FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VIRBHAN DAGAR; et al., No. 08-70677
Petitioners, Agency Nos. A099-340-270
A099-340-271
v. A099-340-272
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Virbhan Dagar and his family, natives and citizens of India, petition for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeal from an immigration judge’s (“IJ”) decision denying their application for
asylum, withholding of removal, and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence factual findings. Mashiri v.Ashcroft, 383 F.3d 1112, 1118
(9th Cir. 2004). We dismiss in part and grant in part the petition for review, and
we remand.
We lack jurisdiction to consider petitioners’ claim for humanitarian asylum
because they did not raise this issue to the BIA. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented below).
Because the agency found Dagar established past persecution, the
government had the burden to establish by a preponderance of the evidence that
petitioners could avoid future persecution by relocating within India and that,
under all the circumstances, it would be reasonable to expect them to do so. See 8
C.F.R. §§ 1208.13(b)(1)(ii), 1208.16(b)(1)(ii); Melkonian v. Ashcroft, 320 F.3d
1061, 1070 (9th Cir. 2003) (where an applicant shows past persecution, the INS
has the burden to demonstrate by a preponderance of the evidence that the
applicant “can reasonably relocate internally to an area of safety”). Dagar testified
the police sought him out and mistreated him for years after his whistle-blowing
activities and work-reinstatement efforts, did so despite multiple changes of
residence and trips abroad, detained and seriously mistreated his father-in-law
when they could not find him, and continued to inquire about him. In addition,
2 08-70677
petitioners indicated their ties to the United States through their two U.S. citizen
children. Substantial evidence does not support the agency’s conclusion that
Dagar’s fear of future persecution was rebutted by evidence he could relocate
internally. See Mashiri, 383 F.3d at 1122-23. Accordingly, we grant the petition
for review. Because Dagar is eligible for asylum and entitled to withholding of
removal, we remand this case so that the Attorney General may exercise his
discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum and so that the
BIA can enter the appropriate order for withholding of removal. See Zhou v.
Gonzales, 437 F.3d 860, 871 (9th Cir. 2006) (citation omitted). In light of our
conclusions, we need not reach petitioners’ contention regarding CAT relief.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
3 08-70677