For Pre‑2021 Asylum Filings, Past Persecution Triggers a Presumption that Internal Relocation Is Unreasonable—Burden Rests with DHS (Sahni v. Bondi)

Introduction

This commentary analyzes the Second Circuit’s September 10, 2025 summary order in Sahni v. Bondi, No. 22‑6333, a petition for review challenging the denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Although issued as a nonprecedential summary order, the decision provides significant guidance on a recurring and outcome-determinative issue in asylum adjudications: who bears the burden of proof on the reasonableness of internal relocation, particularly in cases filed before the 2020 regulatory amendments that altered the relocation presumptions and burdens.

The petitioner, Sunny Sahni, a native and citizen of India, credibly established past persecution in the state of Haryana at the hands of members of the Bharatiya Janata Party (BJP) due to his work for the Indian National Lok Dal (INLD). The Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) found past persecution, thereby triggering a presumption of future persecution. The agency nonetheless denied relief, holding that the Department of Homeland Security (DHS) rebutted the presumption because Sahni could avoid harm by relocating within India and because relocation would be reasonable.

The Second Circuit affirmed the agency’s finding on the first prong—Sahni could avoid persecution by relocating—but vacated and remanded on the second prong, concluding that the agency committed legal error by misallocating the burden of proof. Because Sahni’s application predated the 2020 rule, the pre‑2021 regulations applied and created a presumption that internal relocation would be unreasonable once past persecution is shown—irrespective of whether the persecutor was a public or private actor. The court also remanded the CAT claim, which the agency had denied based on its internal-relocation analysis.

Summary of the Opinion

The Second Circuit:

Denied the petition in part: Substantial evidence supported the agency’s finding that Sahni could avoid future persecution by relocating outside Haryana (prong one of the internal-relocation rebuttal).
Granted the petition in part and remanded: The agency misapplied the law by placing the burden on Sahni to prove that internal relocation would be unreasonable (prong two). Under the pre‑2021 regulatory framework governing his application, once past persecution is established, there is a presumption that internal relocation is not reasonable, and DHS bears the burden to rebut that presumption by a preponderance of the evidence.
Remanded the CAT claim: The agency’s CAT analysis rested on the same relocation reasoning, requiring further proceedings.

In a key clarification, the court held that the 2020 rule revising the internal-relocation framework is purely prospective and cannot be applied to applications filed before its effective date. For legacy cases, the earlier presumption and burden allocation remain controlling.

Analysis

Governing Framework and Standards

The court reviewed the IJ and BIA decisions together because the BIA affirmed and adopted the IJ’s reasoning. It applied substantial-evidence review to factual findings, and de novo review to legal conclusions. The agency had found that Sahni suffered past persecution on account of political opinion, which triggered presumptions of a well-founded fear and of likely future persecution for both asylum and withholding.

DHS can rebut those presumptions by showing, by a preponderance of the evidence, both:

Prong 1 (Ability): The applicant could avoid persecution by relocating to another part of the country; and
Prong 2 (Reasonableness): Under all the circumstances, it would be reasonable to expect the applicant to relocate.

Crucially, for applications governed by the pre‑2021 regulations, once an applicant establishes past persecution, there is a presumption that internal relocation would be unreasonable, shifting the burden to DHS to establish reasonableness. The 2020 rule removed that presumption and generally placed the burden on applicants—but only for filings on or after the effective date.

Precedents and Authorities Cited

Wangchuck v. DHS, 448 F.3d 524 (2d Cir. 2006): Sets the review posture when the BIA adopts the IJ’s reasoning; the court reviews both decisions.
Jian Liang v. Garland, 10 F.4th 106 (2d Cir. 2021): Confirms de novo review for legal questions and substantial-evidence review for factual findings.
8 U.S.C. § 1252(b)(4)(B): Agency factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise.
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012): Future-risk predictions are factual determinations, entitled to deferential review.
Surinder Singh v. BIA, 435 F.3d 216 (2d Cir. 2006): Asylum is not a means to avoid safe internal relocation.
Jagdeep Singh v. Garland, 11 F.4th 106 (2d Cir. 2021): Persecution by political-party members does not equate to state persecution; illustrates how record evidence can support reasonable relocation.
In re H‑, 21 I. & N. Dec. 337 (BIA 1996): The government may rely on evidence already in the record to carry its burden, but must affirmatively meet its evidentiary obligations.
Kone v. Holder, 596 F.3d 141 (2d Cir. 2010): DHS cannot satisfy its burden by pointing to an absence of contrary evidence; it must affirmatively prove the point by a preponderance.
Abu Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007): Remand is appropriate when the agency’s decision is premised on legal error.
Gurung v. Barr, 929 F.3d 56 (2d Cir. 2019): The court will affirm despite legal error only if remand would be futile.
8 C.F.R. §§ 1208.13, 1208.16 (pre‑2021 versions): Presumption that relocation is unreasonable once past persecution is established; identifies reasonableness factors.
85 Fed. Reg. 80274 (Dec. 11, 2020): Amended the internal-relocation presumptions and burden allocation, but expressly made those changes prospective, applying only to applications filed on or after the effective date.

