Bastola v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMRIT BASTOLA, No. 22-388
Agency No.
Petitioner, A209-876-538
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2023**
Pasadena, California
Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,***
District Judge.
Amrit Bastola, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’s (“BIA”) decision denying his motion to reopen
proceedings based on changed country conditions in Nepal. We have
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Brian A. Jackson, United States District Judge for
the Middle District of Louisiana, sitting by designation.
jurisdiction under 8 U.S.C. § 1252 and review the denial of a motion to reopen
for abuse of discretion. Velasquez-Escovar v. Holder, 768 F.3d 1000, 1003 (9th
Cir. 2014). We grant the petition and remand for further proceedings because
the BIA applied the wrong legal standard when it determined that Bastola is not
entitled to relief.
The BIA can deny a motion to reopen for “failure to establish a prima
facie case for the relief sought, failure to introduce previously unavailable,
material evidence, and a determination that even if these requirements were
satisfied, the movant would not be entitled to the discretionary grant of relief
which he sought.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010)
(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). Here, the BIA assumed for
purposes of its order that Bastola carried his burden of showing a “material
change in country conditions”—that is, Bastola’s persecutors (the “Maoists”)
now govern Nepal. Nevertheless, the BIA determined that Bastola failed to
establish a prima facie basis for relief because he did “not argue or otherwise
demonstrate that the change in country conditions makes internal relocation
unreasonable.”
The error is this: By assuming the existence of the changed conditions
Bastola alleges—i.e., that the Maoists now control the Nepali
government—Bastola was entitled to a presumption “that internal relocation
would not be reasonable,” thereby shifting the burden to the Department of
Homeland Security (“DHS”) to “establish[] by a preponderance of the evidence
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that, under all the circumstances, it would be reasonable for [Bastola] to
relocate.” 8 C.F.R. § 1208.13(b)(3)(ii); see, e.g., Fakhry v. Mukasey, 524 F.3d
1057, 1065 (9th Cir. 2008) (granting petition and remanding for additional
proceedings where the IJ failed to apply “the presumption that the threat of
persecution exists nationwide and that relocation is therefore unreasonable”).
The BIA’s order does not account for this presumption in Bastola’s favor, or the
shifted burden to DHS. Indeed, the BIA denied Bastola relief without requiring
a response from DHS.
The BIA’s failure to give Bastola the benefit of the presumption amounts
to a failure to apply the correct legal standard, and is therefore an abuse of
discretion. See Velasquez-Escovar, 768 F.3d at 1003 (quoting Lainez–Ortiz v.
INS, 96 F.3d 393, 395 (9th Cir. 1996)) (“The BIA abuses its discretion when it
acts ‘arbitrarily, irrationally, or contrary to the law.’”). Accordingly, we grant
the petition for review, and remand for the BIA to apply the proper presumption
when assessing internal relocation.
PETITION GRANTED and REMANDED for further proceedings.
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