Mohamed Razik v. Holder ( 2011 )

FILED
NOT FOR PUBLICATION FEB 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMED ZULFIKAR MOHAMED No. 06-75630
RAZIK,
Agency No. A097-355-002
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 14, 2011
Pasadena, California
Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.
Petitioner Mohamed Zulfikar Mohamed Razik, a native and citizen of Sri
Lanka, petitions for review of the Board of Immigration Appeals’ ("BIA") order
dismissing his appeal from the immigration judge’s denial of asylum and
withholding of removal. Reviewing the BIA’s legal determinations de novo,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006), and the BIA’s
factual determinations for substantial evidence, Hamazaspyan v. Holder, 590 F.3d
744, 747 (9th Cir. 2009), we grant the petition.
When the relevant facts are not in dispute, we have jurisdiction to review the
BIA’s determination that a petitioner filed an untimely asylum application.
Khunaverdiants v. Mukasey, 548 F.3d 760, 765 (9th Cir. 2008). Here, the
historical facts are not in dispute because the BIA expressly found that Petitioner
had successfully relocated within Sri Lanka "until he departed the country in
January 2003." The asylum application was filed in October 2003. Having found
that Petitioner departed Sri Lanka in January 2003 and having received his asylum
application in October 2003, the BIA was required under Khunaverdiants to
conclude as a matter of law that the asylum application was filed within one year
of Petitioner’s arrival in the United States. We therefore remand Petitioner’s
asylum claim to the BIA for a determination on the merits.
Moreover, as the government concedes, the BIA legally erred in analyzing
Petitioner’s withholding of removal claim. Because Petitioner demonstrated past
persecution, he is entitled to a presumption "that [his] life or freedom would be
threatened in the future in the country of removal." 8 C.F.R. § 1208.16(b)(1)(i);
see Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010). The BIA expressly
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found, relying on his testimony, that Petitioner "established past persecution on
account of a protected ground." But the BIA then improperly placed the burden of
proof as to future persecution on Petitioner.
Additionally, the BIA legally erred by failing to analyze whether the
proposed relocation within Sri Lanka was reasonable, as guided by the
considerations listed in 8 C.F.R. § 1208.16(b)(3). See Afriyie v. Holder, 613 F.3d
924, 936–37 (9th Cir. 2010) (remanding because "[t]he BIA failed to discuss the
reasonableness factors set forth in [the regulations] or discuss how the government
met its burden of showing that relocation was reasonable"). Because of the BIA’s
legal errors, we remand Petitioner’s withholding of removal claim for
reconsideration.
In view of these errors concerning asylum and withholding, the BIA’s
analysis of the CAT claim may have been affected as well. We therefore remand
the entire case for reconsideration.
Petition GRANTED. REMANDED.
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