Only one published case came down from the Ninth Circuit this week; but, that one case was out of Robert Jobe’s office, so you know it was worth reading. The Ninth Circuit held that the Board of Immigration Appeals (BIA) must conduct a reasoned individualized analysis to determine that an asylum applicant can reasonably relocate within their home country before denying asylum or withholding of removal on that ground. The Supreme Court, the BIA, and the putative Attorney General were all quiet this week.
The Ninth Circuit granted a petition for review on an asylum and withholding of removal case and remanded the case to the BIA to conduct an individualized and reasoned analysis on the feasibility of internal relocation within India where the asylum applicant established past persecution and a well-founded fear of future persecution in India on account of his political opinion.
Facts
Narinder Pal Singh is a native and citizen of India and he is from Punjab. He attempted to enter the United States in 2013 through Nogales, Arizona without a valid entry document. He applied for asylum and passed a credible fear interview. Mr. Singh applied for asylum, withholding of removal and protection under the Convention Against Torture (CAT). Mr. Singh testified that he is a Sikh and a member of the Mann Party. The Mann Party advocates for Sikh rights and for an independent state. Mr. Singh testified that he attended and assisted at Mann rallies and distributed leaflets. Mr. Singh testified that he was prosecuted in India due to his membership in the Mann Party. He testified that the Indian government repeatedly beat him and imprisoned him without pressing any charges. He testified that the beatings were so severe that he required medical treatment including multi-day hospitalizations. In November 2012, Mr. Singh fled. After Mr. Singh fled India, the Indian police continued to go to his house looking for him. In 2014 they attacked his father, breaking his arm.
After Mr. Singh passed a credible fear interview, he applied for asylum in front of an Immigration Judge (IJ). The IJ denied all relief (asylum, humanitarian asylum, withholding, and CAT) finding that Mr. Singh could safely relocate outside Punjab but, within India. The BIA affirmed the IJ’s decision. Mr. Singh moved to reconsider with the BIA. In the motion he argued that the evidence that DHS submitted to establish that he could safely relocate within India, did not establish by a preponderance of the evidence that he could engage in his political activities outside of Punjab; and, that the IJ failed to identify a specific area of the country where Mr. Singh could safely relocate. The BIA denied the motion to reconsider finding no legal or factual errors in its analysis and stating it did not need to identify a specific area of India to which Mr. Singh could safely relocate.
The Ninth Circuit granted the petition for review as to Mr. Singh’s claims for withholding of removal and asylum. The Ninth Circuit found that while the BIA afforded Mr. Singh the presumption of a well-founded fear of persecution, it failed to conduct a “sufficiently individualized analysis of his ability to relocate within India.” Singh v. Whitaker, No. 16-70823, slip op. at *8 (9th Cir. Jan. 24, 2019). But it affirmed the BIA’s finding that Mr. Singh did not qualify for humanitarian asylum or CAT relief.
Requirements for Internal Relocation
Before reading this case, I did not know too much about “internal relocation.” This case provided me with a welcome primer. When an asylum applicant has established past persecution, the burden shifts to the government to show by a preponderance of the evidence that either the applicant no longer has a well-founded fear of persecution in the country of his nationality, or that he can reasonably relocate internally to an area of safety. Afriyie v. Holder, 613 F.3d 924 (9th Cir. 2010); 8 C.F.R. § 1208.13(b)(1)(i). The Ninth Circuit noted that the relocation analysis consists of two steps: (1) “whether an applicant could relocate safely,” and (2) “whether it would be reasonable to require the applicant to do so.” Afriyie, 613 F.3d at 934. For an applicant to be able to relocate safely, there must be an area of the country where they no longer have a well-founded fear of persecution. Matter of M-Z-M-R-, 26 I.&N. Dec. 28 (BIA 2012). Under the regulations, to determine the reasonableness of the relocation, the adjudicator must consider potential harm in the suggested relocation area, ongoing civil strife in the country, and social and cultural constrains. 8 C.F.R. § 1208.13(b)(3).
