Clarifying the Burden of Proof and Internal Relocation in Asylum Claims Involving Private Actors

Introduction

This commentary examines the Eleventh Circuit’s decision in Daniel Macedo de Sousa et al. v. U.S. Attorney General (No. 24-10340, April 18, 2025), a precedent that reinforces the applicant’s burden to prove persecution, nexus to a protected ground, and the unreasonableness of internal relocation when persecution is by private actors. The petitioners—Brazilian nationals Daniel Macedo de Sousa, Noeme Silva da Costa, and their child, Isa Emanuelle Macedo Silva—sought asylum and withholding of removal after Silva da Costa’s brother was murdered. The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) denied relief on three grounds: lack of past persecution, absence of a well-founded fear of future persecution, and failure to demonstrate that relocation within Brazil would be unreasonable.

Summary of the Judgment

The Eleventh Circuit affirmed the BIA’s decision. Key holdings:

Substantial evidence supported the finding that the petitioners did not suffer past persecution because the assailant never threatened or harmed them directly and the threat from a loan shark was conceded to lack a protected‐ground nexus.
The petitioners failed to demonstrate an objectively reasonable fear of future persecution: the murderer had fled, no subsequent harm occurred during the year after the crime, and Silva da Costa’s father remained unharmed.
Internal relocation within Brazil was reasonable: under 8 C.F.R. § 208.13, when persecution is by private actors, relocation is presumed reasonable and the petitioners did not rebut that presumption.
Accordingly, the petitioners were ineligible for asylum under INA § 208 and for withholding of removal under INA § 241(b)(3).

Analysis

Precedents Cited

The court relied on a series of controlling and illustrative decisions:

Mohammed v. U.S. Att’y Gen. (547 F.3d 1340): Standard for reviewing BIA factual findings under the substantial-evidence test.
Hasan-Nayem v. U.S. Att’y Gen. (55 F.4th 831): Credibility deference and reasonable-inference rules in asylum adjudications.
Farah v. U.S. Att’y Gen. (12 F.4th 1312): Forfeiture of issues not raised in the opening brief.
Sanchez Jimenez v. U.S. Att’y Gen. (492 F.3d 1223): Definition of “refugee” under INA § 101(a)(42)(A).
Silva v. U.S. Att’y Gen. (448 F.3d 1229): Two ways to establish asylum eligibility—past persecution or well-founded fear of future persecution.
Cendejas Rodriguez v. U.S. Att’y Gen. (735 F.3d 1302): Standards for withholding of removal and the rebuttable presumption following past persecution.
Shi v. U.S. Att’y Gen. (707 F.3d 1231): “Persecution” as an extreme concept requiring more than minor harassment or abuse.
Djonda v. U.S. Att’y Gen. (514 F.3d 1168) and Mejia v. U.S. Att’y Gen. (498 F.3d 1253): Illustrations of what constitutes (or does not constitute) persecution.
Diallo v. U.S. Att’y Gen. (596 F.3d 1329): Death threats by persons able to carry them out can rise to persecution.
Sepulveda v. U.S. Att’y Gen. (401 F.3d 1226): Menacing calls alone are insufficient without accompanying harm.
Arboleda v. U.S. Att’y Gen. (434 F.3d 1220): Internal relocation analysis when persecution is by a widespread guerrilla group.

Legal Reasoning

The court applied the following framework:

Review standard: BIA legal conclusions de novo; factual findings under substantial evidence, drawing all inferences in favor of the agency’s decision.
Asylum eligibility: must establish refugee status by showing past persecution or a well-founded fear of future persecution on a protected ground.
Withholding of removal: higher “more likely than not” standard but same protected-ground requirement.
Definition of persecution: “extreme concept” requiring more than isolated harassment or minor abuse.
Internal relocation presumption: under 8 C.F.R. § 208.13(b)(3), reasonable relocation is presumed when persecution is by private actors, and the applicant bears the burden to rebut it.

Applying this test, the Eleventh Circuit found no direct nexus to a protected ground, no compelling evidence of physical or credible life-threatening harm, and no basis to override the presumption of reasonable internal relocation.

Impact

This decision underscores:

The threshold for establishing past persecution remains high when harm is inflicted by non-state actors and lacks a political, religious, racial, or other protected nexus.
Applicants must produce specific, compelling evidence if they wish to rebut the internal relocation presumption; generalized fears or remote threats are insufficient.
Future claimants in similar circumstances should prepare detailed evidence on why relocation within their country of nationality would be impracticable or dangerous.
The precedential clarity on burden allocation will guide both immigration judges and the BIA in adjudicating claims of private-actor persecution.

Complex Concepts Simplified

Refugee (INA § 101(a)(42)): A person outside their country who cannot or will not return due to persecution or a well-founded fear thereof.
Well-Founded Fear: A subjective (genuine fear) and objective (reasonable possibility) test for future persecution.
Substantial Evidence Test: A highly deferential standard: if reasonable evidence supports the agency’s finding, it must stand.
Internal Relocation: A requirement that an asylum seeker must show they cannot reasonably move to another part of their home country to avoid persecution.
Protected Grounds: Race, religion, nationality, political opinion, or membership in a particular social group.

Conclusion

Macedo de Sousa v. U.S. Attorney General reaffirms that asylum seekers bear a stringent burden when persecution arises from private individuals and lacks a protected-ground nexus. The decision clarifies that, absent credible evidence of state sponsorship or an impossibility of safe relocation, the internal relocation presumption is difficult to overcome. As a result, future claimants must marshal detailed factual records to demonstrate why any part of their country is off-limits before asylum and withholding of removal will be granted in private-actor persecution cases.