NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEEPAK LAMA, 

Petitioner, 

 v. 

ROBERT M. WILKINSON, Acting 

Attorney General, 

Respondent.

No. 19-71375 

Agency No. A202-130-884 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 12, 2021

San Francisco, California

Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District 

Judge.

Deepak Lama, a citizen of Nepal, petitions for review of a decision by the 

Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Gary Feinerman, United States District Judge for the 

Northern District of Illinois, sitting by designation.

FILED

FEB 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

(IJ) order denying his claims for asylum and withholding of removal.

1

 We have 

jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand. 

The IJ found that Lama had suffered past persecution on account of his 

political activity and was entitled to a presumption of a well-founded fear of future 

persecution. See 8 C.F.R. § 1208.13(b)(1). But, the IJ also found that the 

government had rebutted the presumption, and the BIA then dismissed Lama’s

appeal on the sole basis that Lama could safely and reasonably relocate within Nepal,

to Chitwan, where he previously resided for five years without incident. Our review 

is limited to the ground on which the BIA relied. Qiu v. Barr, 944 F.3d 837, 842 

(9th Cir. 2019). 

When the presumption of a well-founded fear of future persecution applies, 

the government bears the “burden of showing that relocation is both safe and 

reasonable under all the circumstances” by a preponderance of the evidence. Afriyie 

v. Holder, 613 F.3d 924, 934 & n.8 (9th Cir. 2010), overruled on other grounds by

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017). “Relocation 

analysis consists of two steps: (1) ‘whether an applicant could relocate safely,’ and 

(2) ‘whether it would be reasonable to require the applicant to do so.’” Singh v. 

Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (quoting Afriyie, 613 F.3d at 934). We 

1 The BIA found that Lama forfeited his claim under the Convention Against 

Torture. Lama does not challenge that ruling in this court.
3 

conclude that the BIA’s limited relocation analysis does not satisfy the applicable 

legal requirements.

First, the agency “failed to take into account the numerous factors for 

determining reasonableness outlined in 8 C.F.R. § 1208.13(b)(3).” Knezevic v. 

Ashcroft, 367 F.3d 1206, 1215 (9th Cir. 2004). Relying on Lama’s stay in Chitwan 

between 2003 and 2008, the agency provided no analysis of whether it would be 

reasonable for Lama to relocate there at the time of his hearing, in 2017. Lama 

demonstrated that he experienced persecution in Nepal both in his hometown and 

later in Kathmandu, and that this persecution took place both before and after he 

lived in Chitwan. While his time in Chitwan appears to have been without incident, 

he last lived there many years ago. The government presented no evidence that 

Lama could safely and reasonably return there now, considering both the current 

political situation in Chitwan and Lama’s personal circumstances. See Singh, 914 

F.3d at 661. 

Second, the BIA’s analysis rests on an apparent misapprehension of the 

record. The BIA stated that “[t]he record contains no evidence that it would no 

longer be safe or reasonable for [Lama] to once again return to [Chitwan] where he 

had previously voluntarily relocated and resided for approximately 5 years without 

incident.” (Emphasis added.) But the record contains a 2016 letter written to Lama 

from his uncle, with whom he lived in Chitwan, indicating that Lama would not be 
4 

safe there. The BIA did not consider this evidence. And to the extent the BIA 

“erroneously presumed that relocation was reasonable and improperly assigned the 

burden of proof to [Lama] to show otherwise,” Afriyie, 613 F.3d at 935, it erred in 

that respect as well. See also 8 C.F.R. § 1208.13(b)(3)(ii) (burden of proof). 

Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005), does not support the 

government’s position that because Lama once resided in Chitwan without incident, 

“it is axiomatic that he can do so again.” In Gomes, unlike this case, the petitioners 

had not shown past persecution and thus bore the burden to show that relocation was 

unreasonable. Id. at 1266–67 & 1266 n.1. In addition, unlike Lama, it appears that 

the petitioners in Gomes had safely resided in the area in question immediately prior 

to entering the United States. See id. at 1267. Gomes also did not involve the BIA 

failing to address evidence (here the letter from Lama’s uncle) indicating that 

relocation to the designated area could be unsafe.

For the foregoing reasons, we grant the petition and remand this matter to the 

BIA for further proceedings consistent with this decision. Any relocation analysis 

must comport with the governing regulations and this court’s precedents. See 8 

C.F.R. § 1208.13(b)(3); Singh, 914 F.3d at 659–61. We also dismiss as moot the 

portion of Lama’s petition challenging the BIA’s denial of his motion to remand. 

PETITION FOR REVIEW GRANTED IN PART AND DISMISSED IN 

PART; REMANDED.