D-I-M

Cite as 24 I&N Dec. 448 (BIA 2008) Interim Decision #3599

Matter of D-I-M-, Respondent

Decided February 12, 2008

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) When evaluating an application for asylum, the Immigration Judge must make a

specific finding that the applicant has or has not suffered past persecution based on a

statutorily enumerated ground and then apply the regulatory framework at 8 C.F.R.

§ 1208.13(b)(1) (2007).

(2) If the applicant has established past persecution, there is a presumption of a

well-founded fear of persecution in the future and the burden shifts to the Department of

Homeland Security to prove by a preponderance of the evidence that there are changed

country conditions, or that the applicant could avoid future persecution by relocating, and

that it would be reasonable to do so under all of the circumstances.

FOR RESPONDENT: Gay L. Hellman, Esquire, Oklahoma City, Oklahoma

BEFORE: Board Panel: OSUNA, Acting Chairman; COLE and PAULEY, Board Members.

COLE, Board Member:

In a decision dated April 18, 2006, an Immigration Judge found the

respondent removable and ineligible for asylum, withholding of removal, and

protection under the Convention Against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.

Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the

United States Apr. 18, 1988), but granted him voluntary departure. The

respondent has filed a timely appeal from that decision. The Department of

Homeland Security (“DHS”) has not filed a brief on appeal. The appeal will

be sustained and the record will be remanded to the Immigration Judge for

further proceedings.

The respondent, a native and citizen of Kenya, testified in support of his

applications for asylum and withholding of removal that he was targeted by

members of the Mungiki sect after advising local school children not to join

the group or subscribe to its beliefs. The respondent stated that he was

severely beaten by Mungiki members and that the sect was responsible for

burning down his house.

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In his decision, the Immigration Judge found that the respondent suffered

past persecution at the hands of the Mungiki.1 However, the Immigration Judge

denied the respondent’s application for asylum because he found that the

respondent could safely relocate to another part of Kenya. The Immigration

Judge noted that the 2005 Department of State country report on human rights

practices for Kenya indicated that the Mungiki were “less organized” than in

previous years, and that the police have made efforts to curb the sect despite

some sympathy within the government ranks. See Committees on International

Relations and Foreign Relations, 109th Cong., 2nd Sess., Country Reports on

Human Rights Practices for 2005 288, 290 (Joint Comm. Print 2006); Bureau

of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Kenya Country

Reports on Human Rights Practices - 2005 (May 2006), available at

http://www.state.gov/g/drl/rls/hrrpt/2005/61575.htm. Emphasizing that the

respondent was not a public figure who could be considered a high-level enemy

of the Mungiki, the Immigration Judge rejected the respondent’s suggestion that

the Mungiki were so well organized that they could track him down anywhere

in Kenya and concluded that the respondent could safely relocate in one of the

more metropolitan areas of the country.

We adopt the Immigration Judge’s past persecution finding, as the DHS has

not challenged any part of the Immigration Judge’s decision on appeal. The

only issue before us is whether the Immigration Judge applied the proper

regulatory framework after determining that the respondent suffered past

persecution. We find that the Immigration Judge did not apply the proper

regulatory framework in this case and will therefore sustain the respondent’s

appeal.

An alien applying for relief or protection from removal has the burden of

proving that he or she satisfies the applicable eligibility requirements and merits

a favorable exercise of discretion. See section 240(c)(4)(A) of the Immigration

and Nationality Act, 8 U.S.C.A. § 1229a(c)(4)(A) (West 2005). In the context

of asylum, an applicant has the burden of demonstrating that he or she is a

refugee, within the meaning of the Act. See section 208(b)(1)(B)(i) of the Act,

8 U.S.C.A. § 1158(b)(1)(B)(i) (West 2005); see also Krastev v. INS, 292 F.3d

1268, 1270 (10th Cir. 2002). The Act defines a refugee as “any person who is

outside any country of such person’s nationality . . . who is unable or unwilling

to return to, and is unable or unwilling to avail himself or herself of the

1

Because the Immigration Judge did not articulate what statutorily enumerated ground the

past persecution finding was based on, this issue should be addressed on remand. See

generally Matter of S-P-, 21 I&N Dec. 486 (BIA 1996).

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protection of, that country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Section 101(a)(42)(A) of the Act, 8 U.S.C.