Legal Reasoning

1) Ability to Avoid Persecution by Relocating (Prong One): Substantial Evidence Supported the Agency

The court upheld the agency’s finding that Sahni could avoid future persecution by relocating within India:

His past harm was inflicted by local BJP supporters in Haryana; the record did not show national-level targeting or pursuit by high-level officials.
Sahni testified he was a worker, not a high-level figure, in a party active primarily in Haryana.
Although Sahni expressed concern that India’s biometric ID system and certain local tenant-registration practices could expose him if he relocated, the record did not show these systems were used to target individuals like him who resisted party recruitment.
Country-conditions reporting (including State Department materials) did not corroborate a nationwide pattern of violent BJP recruitment or targeted persecution of INLD affiliates across India.

Given this record, the court was not “compelled” to conclude that harm would follow Sahni outside Haryana. That sufficed, under the deferential substantial-evidence standard, to sustain the agency’s prong-one determination.

2) Reasonableness of Relocation (Prong Two): Legal Error in Burden Allocation Requires Remand

On prong two, the BIA and IJ required Sahni to demonstrate that relocation would be unreasonable—citing provisions applicable to non-state persecutors. This was legal error for a pre‑2021 filing. Under the governing regulations at the time of Sahni’s application and IJ decision:

Once an applicant establishes past persecution, internal relocation is presumed unreasonable.
DHS bears the burden to rebut that presumption by a preponderance of the evidence, considering factors such as administrative, economic, and judicial infrastructure; geographic, social, or cultural constraints; age, health, and family ties.

The BIA appears to have applied the post‑2020 amendments (which eliminated the past-persecution presumption and added a presumption favoring reasonableness even when past persecution occurred). But those amendments are expressly prospective and do not apply to Sahni’s pre‑2021 case. The government’s attempt to defend the decision by faulting Sahni for not producing evidence of unreasonableness repeated the same burden-error. As Kone and In re H‑ make clear, DHS must affirmatively carry its evidentiary burden; it cannot rely on silence or an absence of contrary evidence.

Because the agency applied the wrong legal standard, remand is required for the BIA (or IJ on remand) to reassess reasonableness while correctly assigning the burden to DHS. The panel declined to weigh the reasonableness factors itself in the first instance.

3) CAT Protection: Remand Follows from the Same Error

The agency denied CAT relief based on the view that Sahni’s ability to relocate undermined the likelihood of torture. Because that analysis was intertwined with the flawed burden allocation on internal relocation, the Second Circuit remanded the CAT claim as well.

What This Order Does Not Decide

The court did not hold that internal relocation is unreasonable for Sahni; it held only that the agency used the wrong burden allocation. On remand, DHS may still try to prove reasonableness with affirmative evidence.
The court did not question the agency’s determination that Sahni can avoid persecution by relocating; that finding stands.
The court did not create binding precedent; this is a summary order. But it may be cited under FRAP 32.1 and Local Rule 32.1.1, and it is persuasive guidance.

Impact

Immediate Implications for Legacy Asylum and Withholding Cases

Presumption retained: In cases filed before the 2020 rule’s effective date, once past persecution is found, internal relocation is presumed unreasonable—even when the persecutor is a private actor. DHS bears the burden to rebut reasonableness by a preponderance.
Burden cannot be shifted to the applicant: Agencies may not require applicants to prove unreasonableness in legacy cases. Any such shift is legal error warranting remand.
DHS must affirmatively present evidence: DHS may rely on the existing record but cannot carry its burden by highlighting gaps. It must point to affirmative proof that, under all the circumstances, relocation would be reasonable for this applicant.
CAT analyses affected: If an agency’s CAT denial relied on the same relocation analysis, a burden error will often require CAT remand, too.

