Pereira-Borges v. Holder

FILED
NOT FOR PUBLICATION OCT 17 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

WAUSIMAN PEREIRA-BORGES and No. 07-74336
LUCIANA LIMA-DA SILVA,
Agency Nos. A078-265-077
Petitioners, A078-265-081

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted October 12, 2011 **
San Francisco, California

Before: THOMAS and MURGUIA, Circuit Judges, and ALBRITTON, Senior
District Judge.***

*
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).
***
The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for Middle Alabama, Montgomery, sitting by designation.
 Wausiman Pereira-Borges, a native and citizen of Brazil, petitions for review

of the BIA’s denial of his asylum application and final order of removal. Because

the parties are familiar with the history of the case, we need not recount it here.

We grant the petition for review and remand.

An asylum applicant is not entitled to relief if he can avoid future

persecution by relocating to another part of his country of nationality. Afriyie v.

Holder, 613 F.3d 924, 934 (9th Cir. 2010). The government has the burden to

prove that Pereira-Borges can reasonably relocate within Brazil because the BIA

determined that Pereira-Borges had demonstrated past persecution and was

presumed to have a well-founded fear of future persecution. See Melkonian v.

Ashcroft, 320 F.3d 1061, 1070 (9th Cir. 2003). Additionally, the BIA must

presume that Pereira-Borges faces a nationwide threat of persecution and that

internal relocation is unreasonable because he was persecuted by police officers.

Id.

In this case, the BIA determined that Pereira-Borges could reasonably

relocate within Brazil. After it issued its order, we issued our decision in Afriyie,

which clarified relocation analysis. Under Afriyie:

[A]djudicators should consider, but are not limited to considering,
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. These factors may, or may not, be
relevant, depending on all the circumstances of the case, and are not
necessarily determinative of whether it would be reasonable for the
applicant to relocate.

613 F.3d at 934 (citing 8 C.F.R. § 1208.13(b)(3)). The BIA must “evaluate[] the

relocation issue in accord with the proper burden of proof” and it must “consider[]

the requisite regulatory factors pertinent to the reasonableness analysis” outlined in

8 C.F.R. § 1208.13(b)(3). Id. at 935.

While the BIA cited 8 C.F.R. § 1208.13(b) in Pereira-Borges’ case, it did not

explicitly consider the regulatory factors that it was “bound to take into account.”

Id. (internal quotation marks omitted). Under Afriyie, if it is unclear whether the

BIA considered the reasonableness factors, the case must be “remand[ed] for

clarification.” Id. Even if the BIA relied on the IJ’s findings here, it is also unclear

whether the IJ explicitly considered the 8 C.F.R. § 1208.13(b)(3) factors in his

analysis. See Boer-Sedano v. Gonzalez, 418 F.3d 1082, 1090 (9th Cir. 2005)

(“[T]he relevant regulation requires the IJ to consider the [8 C.F.R. §

1208.13(b)(3)] factors, to decide whether any of them made relocation

unreasonable.” (emphasis added)).

Therefore, in light of our subsequent decision in Afriyie, we grant the

petition for review and remand the case to the BIA to (1) reevaluate the relocation

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evidence in light of the government’s burden of proof with the presumption that

internal relocation is unreasonable and (2) to explicitly determine whether

relocation would be reasonable under the factors described in 8 C.F.R.

§ 1208.13(b)(3).

PETITION FOR REVIEW GRANTED; REMANDED

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