On Thursday, the BIA held that a Sri Lankan citizen who had been found to have suffered past persecution in Sri Lanka was entitled to a new hearing before an Immigration Judge. The issue was whether the DHS had demonstrated that he “could avoid future persecution by relocating to another part of [his] country of nationality” and whether “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). That standard has counfounded Immigration Judges and applicants, because it has been difficult to know to what extent the DHS must prove that there are safe places in the home country and that, even if there are, whether it would be reasonable for the applicant to have to go there. One could envision the safest place in your country being an unpopulated desert. Yes, you could avoid persecution by going there, but it would not be reasonable to have to move to the wilderness to avoid persecution.
The Board concluded in M-Z-M-R that “[f]or 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.” The circumstances there must be “substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.” The Board thus remanded 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.”
On the question of whether relocation would be reasonable, the Board began with the presumption “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.” But because the IJ had not conducted fact-finding on this question, the Board ordered that if the IJ on remand “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.”