In a case in which the agency determined that the petitioner had suffered past persecution on account of a protected ground, the Fourth Circuit addressed what type of evidence is necessary to rebut the resulting presumption of future persecution. The court rejected the idea that the Department of Homeland Security must produce some type of evidence, and indicated that at times, the agency would be able to rely on the petitioner’s evidence (including her testimony) to find the presumption had been rebutted. However, it is not sufficient for the agency to simply find state that the record is ambiguous as to whether there had been a fundamental change in circumstances or whether the petitioner could safely internally relocate. “To rebut the presumption, the government must prove that its view of the evidence as to either condition is the most convincing one.”
The court determined that a persecutor’s failure to contact the petitioner for the intervening years that she had been in the United States, on its own, does not rebut the presumption. There were other explanations - such as the difficulty in locating the petitioner while she resided in the United States - that could explain the persecutor’s lack of contact. It was not a reasonable conclusion that he had necessarily lost interest in harming her.
Similarly, the fact that the petitioner had briefly been able to relocate (in hiding) to another part of Honduras did not indicate she could safely relocate now, as it is not reasonable to assume she will remain in hiding for her entire life. The agency’s error was compacted by the fact that the persecutor had tracked the petitioner to another part of the country in the past.
The full text of Ortez-Cruz v. Barr can be found here:
http://www.ca4.uscourts.gov/opinions/181439.P.pdf