accordingly, the final
regulation sets forth a two-step approach for determining an applicant’s ability
to internally relocate and the reasonableness of expecting such relocation.4
Under the first step, an Immigration Judge must decide whether “[t]he
applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(1)(i)(B). The
second step of the inquiry is whether “under all the circumstances, it would be
reasonable to expect the applicant to do so.” Id.
1. Ability To Internally Relocate
First, the regulations at 8 C.F.R. § 1208.13(b)(1)(i)(B) provide, in pertinent
part, as follows:
[A]n immigration judge, in the exercise of his or her discretion, shall deny the asylum
application of an alien found to be a refugee on the basis of past persecution if [it] is
found by a preponderance of the evidence [that]
(B) The applicant could avoid future persecution by relocating to another part of
the applicant’s country of nationality . . . .Cite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
5
Importantly, because internal relocation is possible only if the threat of persecution does
not exist countrywide, Immigration Judges conducting this inquiry should be guided by our
longstanding precedents pertaining to the requirement that an applicant have a countrywide
fear of persecution. Applying that requirement in Matter of C-A-L-, 21 I&N Dec. 754, 757
(BIA 1997), we found that the Department of State country conditions report on Guatemala
indicated that the guerrillas were concentrated in remote areas with large Indian populations
not easily accessible to government control, that the threat to the general population had
decreased, and that most low-profile victims of localized harassment by the guerrillas could
relocate away from the area where they experienced problems. Similarly, in Matter of R-,
20 I&N at 627, we held that a preponderance of the evidence established that conditions in
India, outside Punjab, were not such that the applicant would have a well-founded fear of
returning to that country. Finally, in Matter of Acosta, 19 I&N Dec. 211, 236 (BIA 1985),
modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), we
concluded that the respondent’s facts did not demonstrate that the guerrillas’ persecution of
taxi drivers occurred throughout the country of El Salvador.
33
Regarding the changes to the regulation in 2000, the Attorney General stated
that the inquiry is into “the applicant’s ability to relocate safely in his or her
home country.” 65 Fed. Reg. at 76,127 (Supplementary Information)
(emphasis added). Under the 1998 proposed version of the regulation, the
inquiry was said to be whether “an applicant is able to avail himself or herself
of protection in any part of his or her country of origin.” 63 Fed. Reg. at
31,948 (Supplementary Information) (emphasis added).
For an applicant to be able to internally relocate safely, there must be an
area of the country where he or she has no well-founded fear of persecution.5
See Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007) (finding that
“substantial evidence support[ed] the BIA’s findings that Tendean [could]
avoid future persecution by relocating” because there was “no sign that
Tendean or his family faced any risk outside” his “very small home village”
in Indonesia); Kaiser v. Ashcroft, 390 F.3d 653, 659-60 (9th Cir. 2004)
(holding that the petitioners met their burden of proving that internal relocation
would be unsafe); Knezevic v. Ashcroft, 367 F.3d 1206, 1214-15 (9th Cir.
2004) (finding that the petitioners could safely relocate to the Serb-held parts
of Bosnia-Herzegovina without fear of the Croats or Muslims); Lukwago
v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003) (identifying the first step of the
analysis as one into whether relocation “would abate the risk of persecution”).
Moreover, because the purpose of the relocation rule is not to require an
applicant to stay one step ahead of persecution in the proposed area, that
location must present circumstances that are substantially better than those
giving rise to a well-founded fear of persecution on the basis of the original
claim.
As a threshold matter, where, as here, an applicant meets the “refugee”
definition based on past persecution, the DHS must demonstrate that there isCite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
34
a specific area of the country where the risk of persecution to the respondent
falls below the well-founded fear level. If the evidence (such as, for example,
country reports, Department of State bulletins, or reputable news sources)
indicates that the area may not be practically, safely, and legally accessible,
then the DHS would also bear the burden to show by a preponderance of the
evidence that the area is or could be made accessible to the applicant. See
8 C.F.R. § 1208.13(b)(1)(ii) (providing that the DHS bears the burden of proof
by a preponderance of the evidence).
As the respondent argues, the Immigration Judge’s findings in the record
appear to conflate the respondent’s time in Hatton after the 1998 and 2002
incidents. Moreover, the Immigration Judge did not make findings as to the
circumstances of the respondent’s 6-month stayin Hatton following his release
from detention by the Sri Lankan Army, including whether and in what
capacity he was in hiding there, whether authorities continued to search for
him during that time, and whether Hatton is now accessible to him. We
therefore find that the Immigration Judge’s order is insufficient to permit
meaningful appellate review. See Matter of S-H-, 23 I&N Dec. 462, 465
(BIA 2002) (stating that in view of the Board’s limited fact-finding function,
it is “increasingly important for the Immigration Judge to make clear and
complete findings of fact that are supported by the record and in compliance
with controlling law”). Accordingly, we will remand the record for the
Immigration Judge to make findings of fact and law with respect to whether
the risk of persecution to the respondent in Hatton, or another proposed area,
falls below the well-founded fear level and whether that proposed area is
practically, safely, and legally accessible to him.
