Maharaj v. Gonzales

im- sоught Congress policy a frustrates MAHARAJ; Devi Sunita Parsad Vinodh cited Doctors Immigrant plement. Maharaj; Maharaj; Meenal Preetika contrary. Be- authority no virtually Maharaj, Petition Maharaj; Vineet period compliance Secretary’s cause ers, statute construction permissible a capricious, we arbitrary is not

that v. not in system compliance that hold to, Attorney vires GONZALES, not ultra with, and is R. conflict Alberto General, Respondent. Act. Relief Nursing CONCLUSION Y. Maharaj; Devi Sunita Parsad Vinodh Maharaj; Meenal Maharaj; Preetika hold that reasons foregoing For the Maharaj, Petition Maharaj; Vineet Secretary’s of the following portions ers, with, and are are in conflict regulation (1) Act: Relief to, Nursing

ultra vires practice the medical from the exclusion Attorney medical Gonzales, shortage-area R. Alberto requirement approval Respondent. General, before occurs practice inter- and national petition visa immigrant 03-71066, 03-73995. Nos. doc- (2) waiver; requirement est interest a national applied tors who Appeals, Court States November waiver before Circuit. Ninth No- were denied applications whose five-year En and Submitted 12,1999, comply Argued vember (3) 23, 2006. March Banc requirement; practice medical com- doctors immigrant requirement 9, 2006. June Filed requirement practice medical plete the period. limitations six-year four or within Doctors lack Immigrant hold that

We of the portion challenge

standing to physi- specialist that exclude

regulations obtaining Dr. Kasthuri like

cians Finally, we hold interest waiver.

national alleged creates permissi- system is compliance”

“double Act Nursing Relief construction

ble vires the Act. ultra is not and REVERSE part

We AFFIRM court the district REMAND

part, and declaratory and enter

with instructions consistent plaintiffs for the relief

injunctive opinion.

with this States. the United arriving in

and before Maharaj’s regulations applicable Under pre- Attorney General application, an alien asylum to granting cluded in another “firmly resettled” who country. 8 in this to arrival country prior (2000). 208.13(c)(2)(i)(B) An C.F.R. if he firmly resettled is considered with, or country another into “entered received, an offer in that while status, citizenship, or type other some into that entry hе shows unless ment” flight necessary part country was a only long there Francisco, stayed he persecution, San (argued), B. Jobe Robert travel, and that arrange onward (signed enough K. Bhakhri CA, Ashwani in ties significant CA, petition- for not establish he briefs), Burlingame, did resi- of his conditions country; or that ers. restricted were so in that dence Nancy (argued), Igoe Marie Alison 8 C.F.R. in resettled. fact that he was briefs), United (signed Friedman E. (2000). § 208.15 Justice, Washington, Department States respondent. D.C., for for four in Canada Maharaj es lived The They worked Fiji. leaving after

years Their there. older a child and had Canada public a free edu- afforded were children family had health cation, entire for there Maharaj applied es benefits. SCHROEDER, Chief M. left MARY Before status refugee PREGERSON, HARRY because Judge, upon acted was application their O’SCANNLAIN, F. on DIARMUID greener was grass they believed RYMER, J. ANDREW safe, ANN PAMELA their Given border. side THOMAS, R. KLEINFELD, SIDNEY Canada, where four-year residence FLETCHER, GRABER, W. P. benefits, SUSAN receive work and able to FISHER, M. RONALD RAYMOND C. for application pending their PAEZ, GOULD, A. RICHARD (IJ) applied Judge status, Immigration RAWLINSON, RICHARD B. JOHNNIE firm resettle- presumption a rebuttable BYBEE, and CLIFTON, JAY S. R. in Cheo opinion upon our ment based CALLAHAN, Circuit M. CONSUELO Cir.1998). (9th As INS, 162 F.3d Judges. rebuttal, no evidence Maharaj provided ineligi- statutorily that he found the IJ Judge. RYMER, Circuit affirmed. The BIA asylum. ble family, Maharaj and Parsad Vinodh Maharaj’s denied court of this panel A Fiji, petition citizens natives Gonzales, Maharaj v. review. petition Appeals Immigration Board of of a review Cir.2005). (9th areWe 416 F.3d 1088 on them (BIA) that denied decision in order en banc petition rehearing this resettled they were the ground Depart- evidence what afresh Fiji consider fleeing persecution after Canada ment (DHS)1 Security Homeland bar must applies to shift the burden Maharaj. produce order to meet its initial burden DHS be able to show that under of showing that mandatory applies, bar Canadian law type permit work such that the burden shifts to thе alien to Maharaj had, or progress of his appli- show that he not firmly resettled. cation for refugee status, or the benefits This easy task, is not an because the cir- received, he manifested of enti- cuit courts of appeals are not of one mind tlement to stay indefinitely. However, the and construing in accor- is undeveloped record points. these As dance plain its language is not entire- such matters are for the immigration ly satisfying. Nevertheless, § 208.15 re- judge to determine in instance, the first flects the agency’s interpretation of firm remand for a new look on a new record. it plainly requires DHS If the mandatory bar does not apply, to make a showing threshold that the alien then the issue arises whether country con- had an offer of of official status Fiji ditions have changed such Ma- permitting him to reside in the third coun- haraj can no longer have a well-founded try indefinitely. others, As have we con- fear of future persecution if returned. Be- clude that this showing can be by made cause the BIA did not make an individual- direct evidence anof offer by issued ized determination about the effect of third country’s government or, where no changed country conditions following the direct evidence of a formal May 2000 coup that Fiji, occurred in we offer obtainable, by circumstantial evi- remand for purpose as well. dence of sufficient force to indicate that the third country officially sanctions the I

