Sohan Lal v. MERRICK B. GARLAND, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOHAN LAL,
Petitioner,
v.
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
No. 17-71088
Agency No. A205-929-441
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 17, 2022
San Francisco, California
Before: S.R. THOMAS and M. SMITH, Circuit Judges, and WU,** District Judge.
Sohan Lal, a native and citizen of India, petitions for review of the Board of
Immigrations Appeals’ (“BIA”) dismissal of his appeal from an Immigration
Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
FILED
DEC 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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pursuant to 8 U.S.C. § 1252. We review questions of law de novo and factual
determinations for substantial evidence. Amaya v. Garland, 15 F.4th 976, 986 (9th
Cir. 2021).
In his immigration proceedings, Lal – a member of the minority Indian
National Lok Dal Party (“INLD”) – testified inter alia that he had been attacked
and beaten twice by members of the Congress Party within his home state of
Haryana after attending an INLD rally and an INLD-sponsored blood drive. He
reported the first assault to local police who accused him of lying, threatened him,
and ordered him out of the station. He did not report the second incident because
he feared reprisal from the police. Lal claimed that, should he be returned to India,
he will be persecuted by Congress Party members because of his support of the
INLD and his intention to proselytize for the INLD wherever he would reside in
India.
The IJ denied relief to Lal after concluding that: (1) Lal’s testimony was
credible; (2) Lal established past persecution on account of his political opinion by
persons that the government (at least in Haryana) was unwilling or unable to
control; and (3) the Department of Homeland Security (“DHS”) had established
that Lal could reasonably relocate within India because the INLD operates (and Lal
suffered persecution) only in Haryana. In reaching the third conclusion, the IJ
specifically considered the evidence as to the country conditions submitted by the

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parties and Lal’s testimony. The BIA affirmed the IJ’s decision on Lal’s asylum
and withholding of removal claims but declined to reach Lal’s claim for protection
under the CAT because he had not briefed or otherwise argued it on appeal.
Because Lal established past persecution, he was entitled to the rebuttable
presumption of a well-founded fear of future persecution. Singh v. Whitaker, 914
F.3d 654, 659 (9th Cir. 2019). Thus, the burden was on the government to “show
by a preponderance of the evidence that the applicant either no longer has a well-
founded fear of persecution in the country of his nationality, or that he can
reasonably relocate internally to an area of safety.” Id.; see 8 C.F.R. §
208.13(b)(1)(ii). The relocation analysis requires the agency to first determine
“whether an applicant could relocate safely” and, second, “whether it would be
reasonable to require the applicant to do so.” Whitaker, 914 F.3d at 659 (quoting
Afriyie v. Holder, 613 F.3d 924, 934 (9th Cir. 2010), abrogated on other grounds
by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1068 (9th Cir. 2017)). This
analysis must be an “individualized determination” that “is a tailored analysis of
the petitioner’s specific harms and circumstances.” Ali v. Holder, 637 F.3d 1025,
1030 (9th Cir. 2011); see also Whitaker, 914 F.3d at 659-60. DHS proposed that
Lal could safely relocate within India, outside of Haryana. This level of generality
is permissible, as “DHS may properly propose a specific or a more general area as
the place of safe relocation.” Whitaker, 914 F.3d at 660 (emphasis in original).

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After considering the evidence, both the IJ and the BIA found that: (1) the
INLD was a local political party operating solely within the Haryana region; (2)
the conflicts between the members of the Congress Party and INLD supporters
were limited to Haryana, where the INLD had presented a threat to the Congress
Party’s political control over the region; (3) the record did not show that Haryana
police ever harmed Lal or would be interested in locating him if he moved outside
of that state; and (4) there was nothing to indicate that local police (or other
government) forces outside of Haryana had any concerns as to the INLD Party or
its members.
As for Lal’s intention to proselytize for the INLD wherever he would reside
in India, the IJ and BIA concluded that there was no evidence that: (1) the
Congress Party attempted to locate INLD followers who left Haryana; (2) Lal
would be able to engage in the types of activities outside of Haryana which drew
the Congress Party’s attention to – and ire towards – him (e.g., attending INLD
mass rallies and sponsored blood drives); or (3) the Congress Party searches for or
attacks INLD supporters who leave Haryana for another region; that it has the
capacity for locating such persons; and/or that it has any concerns as to an
individual INLD member who attempts to proselytize for that organization in a
region where it has not heretofore had adherents.
We conclude that the IJ and BIA have conducted a sufficiently

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individualized analysis tailored to Lal’s specific harms and circumstances. Cf.
Whitaker, 914 F.3d at 661 (noting that, while “the BIA’s analysis focused on
whether the Punjabi police would follow [the petitioner] outside of Punjab, based
on his past political activity, ultimately concluding that he was not sufficiently
high-profile for them to do so . . . . [it failed to] account for the persecution he may
face outside Punjab from local authorities, or other actors, based on his future
political activities . . . . [and] also failed to specifically address [his] stated intent to
continue proselytizing for his party wherever he went.”). Here, the IJ and BIA did
consider and reached conclusions as to those matters which are supported by
substantial evidence in the record.
In regards to whether it would be reasonable to require Lal to relocate to
another region in India outside of Haryana, 8 C.F.R. § 1208.13(b)(3) requires the
BIA to consider a nonexhaustive list of factors and decide whether any of them
makes relocation unreasonable. See Boer-Sedano v. Gonzales, 418 F.3d 1082,
1090 (9th Cir. 2005). The IJ and BIA found that Lal could reasonably relocate due
to his young age (26 at the time), unmarried status, good health, ability to speak
Hindi (the official language of India) and some English, his degrees in psychology
and economics, and his work experience in both farming and in retail. Substantial
evidence in the record supports the finding that Lal can reasonably relocate within
India outside of Haryana.

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As to Lal’s claim for protection under the CAT, because Lal failed to
exhaust the IJ’s denial of his CAT claim before the BIA, we lack jurisdiction over
that issue. Exhaustion of administrative remedies is a prerequisite to our
jurisdiction. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th
Cir. 2004). When a petitioner raises an issue in his notice of appeal to the BIA but
fails to include any argument on that matter in his brief, he “will . . . be deemed to
have exhausted only those issues he raised and argued in his brief before the BIA.”
Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam).
Although he generally mentioned his CAT claim in his Notice of Appeal to the
BIA, Lal failed to make any argument on this issue in his brief before the BIA.
Lal’s counsel conceded this point at oral argument.
PETITION FOR REVIEW DENIED.

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