§ 1101(a)(42)(A) (2000). An applicant can establish refugee status by showing

that he or she either suffered past persecution or has a well-founded fear of

future persecution. See 8 C.F.R. §§ 1208.13(b)(1), (2) (2007); see also Niang

v. Gonzales, 422 F.3d 1187, 1194 (10th Cir. 2005).

The basis on which refugee status is established dictates the regulatory

framework applicable in determining overall asylum eligibility. Where the

Immigration Judge finds that the applicant is a refugee based on past

persecution, the applicant is presumed to have a well-founded fear of future

persecution on the basis of the original claim. 8 C.F.R. § 1208.13(b)(1). In that

case, the burden shifts to the DHS to establish by a preponderance of the

evidence either that there has been “a fundamental change in circumstances

such that the applicant no longer has a well-founded fear of persecution in [his

or her] country of nationality,” or that the applicant could avoid future

persecution “by relocating to another part of [his or her] country of

nationality . . . , and under all the circumstances, it would be reasonable to

expect the applicant to do so.” 8 C.F.R. §§ 1208.13(b)(1)(i)(A), (B), (ii); see

also Niang v. Gonzales, supra. If the DHS rebuts the presumption, the asylum

application will be denied unless the applicant demonstrates “compelling

reasons for being unwilling or unable to return” to his or her country of

nationality, 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)(A), (B); see

also Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004) (noting that this

approach is also known as “‘humanitarian’ asylum”).

An applicant may also establish refugee status by showing that he or she has

a well-founded fear of future persecution in the absence of, or unrelated to, any

past persecution. 8 C.F.R. §§ 1208.13(b)(1), (2); see also Tulengkey v.

Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005). For example, the applicant

could demonstrate a well-founded fear of persecution on a basis other than that

which gave rise to the past persecution. In such cases, with one exception, it

is the applicant who bears the burden of establishing by a preponderance of the

evidence that it would not be reasonable for him or her to internally relocate.

8 C.F.R. § 1208.13(b)(3)(i). The exception arises in cases in which the

persecutor is a government or is government sponsored, or the applicant has

established persecution in the past. In these cases it is presumed that internal

relocation would not be reasonable, unless the DHS establishes by a

preponderance of the evidence that, under all of the circumstances, it would be

reasonable for the applicant to relocate. 8 C.F.R. § 1208.13(b)(3)(ii). Factors

that may be relevant in determining the reasonableness of relocation include

whether the applicant would face other serious harm in the place of suggested

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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.

See 8 C.F.R. § 1208.13(b)(3).

Because the regulations set forth varying burdens of proof depending on

whether an applicant suffered past persecution, it is of paramount importance

that Immigration Judges make a specific finding that an applicant either has or

has not suffered past persecution. The instant case is illustrative of this

principle. Here, because the Immigration Judge made a specific finding of past

persecution, the respondent, by mandate of the regulations, was entitled to a

rebuttable presumption of future persecution. See 8 C.F.R. § 1208.13(b)(1).

However, the Immigration Judge did not explicitly apply the presumption and

failed to shift the burden of proof to the DHS to prove by a preponderance of

the evidence that the respondent can avoid future persecution by relocating to

another part of Kenya, and that it would be reasonable for him to do so.

Instead, the Immigration Judge concluded, without specific reference to the

voluminous background materials in the record, that the respondent could

safely relocate to a metropolitan area of Kenya.

The Board has limited fact-finding abilities in deciding appeals. See 8 C.F.R.

§ 1003.1(d)(3) (2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We will

therefore remand the record to the Immigration Judge for further proceedings

to determine whether the DHS carried its burden to establish that the respondent

can avoid future persecution by relocating within Kenya, and whether

relocation is reasonable under all of the relevant circumstances.2 On remand,

the DHS should be given the opportunity to develop the record on the issue of

internal relocation, as it has the burden of proof. In making the ultimate

determination on the matter, the Immigration Judge should specifically consider

all of the testimony and evidence contained in the record, including the

background information. Accordingly, the respondent’s appeal will be

sustained and the record will be remanded to the Immigration Judge for further

proceedings.

ORDER: The appeal is sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated,

and the record is remanded to the Immigration Judge for further proceedings

consistent with the foregoing opinion and for the entry of a new decision.

2

Inasmuch as we are remanding the record for further proceedings, we do not reach the

question whether the Immigration Judge’s factual findings were clearly erroneous, as has

been suggested by the respondent on appeal.

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