Das, Jude Stephen v. Gonzales, Alberto R. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 22, 2007
Decided March 13, 2007
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-2692
JUDE STEPHEN DAS, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A75-825-269
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Jude Stephen Das, a citizen of India, petitions for review of the Board of
Immigration Appeals’ order affirming the Immigration Judge’s decision to deny his
asylum claim. The BIA determined that, even though Das successfully established
past persecution on account of his Christianity, he did not have a well-founded fear
of future persecution because the Department of Homeland Security demonstrated
that he could reasonably relocate within India. Because the evidence that the BIA
relied on does not rule out the possibility that Das would be at risk throughout
India, we vacate and remand.
No. 06-2692 Page 2
Das is from Hyderabad in south-central India, where he lived in a residential
colony associated with the Catholic church that he attended. Das was employed by
his church to clean the premises and help the priest during mass. In the early
1990s, Das saw some Hindus selling drugs and alcohol on the church grounds. He
informed the police, who took no action. In 1994, when the activity continued, Das
told the people to stop. The Hindus attacked him with large sticks and threatened
him with knives and swords. A couple months later they went to his house and
again beat him as well as his brothers and disabled father. This time the police
responded, but they arrested Das along with the Hindu attackers. The attackers
were promptly released, but Das was held for two days and beaten by the police
with a weapon he described as a “tire tube.” He was attacked twice more by Hindus
in 1995 with stones, knives, iron pokers, and “knuckle busters.” The attacks
prompted Das to leave for the United States in 1996.
Das applied for asylum, and the IJ denied his application on the ground that
he had not shown past persecution. This decision was reversed by the BIA, which
accepted that Das had been imprisoned briefly and attacked several times including
while he was imprisoned. The BIA also found that Das had suffered serious
injuries, and expressly determined that he was persecuted in the past on account of
his Christianity. The BIA remanded the case to give the DHS a chance to rebut the
presumption that Das had a well-founded fear of future persecution by showing that
country conditions had changed or that Das could avoid future persecution by
relocating to another part of India.
At the hearing on remand in 2005, the DHS declined to question Das and
submitted no evidence other than the 2003 State Department Country Report on
Human Rights Practices and the 2004 International Religious Freedom Report,
both of which describe violent attacks targeted at Indian Christians.
The IJ determined that the DHS failed to show changed country conditions
such that Das no longer had a well-founded fear of persecution, but successfully
showed that Das could reasonably relocate within India to avoid persecution. The
IJ based his conclusion on the country reports, characterizing them as showing that
India was a secular state and that violence against Christians was “localized.”
These reports described “sporadic violence in some communities,” the IJ observed,
but overall there were “generally peaceful and tolerant conditions in most of the
country.” He went on to say that his conclusion was bolstered by Das’s inability to
testify to any specific attacks on Christians in India since his last hearing five years
earlier. Das appealed, and the BIA affirmed, observing that the country reports
showed that India was secular and adopting the IJ’s finding that violence against
Christians was “localized.”
On appeal Das’s strongest argument is that the country reports submitted by
the DHS and relied on by the BIA do not support the BIA’s conclusion that he could
No. 06-2692 Page 3
avoid persecution by relocating within India. Das points out that the country
reports do not characterize violence against Christians as localized. On the
contrary, they detailed attacks against Christians in at least ten Indian states,
spread out over all areas of the country.
Because the BIA decided that Das established past persecution, he is entitled
to the presumption that he has a well-founded fear of future persecution. See 8
C.F.R. § 208.13(b)(1); Sosnovskaia v. Gonzales, 421 F.3d 589, 593 (7th Cir. 2005).
Therefore the DHS had the burden of rebutting the presumption by showing that he
could avoid future persecution by relocating and that it would be reasonable for him
to do so. See 8 C.F.R. §§ 208.13(b)(1)(i)(B), (b)(1)(ii).
We agree with Das that neither the 2003 State Department Report nor the
2004 International Religious Freedom Report reflects that violence against
Christians is “localized.” Das’s characterization of the reports as showing violent
incidents against Christians in many areas of the country is also correct. Attacks
by Hindus mentioned in the reports include an incident in central India where a
priest was beaten unconscious, the burning of a church in east India, violence
against students and staff at a Bible school in south India, and an assault against a
Christian missionary, also in south India. The Religious Freedom Report does note
that three states in India have Christian majorities, but these states are very small,
and the DHS did not provide any information about whether it would be reasonable
for Das to relocate there. For example it did not discuss whether he speaks the
local language or whether the economy in these small states is strong enough for
him to find work there. Given the fact that the country reports submitted by the
DHS show that violence is occurring in many areas of India, it is unclear how these
reports successfully rebut the presumption that Das has a well-founded fear of
persecution, especially as the BIA does not cite a particular section of the reports to
support its conclusion that the attacks are “localized.”
The DHS does not illuminate this point, choosing instead to rely generally on
sections of the reports that are irrelevant to Das’s case. For example, the DHS
argues that the reports corroborate the prospect of internal relocation because the
Indian government is secular and has no official policy prohibiting freedom of
religion. But this argument does not refute Das’s claim that he was attacked by
private groups of Hindu extremists whom the government cannot or will not
control, nor does it show these groups do not exist countrywide. The DHS also
points to references in the reports confirming that attacks against Christians have
decreased. But a general decrease in overall attacks does not rule out the
possibility that the violence has spilled over into all parts of the country.
The reports may suggest that the situation is not so bad for Christians as it
used to be but they do not show that violence is confined to particular areas of
India. Indeed, they show that Christians continue to be targeted for violence in
No. 06-2692 Page 4
many regions, and thus tend to support Das’s position that relocation is not a
reasonable option on the basis of this record. See Kaiser v. Ashcroft, 390 F.3d 653,
660 (9th Cir. 2004) (Pakistani applicants who received threats in two different
Pakistani cities located on opposite sides of the country could not relocate
internally). Given the serious attacks that Das has suffered in the past and the fact
that it was the DHS’s burden to rebut the presumption that Das has a well-founded
fear of persecution, the mixed information in the country reports is not enough to
support the BIA’s finding that Das could safely relocate. See Arboleda v. U.S.
Attorney General, 434 F.3d 1220, 1224-25 (11th Cir. 2006) (per curiam) (DHS did
not meet its burden of showing the reasonableness of internal relocation when it
relied solely on contradictory information in country reports and State Department
Asylum Profile that partly suggested internal relocation was not an option); Bace v.
Ashcroft, 352 F.3d 1133, 1139-41 (7th Cir. 2005) (DHS did not meet its burden of
showing internal relocation was reasonable for Albanian applicants where mixed
information in country report partly supported applicants’ claims).
Das also argues that the BIA erred by failing to consider whether it was
reasonable as well as safe for him to relocate. In particular, he contends that the
BIA ignored evidence that he would have difficulty finding a job and that he had
limited family ties outside Hyderabad.
When determining whether internal relocation is a possibility, the BIA and
the IJ must consider not only whether the applicant can avoid persecution by
relocating, but also whether it would be reasonable for him to do so. 8 C.F.R.
§ 208.13(b)(1)(i)(B); Arboleda, 434 F.3d at 1226. But here, the BIA did not discuss
any of the factors that are part of the reasonableness analysis such as “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. § 208.13(b)(3); see also Bace 352 F.3d
at 1140. The IJ, in turn, gave them only cursory consideration. If on remand, the
IJ ultimately decides that the DHS has met its burden of showing Das can relocate
safely, it must provide a fuller discussion of these factors than it has done up to this
point.
For these reasons, we VACATE the order of the BIA and REMAND the matter
for further proceedings.