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BOSEL v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-03-25No. 19-172

Summary

Holding. The petition for review is denied, and all pending motions and applications are denied with stays vacated.

Hom Prasad Bosel, a Nepali citizen, petitioned for review of decisions denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The immigration judge and Board of Immigration Appeals both rejected his claims, finding that he could reasonably relocate to another part of Nepal to avoid persecution. The court reviewed the agency's factual findings under the substantial evidence standard and legal conclusions de novo.

When an applicant demonstrates past persecution, a presumption of well-founded fear of future persecution arises. However, the government may rebut this presumption by showing either that circumstances have fundamentally changed or that the applicant could reasonably relocate within their home country to avoid future harm. The court upheld the agencies' relocation determination, noting that Bosel had successfully relocated to different regions of Nepal in the past and remained safe during those periods, including time spent in Kathmandu despite alleged knowledge of his location by persecutors.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether past persecution triggers a rebuttable presumption of future persecution in asylum cases
  • Whether relocation to another region of the applicant's home country is a reasonable alternative to persecution
  • Relevance of the applicant's prior successful relocation history to future relocation feasibility

Procedural posture

The court reviewed the Board of Immigration Appeals' affirmance of the immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Petitioner Hom Prasad Bosel, a native and citizen of Nepal, seeks review of a December 18, 2018 decision of the BIA affirming a November 22, 2017 decision of an Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hom Prasad Bosel, No. AXXX XX4 579 (B.I.A. Dec. 18, 2018), affg No. A XXX XX4 579 (Immig. Ct. N.Y.C. Nov. 22, 2017). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the IJs decision as supplemented by the BIA under the substantial evidence standard, and we review questions of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Paloka v. Holder, 762 F.3d 191, 195 (2d Cir. 2014).

Where, as here, the agency found past persecution, an asylum applicant has a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1).

The government may rebut that presumption if it shows, 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)–(ii). Because we conclude that substantial evidence supports the agencys relocation finding, we do not reach its changed circumstances determination. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

The record supports the agencys conclusion that Bosel could reasonably relocate within Nepal to avoid future persecution. See 8 C.F.R. § 1208.13(b)(1)(i)(B); Singh v. BIA, 435 F.3d 216, 219 (2d Cir. 2006) (“Asylum in the United States is not available to obviate re-location to sanctuary in ones own country.”). In determining the reasonableness of relocation, the agency may consider, among other factors, “whether the applicant would face other serious harm in the place of suggested 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.” 8 C.F.R. § 1208.13(b)(3). The agency considered Bosels ability to relocate, noting that he had relocated and remained unharmed for two extended periods in different parts of Nepal. Bosel relocated to Parbat in August 2005 and remained unharmed but politically active until returning to his hometown in June 2007. And he lived unharmed in Kathmandu for 20 months before leaving for the United States despite allegations that the Maoists knew his location. Given that Bosel previously successfully avoided persecution by relocating within Nepal, the agency reasonably concluded that the government rebutted the presumption of future persecution. See 8 C.F.R. § 1208.13(b)(3); Singh, 435 F.3d at 219. This conclusion is dispositive of asylum, withholding of removal, and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119–20 (2d Cir. 2010).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.

FOOTNOTES

FOOTNOTE

.   All citations are to the version of the regulations in effect at the time of the IJs decision.