Bastola v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 24, 2023
• Docket: 22-388
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 22-388 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.

3 22-388