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The Board of Immigration Appeals sustained the removal order and the case was brought to the Ninth Circuit by my former office. I completed all the briefing, raising the legal issue that the IJ impermissibly held appellant to an incorrect standard, namely that under Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), that a CAT petitioner must establish that internal relocation is “impossible.” I argued that just as in this case, where the petitioner has established past torture, the burden should shift to the government to prove that relocation is possible, pursuant to Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011).
There is seemingly a split of authorities in the Ninth Circuit on this questions and this case is being considered for an en banc decision on what is the correct procedure. My contention is that Perez-Ramirez should be the standard.
“As we have previously acknowledged, “it will rarely be safe to remove a potential torture victim on the assumption that torture will be averted simply by relocating him to another part of the country.” Nuru v. Gonzales, 404 F.3d 1207, 1219 (9th Cir.2005). Thus, when the past-persecution is shown, the government bears the burden to show by a preponderance of the evidence that the petitioner can move elsewhere within the country. Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003) (“[B]ecause a presumption of well-founded fear arises upon a showing of past persecution, the burden is on the INS to demonstrate by a preponderance of the evidence, once such a showing is made, that the applicant can relocate internally to an area of safety.”). Additionally, when petitioner “has established a well-founded fear of future persecution at the hands of the government, a rebuttable presumption arises that the threat exists nationwide and therefore that internal relocation is unreasonable.” Id.