                                                                            FILED
                              NOT FOR PUBLICATION                            JUN 09 2011

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




                              FOR THE NINTH CIRCUIT



VIRBHAN DAGAR; et al.,                           No. 08-70677

               Petitioners,                      Agency Nos. A099-340-270
                                                             A099-340-271
  v.                                                         A099-340-272

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



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

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Virbhan Dagar and his family, natives and citizens of India, petition for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing their

appeal from an immigration judge’s (“IJ”) decision denying their application for

asylum, withholding of removal, and protection under the Convention Against


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence factual findings. Mashiri v.Ashcroft, 383 F.3d 1112, 1118

(9th Cir. 2004). We dismiss in part and grant in part the petition for review, and

we remand.

      We lack jurisdiction to consider petitioners’ claim for humanitarian asylum

because they did not raise this issue to the BIA. See Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented below).

      Because the agency found Dagar established past persecution, the

government had the burden to establish by a preponderance of the evidence that

petitioners could avoid future persecution by relocating within India and that,

under all the circumstances, it would be reasonable to expect them to do so. See 8

C.F.R. §§ 1208.13(b)(1)(ii), 1208.16(b)(1)(ii); Melkonian v. Ashcroft, 320 F.3d

1061, 1070 (9th Cir. 2003) (where an applicant shows past persecution, the INS

has the burden to demonstrate by a preponderance of the evidence that the

applicant “can reasonably relocate internally to an area of safety”). Dagar testified

the police sought him out and mistreated him for years after his whistle-blowing

activities and work-reinstatement efforts, did so despite multiple changes of

residence and trips abroad, detained and seriously mistreated his father-in-law

when they could not find him, and continued to inquire about him. In addition,


                                          2                                     08-70677
petitioners indicated their ties to the United States through their two U.S. citizen

children. Substantial evidence does not support the agency’s conclusion that

Dagar’s fear of future persecution was rebutted by evidence he could relocate

internally. See Mashiri, 383 F.3d at 1122-23. Accordingly, we grant the petition

for review. Because Dagar is eligible for asylum and entitled to withholding of

removal, we remand this case so that the Attorney General may exercise his

discretion under 8 U.S.C. § 1158(b) as to whether to grant asylum and so that the

BIA can enter the appropriate order for withholding of removal. See Zhou v.

Gonzales, 437 F.3d 860, 871 (9th Cir. 2006) (citation omitted). In light of our

conclusions, we need not reach petitioners’ contention regarding CAT relief.

      PETITION FOR REVIEW DISMISSED in part; GRANTED in part;

REMANDED.




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