26 I. & N. Dec. 28
BIA2012Background
- respondent Sri Lankan citizen seeks asylum after past persecution; removal proceedings ongoing in the US.
- Board remanded after Ninth Circuit reversed on 1-year deadline, directing reconsideration of asylum, withholding, and CAT relief.
- 2000 regulations split internal relocation inquiry into feasibility and reasonableness, with a two-step test and burden-shifting rules.
- DHS argues internal relocation to Hatton is possible and reasonably expected; respondent argues Hatton is not safe and cites different incidents (1998 vs 2002).
- Immigration Judge’s findings were incomplete; Board remands for explicit findings on safety/accessibility of Hatton and the reasonableness under all circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can the respondent safely relocate within Sri Lanka? | DHS contends relocation to Hatton is feasible; no ongoing risk and Hatton accessible. | Rudrakumaran argues Hatton remains unsafe post-2002 and time in Hatton after 1998 is not relevant. | Remand for factual findings on safety/accessibility. |
| If relocation is possible, is it reasonable to expect relocation under all circumstances? | DHS balancing factors show relocation would be reasonable where circumstances allow. | Rudrakumaran contends other factors and past persecution weigh against reasonableness. | Remand for complete balancing once relocation finding is made. |
| Does the record adequately address required regulatory findings for internal relocation? | Regulatory framework supports rebutting presumption if relocation is reasonable under all circumstances. | Record lacks complete findings tying Hatton to current conditions and accessibility. | Remand for explicit findings of fact and law. |
Key Cases Cited
- Tendean v. Gonzales, 503 F.3d 8 (1st Cir. 2007) (relocation can abate risk where no statewide threat)
- Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) (relocation safety supports asylum denial when safe area exists)
- Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) (safety of relocation determined by area-specific risk)
- Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003) (first step assesses if relocation would abate persecution)
- Matter of D-I-M-, 24 I&N Dec. 448 (BIA 2008) (presumption of refugee status and relocation burden shifting guidance)
- Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (need for clear factual findings on relocation and risk)
- Gambashidze v. Ashcroft, 381 F.3d 187 (3d Cir. 2004) (two-step relocation inquiry influenced by regulatory history)