alien’s indefinite presence. Once DHS has adduced some evidence of official recogni- Maharaj, Vinodh his wife Sunita Maha- tion of the right alien’s raj, the third and two of their three children are country, the burden shifts to the alien to citizens of Fiji, where they lived until No- show that he falls within one of regula- vember 1987. They are of Indo-Fijian tory 208.15(a) exceptions, (b). At this ethnicity. Maharaj worked aas bus driver stage, the IJ is to cоnsider the conditions wife, and his as a secretary for a high under which other residents of the third school. He was by instructed his boss in live, and how applicant was March 1987 to aid the Coalition Labor by treated comparison. 8 C.F.R. (CLP) Party by transporting Indo-Fijian 208.15(b). So holding, we align our- voters to polling stations for the national selves Judge with Becker’s leading opinion elections. The bus Maharaj drove was for the Court Appeals for the Third visibly partisan on CLP, behalf display- Circuit Ashcroft, Abdille v. 242 F.3d 477 ing CLP placards, posters, flags. and Af- (3d Cir.2001), and with the substantially election, ter the which won, the CLP Ma- similar approach by First, embraced haraj received several threats from native Seventh, Eighth and Tenth Circuits. Fijians, including a threat to kill him and case,

In this the IJ lacked sufficient family his and to burn down their resi- evidence that the mandatory resettlement dence. Maharaj believes that the native Immigration (2002), Naturalization Ser- §§ U.S.C. Although 101-557. (INS) vice has been abolished and its func- agency INS was the sought deport tions transferred Department to the of Home- es, Maharaj generally will refer to the land Security. See Security Homeland Act of government as DHS. 107-296, Pub.L. No. 116 Stat. any sta- safe, have he “didn’t he was victory part CLP Fijians blamed Canada. settled so was tus” polls. busing supporters janitor and a full-time Maharaj worked army, Fijian later, months Two and his wife deliveryman, bakery as a also exclusively of composed almost a nurse’s as- to become training govern- CLP Fijians, overthrew native year for one full-time worked sistant two coup, Immediately after ment. complained Both elderly. caring for Maharajes’ rented invaded soldiers jobs and about the working menial about Maharaj items, up, tied room, stole various refugees. being stigma associated conduct gunpoint his wife and forced people hearing how asked When a week About underwear. in her traffic Maharaj refugees, Sunita they werе knew on her stopped Maharaj later, Sunita se- social “had different replied that dragged who soldiers by two work way to However, when asked curity number[s].” her at raped nearby house into her actual social se- given they were burning arm breaking her gunpoint, she was numbers, clarified that she curity away turned She was cigarettes. her with and that permits to their work referring hospital station police permit by that work “kn[ew] people Fijian soldiers. ethnic Maharaj tes- refugees somehow.” arewe attacked Maharaj was July, June while work authorization that he had tified driving his while Fijian soldiers by native on. Both also going was case refugee his and, money They demanded bus route. like them didn’t in Canada people felt two refused, they broke Maharaj when get good they didn’t very much because unconscious, bruised ribs, him knocked his very low class “a as were seen and work face. on his him with cuts left jaw, and his people.” a nurse at Maharaj treated was the United entered Maharajes The away from but, he was turned hospital in a ear 1991 in March visitors States report the tried when he station police Apparently citizen. by a Canadian driven Indo-Fijian. The he was incident because front in the seat citizens two Canadian family’s Maharaj month, following identification, the Ma- but for down; asked although were burned room was rented Maharaj testified harajes were not. witnesses, Maharaj believes no were there States be- to United Fijians. to move he “wanted native culprits were that the United see what uh, cause, wanted [he] between occurred attacks further No that once explained looks like” States departure family’s August place much arrived, they “liked they however, Maharaj Fiji; from