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Final Rule on Asylum Procedures Introduces “Internal Relocation” Requirement
by Carl R. Baldwin

The final rule on asylum procedures, published in the Federal Register on December 6, 2000, contains a new requirement of “internal relocation.” 8 C.F.R. Section 208.13(b)(1)(i)(B). The rule first states that an applicant who can establish past persecution will be presumed to have a well-founded fear of future persecution on the basis of the original claim, unless the asylum officer or immigration judge rebuts that presumption. It then goes on to say (and this is new) that the application may be referred or denied (in the case of the asylum officer) or denied (in the case of the judge), in the exercise of discretion, if the applicant “could avoid future persecution by relocating to another part of the applicant’s country of nationality or if stateless, to another part of the applicant’s country of last habitual residence, and, under all the circumstances it would be reasonable to expect the applicant to do so.”

Despite the “reasonableness” requirement, the new rule sounds at first glance to be unworkable. If a person has in fact been persecuted in her home country, often by someone of intimidating authority, why should she not be allowed to flee at once to a safe country, rather than being required to search throughout her home country to find protection from the persecutor, whose abilities to find the victim again would no doubt be far superior to the victim’s abilities do evade him? Most of my asylum clients have been terrified persons of very limited resources. The prospect of their gathering together their meager possessions to find a safe haven, perhaps under the watchful eye of their persecutor, defies common sense and reality.

The new rules fortunately go on, under (b)(1)(ii), Burden of Proof, to state that if the applicant has established past persecution the Service shall bear the burden of establishing by a preponderance of the evidence the requirements of paragraphs (b)(1)(i)(A) (claim no longer valid due to fundamentally changed circumstances) or (B) (requirement of internal relocation).

The question arises as to how on earth the Service could do that? Is it ready to send native speakers to countries like Kenya and Togo and Ethiopia to locate and question the victims, and then to find and attempt to question the persecutors? Does it have such native speakers who are conversant with asylum principles, and does it have the money from Congress to undertake this kind of work?

A useful provision in the rule at (B)(ii) gives a specific instance of when the requirement of internal relocation would not be reasonable, and it may well be the first provision of the new rule that applicants and their attorneys should look at. Here is what it says: “In cases in which the persecutor is the government or is government-sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence, that, under all the circumstances, it would be reasonable for the applicant to relocate.”

On first reading this paragraph it struck me as being inconsistent with the paragraph announcing the rules on internal relocation. I wrote to Joanna Ruppel, the INS official who speaks for matters relating to the Service concerning the final rule. Noting the two paragraphs discussed above, I asked:

“In the first cite we are told that the applicant who can show past persecution must relocate; in the second we are told that it would be unreasonable to ask the applicant who can show past persecution to relocate. Which of these two is the ‘operative one’? Or is there some way to reconcile them. Any advice that you could offer would be much appreciated.”

Ms. Ruppel phoned me and said that she saw no inconsistency. Both provisions, she said, emphasized the question of whether the requirement was reasonable under all the circumstances. She emphasized that, in each of the two provisions, the Service has the burden of proof either to show that the relocation is reasonable, or to disprove the presumption that it would not be reasonable.

Ms. Ruppel’s clarification is reassuring. But a very large question remains in my mind as to how in the world the INS will have the “on the ground” expertise to properly determine whether internal relocation is reasonable. Or, I would add, even economically possible.

About The Author

Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be rached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from

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