An asylum applicant who demonstrates he or she has suffered past persecution is presumed to have a well-founded fear of persecution if forced to return to his or her country of citizenship or last habitual residence. See 8 C.F.R. ??1208.13(b)(1). Once the asylum applicant has established he or she suffered past persecution, the burden of proof shifts to the Department of Homeland Security (DHS) to rebut this presumption. The DHS must rebut this presumption by establishing by a preponderance of the evidence that "[t]here has been a fundamental change in circumstances", 8 C.F.R. ?1208.13(b)(1)(i)(A), or the alien "could avoid future persecution by relocating to another part of the applicant's country of nationality[.]" 8 U.S.C. 1158(b)(1)(i)(B).
Two Step Inquiry
A two-step inquiry is required to "determin[e] an applicant's ability to internally relocate and the reasonableness of expecting such relocation[.]" Id. at 32. "[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." Id. at 33. See also Tendean v. Gonzales, 503 F.3d 8, 11 (1st Cir. 2007). The BIA has held "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." Id.
What Does It Mean?
This means the DHS must identify a specific area within the country of return where the alien's risk of future persecution is less than the well-founded fear level not merely a vague assertion the applicant could relocate within the country. Id. Assuming there is a specific area within the country where the alien's fear of persecution would no longer be well-founded, the DHS must also demonstrate the region is practically, safely, and legally accessible to the alien. Id.
Once 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.'" Id. at 34 citing 8 C.F.R. ?1208.13(b)(1)(i)(B). In determining whether internal relocation is reasonable, the Immigration Judge (IJ) must balance several factors including, but not limited to, "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, health, and social and familial ties." 8 C.F.R. ?1208.13(b)(3).
This decision underscores the need to thoroughly document your application for asylum. It is important to not only document your claim for asylum as fully as possible, but also be prepared if the DHS attempts to establish by a preponderance of the evidence that either you no longer have a well-founded fear of future persecution or could reasonably relocate to another part of the country of return. See 8 C.F.R. ? 1208.13(b)(1)(i)(A)-(B). An experienced immigration attorney will not only ensure your I-589 Application for Asylum and for Withholding of Removal, but also assist you in thoroughly documenting and presenting your claim to the Asylum Office and/or Immigration Court. Contact our office today if you or a loved one wishes to seek asylum in the United States.