Poudel v. Gonzales

MEMORANDUM ** Sanjiv Poudel, a native of Nepal, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, which affirmed the Immigration Judge’s order denying his application for asylum, withholding of removal and relief under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252 . We grant the petition for review and remand. The BIA’s determination that, despite having suffered past persecution, Poudel could reasonably relocate to Kathmandu, Nepal, is not supported by substantial evidence because the BIA failed to consider evidence in the record that is relevant to determining the reasonableness of relocation. See Melkonian v. Ashcroft, 320 F.3d 1061, 1070 (9th Cir.2003). The presumption of a well-founded fear of persecution is not rebutted where, as here, the record shows that persecution similar to that experienced by the petitioner is not limited to any one area. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090 (9th Cir.2005). Accordingly, we conclude that Poudel is statutorily eligible for asylum, and we grant and remand for an exercise of discretion. See id. at 1092 . We also remand to the BIA to consider, in the first instance, Poudel’s withholding of removal claim, in light of the unrebutted presumption that Poudel’s life or freedom would be threatened in the future if he were removed to Nepal. See id. PETITION FOR REVIEW GRANTED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.