Demarcuks v. Department of Homeland Security
Opinion of the Court
SUMMARY ORDER
Upon due consideration of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the BIA be and hereby is VACATED and this matter remanded for further proceedings.
Where, as here, the BIA summarily affirms the IJ’s decision, this Court reviews the decision of the IJ directly. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). We review the IJ’s factual findings under the substantial evidence standard. Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004).
First, we find that the IJ’s adverse credibility finding cannot stand, because the IJ failed to articulate “specific, cogent reasons” that “bear a legitimate nexus” to the finding. Zhang, 386 F.3d at 74. The only reason she gave for her adverse credibility finding was supposed inconsistency between the country report in evidence and Demarcuks’ account.
Second, the IJ stated, without explanation, that the events Demarcuks described, even if his testimony were credited, would not constitute past persecution. Considering the events described, including instances of violence against Demarcuks, the IJ was required to provide sufficient reasoning to at least permit judicial review of her conclusion. See Ivanishvili v. United States DOJ, 433 F.3d 332, 344 (2d Cir. 2006). This conclusion, too, is vacated.
Finally, the IJ stated that Demarcuks “ha[d] not established why he could not have relocated” to another part of Latvia to avoid persecution. Asylum may be denied, even upon a showing of past persecution, if the IJ finds, by a preponderance of the evidence, that the applicant “could avoid future persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(l)(i)(B). The IJ improperly put the burden of proof on Demarcuks to show that he could not have relocated, and so this conclusion was improper.
Accordingly, we VACATE the decision of the BIA and remand this case for further proceedings consistent with this order.
. While the IJ stated that she had observed Demarcuks’ demeanor, she did not assert that these observations had influenced her decision.
Reference
- Full Case Name
- Sergejs DEMARCUKS v. DEPARTMENT OF HOMELAND SECURITY and the Executive Office for Immigration Review
- Status
- Published