decided Canada, [they] so better than of Hinduism practice his threats Maharaj testified stay.” Sunita 1987, the In November restricted. was becаuse Canada to leave family decided Canada, where Maha- Fiji for family left job.... We good getting “we were family set- Maharaj The raj’s sister lived. have more know, up and to, go you wanted for applied in Edmonton tled So, that’s ourself. money and build status. like Cana- don’t thought we when time four Canada Maharajes lived da.” authorizations work They received years. months the six overstayed When the Canadian insurance and health visitors, Maharaj and his permitted apartment, rented government, to Show with Orders family served were school. public to free their children sent 1996, 19, charging September on Cause gov- Canadian Maharaj testified pursuant being deportable them and that leave him to asked never ernment 241(a)(1)(B) section Immigration Maharaj appealed but, to the BIA (and Nationality Maharaj Act. fam- his appeal his heard, filed a motion to ily derivatively) conceded deportability reopen based new evidence changed requested asylum and withholding re- Fiji conditions in arising out aof moval. coup, and a fax one-page purportedly showing that his Following hearing application Maharaj testified, and wife Canada had been denied. IJ found On February 2003, 27, Canadian reputable BIA affirmed ref- the IJ’s deci- ugee program, very similar sion that the Maharaj family States, but the Maharajes elected resettled in Canada. so, In doing it cited to come to the United States before Burbano, Cana- Matter I. & N. Dec. dian authorities had an opportunity (BIA to re- 1994), which indicates that So, view the found, case. the IJ “they adopted Board the immigration judge’s de- never actually granted refugee sta- Gonzales, cision. Tchoukhrova v. tus, but it clearly was offered them. They (9th Cir.2005) (explaining that just chose not take advantage it, “[wjhen the BIA does not express any not wait until it them, was offered or until disagreement with part any of the immi- therе was a final resolution the prob- gration judge’s decision, but instead cites lem.” Ultimately, he concluded that the Burbano, the BIA adopts his decision in Cheo presumption of firm ap- its entirety”). In the alternative, the BIA plied because Maharajes spent found that Maharaj’s claim failed because significant amount of time in Canada, presumption of a well-founded fear of which is a safe country, and were “at- persecution had been rebutted by evidence tempting to accept an offer of refugee of changed in Fiji. circumstances The BIA status, but elected not wait to for the interpreted Maharaj’s motion reopen to as offer, outcome of that which included over a motion to supplement record, space of four years, right live, to and it denied because the fax cover sheet was work, and most of all benefits under Cana- both unauthenticated and not convincing. dian law.” Maharaj again petitioned the BIA to As the INS past conceded persecution, reopen his case based on the coup that withholding of deportation was only Fiji occurred in in May 2000. The BIA remaining issue. The IJ considered the denied Maharaj’s motion to reopen on State Oc- Department’s 1996 Profile of Asylum 8, 2003, tober noting that Claims evidence of Country Fiji, Conditions for May 2000 coup “was before the determined that Board there was little noor when we our prior issued possibility that decision.” Fur- Maharajes again would ther, the BIA suffer held that persecution given because changes Maharaj that had ineligible occurred for asylum since the 1987 on firm coup. The IJ also ment upon grounds, relied the fact evidence of Maharajes changed requested country renewal of conditions Fijian their pass- relevant to ports, Maharaj’s which indicated that withholding deportation did not seriously fear returning. Convention Against (CAT) The IJ designat- Torture claims. Fiji ed as the country The BIA removal for all concluded that the evidence was members of family except the youngest sufficient to establish prima facie child, who is a Canadian citizen and case of whose eligibility for withholding of depor- country of removal was designated as Can- tation or CAT relief and reopen- therefore ada. ing was not warranted.

