NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMRIT BASTOLA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-388

Agency No.

A209-876-538

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted July 14, 2023**

Pasadena, California

Before: SANCHEZ and MENDOZA, Circuit Judges, and JACKSON,***

District Judge.

Amrit Bastola, a native and citizen of Nepal, petitions for review of the 

Board of Immigration Appeals’s (“BIA”) decision denying his motion to reopen 

proceedings based on changed country conditions in Nepal. We have 

* This disposition is not appropriate for publication and is not 

precedent except as provided by Ninth Circuit Rule 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 Brian A. Jackson, United States District Judge for 

the Middle District of Louisiana, sitting by designation.

FILED

JUL 24 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-388

jurisdiction under 8 U.S.C. § 1252 and review the denial of a motion to reopen

for abuse of discretion. Velasquez-Escovar v. Holder, 768 F.3d 1000, 1003 (9th 

Cir. 2014). We grant the petition and remand for further proceedings because 

the BIA applied the wrong legal standard when it determined that Bastola is not 

entitled to relief.

The BIA can deny a motion to reopen for “failure to establish a prima 

facie case for the relief sought, failure to introduce previously unavailable, 

material evidence, and a determination that even if these requirements were 

satisfied, the movant would not be entitled to the discretionary grant of relief 

which he sought.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) 

(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). Here, the BIA assumed for 

purposes of its order that Bastola carried his burden of showing a “material 

change in country conditions”—that is, Bastola’s persecutors (the “Maoists”) 

now govern Nepal. Nevertheless, the BIA determined that Bastola failed to 

establish a prima facie basis for relief because he did “not argue or otherwise 

demonstrate that the change in country conditions makes internal relocation 

unreasonable.”

The error is this: By assuming the existence of the changed conditions 

Bastola alleges—i.e., that the Maoists now control the Nepali 

government—Bastola was entitled to a presumption “that internal relocation 

would not be reasonable,” thereby shifting the burden to the Department of 

Homeland Security (“DHS”) to “establish[] by a preponderance of the evidence 
3 22-388

that, under all the circumstances, it would be reasonable for [Bastola] to 

relocate.” 8 C.F.R. § 1208.13(b)(3)(ii); see, e.g., Fakhry v. Mukasey, 524 F.3d 

1057, 1065 (9th Cir. 2008) (granting petition and remanding for additional 

proceedings where the IJ failed to apply “the presumption that the threat of 

persecution exists nationwide and that relocation is therefore unreasonable”). 

The BIA’s order does not account for this presumption in Bastola’s favor, or the 

shifted burden to DHS. Indeed, the BIA denied Bastola relief without requiring 

a response from DHS.

The BIA’s failure to give Bastola the benefit of the presumption amounts 

to a failure to apply the correct legal standard, and is therefore an abuse of 

discretion. See Velasquez-Escovar, 768 F.3d at 1003 (quoting Lainez–Ortiz v. 

INS, 96 F.3d 393, 395 (9th Cir. 1996)) (“The BIA abuses its discretion when it 

acts ‘arbitrarily, irrationally, or contrary to the law.’”). Accordingly, we grant 

the petition for review, and remand for the BIA to apply the proper presumption 

when assessing internal relocation. 

PETITION GRANTED and REMANDED for further proceedings.