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Bloggings: To Relocate or Not to Relocate, That is the Question, by: Danielle L. C. Beach-Oswald

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In assessing an asylum seeker's ability to relocate within the borders of the country, the Immigration Judge must decide whether the asylum-seeker can avoid future persecution by moving to another part of the country and whether it would be reasonable to expect the asylum-seeker to do so. A recent BIA decision granted a new hearing to an asylum applicant before an Immigration Judge.  See Matter of M-Z-M-R-, 26 I&N Dec. 28 (BIA 2012). The question of relocation is solved with help of the two-step analysis to show 1) whether the respondent can avoid future persecution by relocating to another part of the country of his nationality; 2) whether under all the circumstances it was reasonable to expect the respondent to do so.


In this case, an asylum seeker from Sri Lanka who entered the US without being admitted or paroled, conceded removability but claimed that he was persecuted in Sri Lanka due to his political activities. He described two incidents of persecution. In 1998, some of his fellow party members died in a shooting in Colombo.  Fearing for his life, he went into hiding, and relocated to a different area, Hatton, where he remained safely until July 2000.  In July 2002, after he returned to Colombo, he was arrested, harassed and beaten by police, and accused of assisting the Liberation Tigers of Tamil Eelam (a militant organization to which he never belonged). After police released him, he relocated to Hatton again, fearing for his safety. Subsequently, he departed to the USA. 


The asylum case was denied by an Immigration Judge on April 11, 2005, and the BIA dismissed the appeal. The Board found that the respondent established past persecution, but he was able to relocate within Sri Lanka. The respondent submitted a petition for review with the Circuit Court. On February 28, 2011, the US Court of Appeals for the Ninth Circuit remanded the case to the BIA for a new determination of respondent's eligibility for asylum. On remand, the Board discussed whether the asylum seeker can avoid future persecution by relocating and whether the relocation would be reasonable for him.


The fact that the asylum seeker can relocate safely must be proven by DHS by a preponderance of evidence.  In this case, the Board found that the area where the respondent will tentatively relocate must be safe and conditions there must not give a rise to a "well-founded fear of persecution" based on the original claim.  The Board remanded the matter for the Judge to decide whether there is an area where the risk of persecution to the respondent does not amount to "well-founded fear of persecution" and whether this area is "practically, safely, and legally accessible to him."


On the question of whether relocation would be reasonable, the Board again emphasized that it is DHS' task to demonstrate by a preponderance of evidence that the asylum applicant can "avoid future persecution by relocating to another part of [his] country of nationality" pursuant to 8 C.F.R. 1208.13(b)(1)(i)(B). Also, that "it would be reasonable to expect." See 8 C.F.R. 1208.13 (b)(3). Due to the fact that Immigration Judge did not conduct fact-finding on this question, the Board suggested that the Judge on remand can resolve the question of internal relocation.


It should be noted that the standard of "reasonability" is very confusing because there are no direct guidelines that help determine the safe places in the asylum-seeker's home country. Even if the safe havens exist, it is unclear if the applicant can practically move there.  A rainforest or an unpopulated desert or mountains can be safe from persecution, but unrealistic to live in.


Principally, the value of this case is in the two-step balancing test. On the other hand, multiple factors are to be considered in the relocation or suggested relocation: "other serious harm" including "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." Yet, the caveat in the case bursts the hope balloon by stating that these factors may or may not be relevant and are not necessarily determinable of reasonableness in relocating.


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