                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 28 2011

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




                            FOR THE NINTH CIRCUIT

MOHAMED ZULFIKAR MOHAMED                         No. 06-75630
RAZIK,
                                                 Agency No. A097-355-002
              Petitioner,

  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 February 14, 2011
                              Pasadena, California

Before: KLEINFELD, LUCERO,** and GRABER, Circuit Judges.

       Petitioner Mohamed Zulfikar Mohamed Razik, a native and citizen of Sri

Lanka, petitions for review of the Board of Immigration Appeals’ ("BIA") order

dismissing his appeal from the immigration judge’s denial of asylum and

withholding of removal. Reviewing the BIA’s legal determinations de novo,

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Carlos F. Lucero, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011 (9th Cir. 2006), and the BIA’s

factual determinations for substantial evidence, Hamazaspyan v. Holder, 590 F.3d

744, 747 (9th Cir. 2009), we grant the petition.

      When the relevant facts are not in dispute, we have jurisdiction to review the

BIA’s determination that a petitioner filed an untimely asylum application.

Khunaverdiants v. Mukasey, 548 F.3d 760, 765 (9th Cir. 2008). Here, the

historical facts are not in dispute because the BIA expressly found that Petitioner

had successfully relocated within Sri Lanka "until he departed the country in

January 2003." The asylum application was filed in October 2003. Having found

that Petitioner departed Sri Lanka in January 2003 and having received his asylum

application in October 2003, the BIA was required under Khunaverdiants to

conclude as a matter of law that the asylum application was filed within one year

of Petitioner’s arrival in the United States. We therefore remand Petitioner’s

asylum claim to the BIA for a determination on the merits.

      Moreover, as the government concedes, the BIA legally erred in analyzing

Petitioner’s withholding of removal claim. Because Petitioner demonstrated past

persecution, he is entitled to a presumption "that [his] life or freedom would be

threatened in the future in the country of removal." 8 C.F.R. § 1208.16(b)(1)(i);

see Mutuku v. Holder, 600 F.3d 1210, 1213 (9th Cir. 2010). The BIA expressly


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found, relying on his testimony, that Petitioner "established past persecution on

account of a protected ground." But the BIA then improperly placed the burden of

proof as to future persecution on Petitioner.

      Additionally, the BIA legally erred by failing to analyze whether the

proposed relocation within Sri Lanka was reasonable, as guided by the

considerations listed in 8 C.F.R. § 1208.16(b)(3). See Afriyie v. Holder, 613 F.3d

924, 936–37 (9th Cir. 2010) (remanding because "[t]he BIA failed to discuss the

reasonableness factors set forth in [the regulations] or discuss how the government

met its burden of showing that relocation was reasonable"). Because of the BIA’s

legal errors, we remand Petitioner’s withholding of removal claim for

reconsideration.

      In view of these errors concerning asylum and withholding, the BIA’s

analysis of the CAT claim may have been affected as well. We therefore remand

the entire case for reconsideration.

      Petition GRANTED. REMANDED.




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