Ballout Law wins major victory in an En Banc 9th circuit case

Ballout Law successfully argued before an en banc panel of the 9th Circuit Court of Appeals to overturn precedent on the burden of proof for internal relocation in immigration cases. The ruling clarified that neither the petitioner nor the government bears the burden of proof, and remanded the case for reconsideration, marking a significant development in immigration law.

The en banc court overruled Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral of removal under the Convention Against Torture. The en banc court first determined that the petition was not moot, notwithstanding petitioner’s removal after filing his petition for review, because there was solid evidence that petitioner is currently present in the United States. The en banc court held that Hasan and Lemus-Galvan are inconsistent with 8 C.F.R. §§ 1208.16(c)(2) and (3) because they improperly place the burden on the petitioner to prove that internal relocation is impossible. The en banc court also concluded that Singh departs from § 1208.16(c)(3) because the regulation does not specify that the inability to relocate safely is an element of claim for deferral of removal for which a petitioner bears the burden of proof, and that Perez Ramirez improperly applied to the CAT context the burden shifting scheme for internal relocation applicable to asylum claims.

The en banc court held that neither the petitioner nor the government bear the burden of proof as to internal relocation, rather such evidence, if relevant, must be considered in assessing whether it is more likely than not that the petitioner would be tortured if removed. The court remanded to the Board for reconsideration of petitioner’s eligibility for deferral of removal. Dissenting, Judge Gould, joined by Judges Clifton, Ikuta, and N.R. Smith, would dismiss the case as moot because petitioner has not been in touch with his attorney, and it is not clear that petitioner is currently in the United States. Dissenting, Judge M. Smith, joined by Judge Clifton, also believes that the case is moot, but wrote separately to state that even if he agreed with the majority that Maldonado’s petition for review continues to present a justiciable controversy, which he does not, he would affirm the denial of deferral of removal because the Board cited other appropriate factors in denying relief. He agrees with the majority that Perez-Ramirez must be overruled, and that the Board may have interpreted language in Lemus-Galvan as requiring a petitioner to establish that internal relocation is impossible, but he does not agree that Hasan and Singh, and the substance of Lemus-Glavan, conflict with the regulations.

To learn more on this case please search: Maldonado v. Lynch, 786 F. 3d 1155 (9th Cir. 2015) (en banc) at https://www.ca9.uscourts.gov/

Case Link: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/27/09-71491.pdf