2. Reasonableness of Internal Relocation
If the first step of the internal relocation analysis shows that an applicant
is able to internally relocate, the Immigration Judge must next determine
whether “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). As was the case with the
inquiry into the possibility of internal relocation, the Department made
significant changes to the 1998 version of the reasonableness inquiry.
Importantly, the 1998 proposed rule directed adjudicators to consider only
whether “there is a reasonable possibility that the applicant would face other
serious harm in the place of potential relocation.” 63 Fed. Reg. at 31,949. In
contrast, the final regulation introduced a balancing test, directing that
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; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as age, gender,Cite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
6 According to the Handbook,
The fear of being persecuted need not always extend to the whole territory of the
refugee’s country of nationality. . . . [A] person will not be excluded from refugee
status merely because he [or she] could have sought refuge in another part of the
same country, if under all the circumstances it would not have been reasonable to
expect him [or her] to do so.
Office of the United Nations High Commissioner for Refugees, Handbook on Procedures
and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees, para. 91, at 21-22 (Geneva, 1992).
7 The Immigration Judges and the Board must consider these factors in light of the
appropriate burden of proof to determine the reasonableness of internal relocation. See, e.g.,
Afriyie v. Holder, 613 F.3d 924, 935 (9th Cir. 2010) (“We cannot determine from the record
whether [the Board improperly placed the burden on the applicant with respect to relocation]
or whether [it] considered the factors set forth in 8 C.F.R. § 1208.13(b)(3).”); Bace
v. Ashcroft, 352 F.3d 1133, 1140-41 (7th Cir. 2003) (remanding for the DHS to meet its
burden of showing that internal relocation was reasonable for Albanian applicants where
mixed information in a country report partly supported their claims).
35
health, and social and familial ties. Those 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). As the Attorney General stated in regard to the
regulation, the reasonableness language “is nearly identical to the language
used in the relevant section of the UNHCR Handbook, paragraph 91,” and “is
consistent with the general standard for adjudicating well-founded fear
claims.”6
65 Fed. Reg. at 76,127 (Supplementary Information). Under the
regulation, even if an applicant is able to relocate safely, it may nevertheless
be unreasonable to expect the applicant to do so.
The regulations provide that the basis on which refugee status is
established dictates the applicable burden of proof.7 Where, as here, an
applicant has demonstrated past persecution, “it shall be presumed that internal
relocation would not be reasonable, unless the Service 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);see also
Matter of D-I-M-, 24 I&N Dec. at 451 (finding that the respondent, by
mandate of the regulations, was entitled to a rebuttable presumption of future
persecution, and remanding because the Immigration Judge did not explicitly
apply the presumption and failed to shift the burden of proof to the DHS). By
contrast, where past persecution has not been established, the applicant bears
the burden of establishing that relocation would not be reasonable, unless theCite as 26 I&N Dec. 28 (BIA 2012) Interim Decision #3769
8 On remand, the parties may present any additional evidence pertaining to the respondent’s
eligibility for asylum, withholding of removal, or protection under the Convention Against
Torture, including whether and to what extent country conditions have changed in
Sri Lanka.
36
persecution is by a government or is government sponsored. 8 C.F.R.
§ 1208.13(b)(3)(i).
Because we have determined that it is necessary for the Immigration Judge
to make findings of both fact and law with respect to whether the respondent
is able to internally relocate, we are unable on this record to address whether
it would be reasonable to expect him to relocate to Hatton or to another
proposed area. On remand, if the Immigration Judge finds that the respondent
is able to internally relocate, she should balance the factors identified at
8 C.F.R. § 1208.13(b)(3) in light of the applicable burden of proof to
determine whether it would be reasonable under all the circumstances to
expect the respondent to do so.
IV. CONCLUSION
We find it necessary to remand the record to the Immigration Judge for
further proceedings. On remand, the Immigration Judge should determine
whether the respondent could avoid future persecution byrelocating to another
part of Sri Lanka and whether, under all the circumstances, it would be
reasonable to expect him to do so.8
If the Immigration Judge finds that the
DHS has rebutted the presumption that the respondent has a well-founded fear
of future persecution on the basis of the original claim, she should determine
whether the respondent has compelling reasons arising out of the severity of
the past persecution for being unwilling or unable to return to Sri Lanka or
whether there is a reasonable possibility that he may suffer other serious harm
upon his removal to Sri Lanka. See Matter of L-S-, 25 I&N Dec. 705; 8 C.F.R.
§ 1208.13(b)(1)(iii). The Immigration Judge should also consider the
respondent’s eligibility for protection under the Convention Against Torture.
See 8 C.F.R. § 1208.16(c) (2012). Accordingly, the record will be remanded
to the Immigration Judge.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.