                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 13 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROZI SONI,                                        No. 07–72874

              Petitioner,                         Agency No. A97–614–142

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                        Argued and Submitted May 11, 2011
                             San Francisco, California

Before: HUG and PAEZ, Circuit Judges, and WATSON,** District Judge.

       Rozi Soni (“Soni”), a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s (“IJ”) decision denying her application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
       **
            The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
We have jurisdiction under 8 U.S.C. § 1252, and grant the petition for review and

remand for further proceedings.

      We review the agency’s factual findings for substantial evidence and its

legal conclusions de novo. Viridiana v. Holder, 630 F.3d 942, 945 (9th Cir. 2011).

Where, as here, the agency did not make an express adverse credibility finding, the

petitioner’s testimony is accepted as true. See id.

      Soni demonstrated that she suffered persecution when three Punjab police

officers detained, raped, and beat her following her arrest at a student political

rally, and afterwards continued to seek her at her family’s home. She is therefore

entitled to a presumption that she would suffer persecution if she returned to India.

8 C.F.R. § 1208.13(b)(1). The government bears the burden of rebutting that

presumption by a preponderance of the evidence to show that Soni could safely

and reasonably relocate in India. See 8 C.F.R. § 1208.13(b)(1)(ii); Afriyie v.

Holder, 613 F.3d 924, 934 (9th Cir. 2010).

      The IJ’s conclusion that the government rebutted the presumption by

showing that internal relocation would be both safe and reasonable for Soni is not

supported by substantial evidence. Although the IJ pointed to some evidence that

Soni could safely relocate, the country reports on which he relied are inconclusive,

and do not, by themselves, constitute substantial evidence. In addition, the IJ


                                           2
erroneously found that Soni’s continued presence in India indicated she could

safely relocate, when in fact the Punjab police continued to seek Soni at her

family’s home until she left India. Because Soni did not remain in India without

incident, her continued presence there does not rebut the presumption of a well-

founded fear of future persecution. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.

2000).

         Moreover, in addressing the reasonableness of relocation, the IJ sidestepped

the difficulties a single Indian woman such as Soni would face in relocating in

India by suggesting that Soni’s husband could move to India with her. The record

is devoid of evidence that Soni’s husband could relocate with her in India, and the

IJ’s decision completely ignores evidence that Soni and her husband have two U.S.

citizen children. The IJ’s failure to properly address the cultural restraints and

familial ties factors requires remand. See 8 C.F.R. § 1208.13(b)(3); Afriyie, 613

F.3d at 935.

         Accordingly, we grant the petition for review and remand for further

proceedings in which Soni’s continued presence in India after her detention and

rape shall not be deemed evidence that she could safely relocate. On remand, the

agency shall also address the cultural restraints and familial ties factors, placing the

burden on the government to show Soni’s husband could relocate with her.


                                            3
PETITION FOR REVIEW GRANTED; REMANDED.




                      4
