Su Hwa She v. Holder
2010 U.S. App. LEXIS 25426
| 9th Cir. | 2010Background
- She, born in Burma, faced persecution from ethnic Burmese officials in the 1960s–1981 era and seeks asylum in the U.S.
- She later lived in Taiwan, obtained recognition as a Taiwan national through a household register and passport, and overstayed in the U.S. after arriving in 1983.
- The Immigration Court designated Burma, Taiwan, and China for removal; the IJ heard her testimony including Taiwan period.
- The IJ pretermitted asylum, withholding, and CAT relief, concluding She could return to Taiwan as a Taiwanese citizen and noting potential climate of firm resettlement, though not explicitly using that term.
- The BIA affirmed the IJ’s decision, agreeing She was firmly resettled in Taiwan prior to U.S. entry, and suggested reopening could be pursued if Taiwan denied travel documents.
- On review, the Ninth Circuit remands for clarification regarding firm resettlement and credibly crediting She's testimony related to Taiwan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether She firmly resettled in Taiwan under 8 C.F.R. § 208.15(a). | She contends the IJ/BIA failed to credit her credible testimony showing she stayed briefly and did not establish significant ties. | The government asserts substantial evidence supports firm resettlement due to long residence and Taiwan nationality recognition. | Remand for clarification; firm resettlement finding remained inadequately explained. |
| Proper scope and explanation when firm resettlement is implicated on review. | BIA failed to provide a clear, reasoned explanation for treating Taiwan as firm resettlement despite credibly asserted facts. | BIA properly relied on the IJ’s implied finding and nationalization as indicative of resettlement. | Remand for a proper, explicit explanation that respects She's credibility. |
| Whether due process requires a hearing on Burma withholding given pretermission to Taiwan. | Pretermission to Taiwan denies a full hearing regarding Burma relief and risks removal to Burma. | 8 C.F.R. § 1208.16(b) governs the proposed country of removal, and Taiwan—not Burma—is the removed term; no due process violation here. | Properly upheld; no due process violation identified under the cited rule. |
Key Cases Cited
- Farah v. Ashcroft, 348 F.3d 1153 (9th Cir. 2003) (review of IJ/BIA when adopting findings; de novo standard on legal questions)
- Hoque v. Ashcroft, 367 F.3d 1190 (9th Cir. 2004) (application of mixed questions of fact and law)
- Vasquez-Zavala v. Ashcroft, 324 F.3d 1105 (9th Cir. 2003) (due process considerations in credibility and factual findings)
- Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006) (firm resettlement burden shifting; initial government burden and subsequent alien burden)
- Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005) (illegal entry and lack of official resident status in third country)
- Cheo v. INS, 162 F.3d 1227 (9th Cir. 1998) (tenuous ties and firm resettlement analysis; burden shifting)
- Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) (removal and reopening considerations; due process)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (asylum eligibility must be supported by substantial probative evidence)
- Mendoza Manimbao v. Ashcroft, 329 F.3d 655 (9th Cir. 2003) (presumption of credibility when no adverse credibility finding)
- Ventura, 537 U.S. 12 (2002) (remand for proper consideration of reopened proceedings)