FILED
NOT FOR PUBLICATION DEC 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTONIO XAVIER ALMEIDA, No. 07-73210
Petitioner, Agency No. A98-829-169
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 11, 2011
San Francisco, California
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and MILLS, Senior
District Judge.**
Antonio Xavier Almeida, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum, his request
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
for withholding of removal, and his request for relief under the Convention Against
Torture (“CAT”). The BIA denied relief, concluding that (1) there was no
evidence that Almeida was persecuted on account of a statutorily protected ground
and (2) in the alternative, Almeida could safely and reasonably relocate within
India.
Almeida filed his application after May 11, 2005, so we apply the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005). We have jurisdiction under
8 U.S.C. § 1252, and we grant the petition for review.
I.
Where the BIA conducts de novo review and issues its own decision, we
review the BIA’s decision, except to the extent that the IJ’s decision is expressly
adopted by the BIA. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). “Where
the BIA incorporates the IJ’s decision, we review the IJ’s decision.” Gui v. INS,
280 F.3d 1217, 1225 (9th Cir. 2002) (citation omitted).
We review the IJ and BIA’s factual findings in connection with a denial of
asylum, withholding of removal, or CAT relief for substantial evidence. Li v.
Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). We explained in Li that a ruling
denying asylum “can be reversed only if the evidence presented was such that a
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reasonable fact finder would have to conclude that the requisite fear of persecution
existed.” Id.
When the IJ does not explicitly make an adverse credibility determination, a
petitioner has the benefit of a rebuttable presumption of credibility on appeal. See
8 U.S.C. § 1158(b)(1)(iii).
II.
In order to be eligible for asylum, an applicant must demonstrate that he or
she has a well-founded fear of future persecution. A well-founded fear of future
persecution is presumed if the applicant has suffered past persecution. See 8
C.F.R. § 1208.13(b)(1).
For applicants to establish past persecution, they must show that: “(1) their
experiences rise to the level of persecution; (2) the persecution was on account of
one or more of the protected grounds; and (3) the persecution was committed either
by the government or by forces that the government was unwilling or unable to
control.” Truong v. Holder, 613 F.3d 938, 941 (9th Cir. 2010).
Under the Real ID Act, a protected ground must represent “one central
reason” for the asylum applicant’s persecution. See Real ID Act of 2005, 119 Stat.
302, 303; Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009). We held in
Parussimova that the applicant “need not prove that a protected ground was the
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only central reason for the persecution,” nor that “a protected ground was the most
important reason why the persecution occurred.” 555 F.3d at 740. We noted that
the REAL ID Act does not require that the protected ground “account for 51% of
the persecutor’s motivation.” Id.
On this record, we conclude that Almeida’s religion was one of the central
reasons for his arrests, and for the attacks by the police and members of Shiv Sena.
A substantial portion of the abuse Almeida received was directly related to his
Roman Catholic faith and his involvement in Church activities. Religion was a
central reason for the abuse Almeida received in connection with his opposition to
the metal recycling plant. The owner of the plant was Hindu, and the plant was
located adjacent to a Catholic church and school. The Church organized hunger
strikes to protest the plant. The plant owner used Hindu fundamentalists as
enforcers against the opposition. The Shiv Senda enforcers warned Almeida and
other participants to stop their religious activities. Religion was one of the core
issues in this dispute, not merely a tangential element. The record compels the
conclusion that religion was one central reason for the actions taken against
Almeida.
However, because neither the IJ nor the BIA determined whether the
cumulative harm suffered by Almeida rose to the level of persecution, we remand
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to the BIA for a determination of that issue in the first instance. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). Even though remanding for such
a determination, we note that the record contains “credible evidence that [Almeida]
was detained, beaten, and threatened on numerous occasions.” Baghdasaryan v.
Holder, 592 F.3d 1018, 1026 n.8 (9th Cir. 2010).
III.
Alternatively, assuming that Almeida established past persecution, the BIA
nevertheless determined that Almeida did not demonstrate a well-founded fear of
future persecution, because Almeida could relocate within India to avoid
persecution. The BIA found that the government rebutted the presumption of a
well-founded fear of persecution by showing that Almeida could safely relocate
within India and that it would be reasonable for him to do so. The BIA erred in
determining that the government met its burden of proving that Almeida could
reasonably relocate within India. Where the persecutor is a government or is
government-sponsored, it is presumed that internal relocation within the
applicant’s native country would not be reasonable, unless the government
establishes by a preponderance of the evidence that it would be reasonable to
relocate within his native country. See 8 C.F.R. § 1208.13(b)(3). “The
reasonableness of internal relocation is determined by considering whether the
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applicant would face other serious harm in the place of suggested relocation; any
ongoing civil strife; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as age, gender,
health, and social and family ties.” Knezevic v. Ashcroft, 367 F.3d 1206, 1214 (9th
Cir. 2004) (citing 8 C.F.R. § 1208.13(b)(3)).
Here, the record does not support the BIA’s and IJ’s conclusion that the
government met its burden of proof. The IJ did not provide any individualized
analysis in finding that relocation was reasonable. See Knezevic v. Ashcroft, 367
F.3d 1206, 1214 (9th Cir. 2004) (“The IJ’s determination that it would be
reasonable to require [petitioners] to relocate internally . . . was deficient[,]
. . . [because] the IJ failed to take into account the numerous factors for
determining reasonableness outlined in 8 C.F.R. § 1208.13(b)(3).”); Melkonian v.
Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003) (“It is not enough . . . for the IJ to
find that the applicants could escape persecution by relocating internally. It must
be reasonable to expect them to do so.”). Instead, the IJ merely referenced general
country conditions throughout India and noted that Almeida spoke English and
Hindi and had traveled throughout the world. These comments fail to analyze the
reasonableness of relocating in India as set forth in 8 C.F.R. § 1208.13(b)(3).
PETITION FOR REVIEW GRANTED; REMANDED.
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