Everybody agrees that Mr. Singh established past persecution. The BIA held that he could safely relocate “outside Punjab.” Mr. Singh argued that under the BIA’s own precedent where an asylum applicant establishes past persecution “DHS must demonstrate that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level.” M-Z-M-R-, 26 I.&N. Dec. at 33-34 (emphasis added) quoted in Singh v. Whitaker, slip op. at *9. The Ninth Circuit held “DHS may properly propose a specific or a more general area as the place of safe relocation. The BIA must then conduct its safe relocation analysis with respect to that proposed area, however specifically or generally defined. The Ninth Circuit noted “[c]ommensurate with DHS’s burden, a more generally defined area will likely require a more comprehensive showing of proof that the entirety of the area is safe for relocation, as compared to, for example a specific city.” Singh v. Whitaker, slip op. at *10-11.
Reasonableness of Relocation
Mr. Singh argued that the BIA erred in failing to analyze whether Mr. Singh would be substantially safer in a new location if he were to continue to express his support for the secession movement. He argued that the BIA erred by unlawfully assuming that he could silence his political activity to avoid harm. The Ninth Circuit agreed with Mr. Singh. The Ninth Circuit noted that the BIA’s analysis focused on whether the Punjabi police would follow Mr. Singh outside of Punjab to persecute him; rather than local authorities where he relocated, and others would persecute Mr. Singh on account of his political opinion.
We hold that the BIA must conduct a reasoned analysis with respect to a petitioner’s individualized situation to determine whether, in light of the persons or entities that caused the past persecution, and the nature and extent of the persecution, there are one or more general or specific areas within the petitioner’s country of origin where he has no well-founded fear of persecution and where it is reasonable to relocate, considering the factors set forth in 8 C.F.R. § 1208.13(b)(3). Here, in determining Singh could safely and reasonably relocate “outside Punjab,” the BIA failed to conduct such an individualized analysis, and we remand this claim to the BIA to determine anew whether relocation is appropriate for Singh.
Singh v. Whitaker, slip op. at *13. In a footnote, the Ninth Circuit noted that the BIA conflated its analysis regarding Mr. Singh’s asylum claim with his withholding of removal claim. The Ninth Circuit noted that because the BIA denied Mr. Singh’s claim for withholding of removal based on an inadequate determination that he could safely relocate within India, they remanded the case to the BIA to determine whether Mr. Singh qualifies for withholding of removal. Singh v. Whitaker, slip op. at *13 n. 2.
Humanitarian Asylum
Regardless of whether an asylum applicant has established a well-founded fear of persecution, the government can always grant an asylum applicant humanitarian asylum. I always wondered what people were talking about when they started discussing humanitarian asylum. Here’s the definition: “An applicant seeking humanitarian asylum must show either “compelling reasons for being unwilling or unable to return” to his place of nationality “arising out of the severity of the [applicant’s] past persecution,” 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); Matter of L-S-, 25 I.&N. Dec. 705 (BIA 2010); quoted in Singh v. Whitaker, slip op. at *14. Humanitarian asylum based on past persecution may be granted where the applicant has suffered “atrocious forms of persecution.” Kebede v. Ashcroft, 366 F.3d 954 (9th Cir. 1996). The Ninth Circuit then details cases where they granted humanitarian asylum. It is a catalogue of horrors. Mr. Singh’s horrors did not rise to this level.
Finally, the Ninth Circuit found that Mr. Singh did not establish that it was more likely than not that he would be tortured in India. Accordingly, he did not qualify for CAT relief. But the Ninth Circuit remanded the case to see if Mr. Singh qualified for asylum or withholding of removal or whether he could safely internally relocate within India. One thing I have always noticed with cases from Robert Jobe’s office is that the court always relies heavily on the appropriate regulations. It’s just another reminder that one thing that makes a really great immigration lawyer, is citing to the regs.