Substantive Guidance for Indian Political-Persecution Claims

Local vs national reach: Harm by local party members and unresponsive local police, without more, may not establish a nationwide risk.
Evidence of national targeting matters: To defeat the prong-one “ability to avoid harm” finding, applicants need record evidence of nationwide pursuit, widely disseminated wanted status, or a persecutor with national capacity and intent to track the applicant across states.
Identification systems and registration: Generic evidence of biometric IDs or tenant registration will not, by itself, show nationwide targeting; the record must connect those systems to actual targeting of similarly situated people.

Systemic Effects on Adjudication

Case-management: A material number of pre‑2021 filings still in the pipeline may require re-evaluation where IJs/BIA applied the post‑2020 burdens and presumptions. Expect remands or reopened proceedings.
Training and templates: Agency decision templates must differentiate pre‑ and post‑2021 regulatory regimes when addressing internal relocation.
Litigation posture: Government counsel should be prepared to affirmatively marshal country-conditions and applicant-specific evidence on reasonableness in legacy cases; respondents should invoke the presumption and highlight individualized constraints.

Complex Concepts Simplified

Past persecution and presumptions: If an applicant proves past persecution on a protected ground, the law presumes they face future persecution. The government can try to rebut that presumption.
Internal relocation rebuttal has two prongs:
- Ability: Could the applicant avoid harm by moving somewhere else in the country?
- Reasonableness: Would it be fair to expect the applicant to relocate, considering practical realities like employment, language, safety, family ties, and access to basic services?
Burdens of proof (pre‑2021 filings): After past persecution is found, the law presumes relocation is not reasonable. DHS must overcome this presumption with evidence. Applicants need not prove unreasonableness.
Substantial-evidence review: The appellate court defers to the agency’s factual findings unless the record compels the opposite conclusion. Legal mistakes, however, are corrected de novo.
Prospective rulemaking: When an agency states that a new rule applies only to future filings, adjudicators must apply the prior rule to earlier cases.
Private vs. state actors: Persecution by private actors can qualify if the government is unwilling or unable to control them. But private-actor persecution does not automatically imply nationwide reach.

Practical Guidance for Practitioners

Identify the governing regulatory regime: Pin down the filing date. If pre‑2021, explicitly invoke the presumption that relocation is unreasonable and cite the pre‑2021 versions of 8 C.F.R. §§ 1208.13(b)(3)(ii), 1208.16(b)(3)(ii).
Object to burden shifting: If the IJ or BIA suggests the applicant must prove relocation is unreasonable in a pre‑2021 case, preserve the legal error.
Develop individualized reasonableness evidence: Even with the presumption, help the record by documenting:
- Language barriers and literacy
- Employment prospects and economic hardship
- Health issues and access to care
- Family and social support (or lack thereof) in potential relocation areas
- Administrative and legal obstacles to obtaining housing, registration, or services
- Security threats or discrimination in plausible destinations
For DHS counsel: To carry the burden on reasonableness in legacy cases, assemble affirmative country-conditions evidence and applicant-specific facts showing it would be fair and feasible to relocate, not merely theoretically possible.
CAT strategy: Remember that internal relocation is relevant to CAT risk. If the relocation analysis is flawed, the CAT determination may fall with it.

Conclusion

Sahni v. Bondi clarifies an important, often-dispositive point in asylum adjudication: for applications filed before the 2020 regulatory overhaul, once past persecution is established, internal relocation is presumed unreasonable and DHS bears the burden to rebut that presumption. The agency’s contrary approach—requiring the applicant to prove unreasonableness because the persecutor was not the state—was legal error. While the Second Circuit affirmed the finding that Sahni could avoid persecution by relocating, it remanded for the agency to reassess reasonableness under the correct burden allocation. The CAT claim was remanded for the same reason.

Beyond its immediate effect on Sahni’s case, the order signals that legacy filings must be adjudicated under the pre‑2021 framework, and that government counsel must affirmatively prove the reasonableness of relocation when past persecution is found. For practitioners, the decision underscores the need to identify the governing regulatory regime, insist on correct burden placement, and build robust records on the practical realities of relocation. Even as internal relocation remains a viable rebuttal tool for DHS, it must be established with evidence, not assumptions or regulatory shortcuts.