Ortiz-Herrera: The Board Put the Relocation Burden on the Wrong Party

The relocation finding drove the denial

The immigration judge denied asylum and withholding of removal based on a finding that Ortiz-Herrera could reasonably and safely relocate within Honduras. The Board affirmed. Ortiz-Herrera then asked the Ninth Circuit to review the agency’s decision.

The panel’s analysis turned on two parts of that record: what the Board actually decided and the burden governing relocation after established past persecution. The court treated each separately. First it determined that the relocation issue was available for judicial review. It then examined whether the Board had applied the correct burden.

The Board’s express adoption mattered to exhaustion

An issue ordinarily needs to be presented to the Board before it can be pursued in a petition for review. Ortiz-Herrera had not raised the immigration judge’s relocation determination in her Board brief. But the Board expressly affirmed and adopted the judge’s reasoning on that issue, using the procedure associated with Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994).

The panel examined the Board’s actual treatment of relocation, rather than treating the omission from the brief as the end of the inquiry. It explained that the agency had a full opportunity to correct its own errors because the Board had itself addressed the issue. The court therefore considered the challenge exhausted and reviewed the relocation determination.

The difference is concrete. A brief that omits a ground and a Board decision that nevertheless expressly adopts a ruling on that ground are separate documents with separate legal significance. Here, the latter allowed review. Reading both documents was necessary to understand why the court could reach the burden error.

Past persecution put the relocation burden on the government

In Ortiz-Herrera, the panel applied the July 2019 version of 8 C.F.R. section 1208.13(b)(3)(ii). Under the rule it applied, established past persecution created a presumption that internal relocation would not be reasonable. The government had to overcome that presumption by a preponderance of the evidence, considering all the circumstances. In plain terms, the government had to prove, more likely than not, that moving would be reasonable for her.

That allocation matters because it identifies which party must make the required showing. The question was whether the government’s proof established reasonable relocation under the governing standard, rather than whether Ortiz-Herrera had shown that she would be unable to relocate.

The immigration judge identified the government’s burden correctly and concluded that the government had met it. The Board cited Burbano, which would ordinarily indicate agreement with the judge’s approach. But its own explanation then measured the case against a different burden.

The Board’s added explanation changed who had to prove the point

The Board said it agreed that Ortiz-Herrera had not shown that she would be unable to relocate to another part of Honduras and that relocation would be reasonable under all the circumstances. The Ninth Circuit identified that wording as a shift of the burden from the government to the applicant.

The citation adopting the judge’s reasoning did not resolve that conflict. The judge had assessed whether the government met its burden; the Board’s additional reasoning asked whether Ortiz-Herrera had made a contrary showing. The court required the Board to reassess the relocation determination with the burden on the government.

For someone reviewing a short Board decision, this is a useful reason to read beyond an adoption citation. Compare the Board’s own explanatory sentences with the rule and findings it says it accepts. A sentence can change the legal test even when the overall result remains the same.

The rule’s version was part of the court’s reasoning

In Ortiz-Herrera, the panel explained why it used the earlier regulation. Its March 4 footnote described later amendments that shifted the burden to an applicant when the persecutor was a private party. It stated that those amendments had been enjoined and relied on the preceding version, citing De Souza Silva v. Bondi, 139 F.4th 1137, 1145 (9th Cir. 2025).

That explains the legal framework used in this decision. A review of a different case needs the regulation and operative orders that govern that case, together with the agency’s actual past-persecution finding. Our relocation-evidence guide addresses the distinct task of matching a proposed destination with the evidence about safety and reasonableness.

The remand began with the correct burden

The court directed the Board to reassess the immigration judge’s relocation determination with the government bearing the burden. It also gave a sequence for the remaining issues: The Board would need to reach them if that reassessment led it to reverse the relocation determination. If the relocation ground remained sufficient under the proper burden, deciding the other issues would be unnecessary.

The panel granted the petition in part and remanded. It separately granted Ortiz-Herrera’s motion to stay removal. The next agency decision therefore needed to begin with the corrected relocation analysis.

Compare the findings, the burden and the Board’s own words

For this kind of review, gather the complete immigration judge’s decision, the Board brief and the Board’s decision. Identify the finding about past persecution, the rule applied to relocation and the party assigned the burden. Then compare the Board’s actual reasons with the judge’s reasons. In Ortiz-Herrera, that comparison exposed both the basis for judicial review and the legal error that required remand.

If the agency also decided other grounds, keep those findings separate. The remand sequence in this case depended on what the Board would conclude after applying the correct relocation burden. An accurate review needs the actual grounds supporting the denial and the arguments made at each stage.