967 Elias-Zacarias, 502 v. INS conclusion. BIA decision timely appeals Maharaj 812, 1, 112 S.Ct. 478, n. 481 & and U.S. asylum IJ’s denial affirming the (internal (1992) quotation L.Ed.2d did Maharaj deportation. withholding of INS, 31 omitted); Kotasz also v. see marks mo- of his denial the BIA’s challenge Cir.1994). (9th 847, 851 F.3d brief opening in his reopen tion to See issue. on that appeal waived thus Ill 1256, INS, F.3d v. Martinez-Serrano has discretion Attorney General peti- Cir.1996) (holding that (9th 1259-60 a “refu- who is to an alien asylum grant BIA’s denial address failure tioner’s 1158(b)(1). “refugee” A § 8 U.S.C. argument gee.” in the reopen a motion unwilling to unable or iswho an alien is appeal brief opening his portion origin “because country issue). return waived per- fear a well-founded or persecution II race, religion, na- on account secution social particular in a membership tionality, “firm resettlement” finding of A 8 U.S.C. opinion.” political group, un review that we determination a factual However, of October 1101(a)(42)(A). ‍‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​​‌​​‌​​​​‌​‌‌​​‌‌​‌‌​​‍§ evidence substantial deferential der immi- prohibit 1990, regulations INS Gonzales, 399 v. Nahrvani See standard. officer judge gration Cir.2005) (9th (applying 1148, 1151-52 F.3d “[h]as alien who to an granting re standard evidence substantial country a third firmly resettled” been determination). circuits Other settlement States. the United arriving 229, prior Gonzales, 437 F.3d v. See Sall agree. 208.13(c)(2)(i)(B),2 “Firm reset- C.F.R. curiam); Cir.2006) Firmans (per (2d purposes defined (7th tlement” 598, 601 Gonzales, F.3d jah v. Sec- 208.15. 8 C.F.R. mandatory bar Ashcroft, 381 Cir.2005) v. (citing Diallo provides: 208.15 tion Cir.2004)); v. (7th Salazar 687, 695 F.3d firmly reset- to be Cir.2004); considered (1st An alien is 45, 50 F.3d Ashcroft, 359 if, to arrival (8th prior tled 606, 611-12 F.3d Ashcroft, 374 v. Rife аnother into States, entered he or she Ashcroft, 378 Cir.2004); Elzour with, or while Cir.2004); (10th Ab n. 9 & 1150-51 received, an offer (3d Cir.2001); Mus dille, at 483 type or status, citizenship, (4th 329, Cir. INS, 331 v. sie or she he unless resettlement standard, the BIA’s 1999). Under establishes: up “must firm resettlement finding of entry into that coun- (a) her his or reasonable, That substan by supported if held of his consequence necessary try was the record on tial, evidence probative and he or persecution, flight from her re or whole,” will we and aas considered only as in that remained she would fact-finder only if a reasonable verse on- arrange necessary to long as a different to reach compelled have been asylum officer judge or ("An immigration application for his Maharaj filed 2. Because any who applicant asylum grant 1991, shall not 3, the effective May asylum on 1, April application before or her filed his Immigration Reform Illegal date firmly reset- 1997, been [h]as ... 1996, the alien if Pub.L. ofAct Responsibility Immigrant 208.15.”). The § meaning 30, 1996), tled within 104-208, (Sept. 3009 110 Stat. No. U.S.C. at 8 codified bar was resettlement firm firm resettle- case under we review his 1996, regula- but the 1158(b)(2)(A)(vi) in § 8 C.F.R. set out provisions ment remained firm resettlement tion's definition 8 C.F.R. 208.13(c)(2)(i)(B) defined § 208.13(c)(2)(i)(B) the same. § 8 C.F.R. See 208.15. 968 travel,

ward and that he or she did 49, 402 1312, U.S. 91 S.Ct. 28 L.Ed.2d 592 significant establish ties in that country; (1971) (holding that despite a statutory or change from “firm resettlement” (b) That “flight” persecution conditions of his or her in the Refugee residence in that country 1957, were so Relief Acts 1960, sub- 1965, stantially consciously restricted resettlement by was not irrelevant but was the authority of the country of one refuge of the factors to be taken into account he or she was not in fact in determining resettled. whether a refugee seeks In making determination, her as a consequence of his flight to asylum officer or immigration persecution); avoid judge Soleimani, Matter of shall consider 20 99, conditions I. & 104, under N. Dec. 1989 WL 331872 (BIA which 1989) other residents of (holding regulations re- live; of housing, quiring per- deniаl of admission to a firmly manent or temporary, made available to resettled refugee binding on refugee; the types directors, INS extent of not immigration judges or employment available to the refugee; itself, Board such that resettlement and the extent which the third country was a factor to be consid- permission to hold ered in property evaluating an asylum claim as a and to enjoy other rights and privileges, matter of discretion), superseded by regu- such as travel documentation Abdille, in- lation as stated in F.3d cludes a right entry or reentry, n. 4. edu-

cation, public relief, or naturalization, When firm resettlement was only one ordinarily available to others resident in factor informing a discretionary calculus, country. adjudicator “an could consider factors such 8 C.F.R. 208.15.3 length of stay, work, ability to famil- ties, Rather than ial recite the economic history of conditions in the third here, country, doctrine and the like” in rely of, favor Judge opinion against, Becker’s Abdille, grant Diallo, asylum. comprehensively examines it. 242 F.3d 693. The F.3d at cases most frequently n. 4. & The bottom cited line for doing is that so until are Chinese American 1990, October §§ when 208.13(c)(2)(i)(B) Civic Council v. Attorney General, 566 and 208.15 created the rule of F.2d 321 mandatory (D.C.Cir.1977), and Farbakhsh denial for a firmly INS, resettled alien (8th seeking- Cir.1994) 881 n. asylum and defined resettlement,” “firm (noting that the mandatory bar did not an alien’s resettlement elsewhere only apply to Farbakhsh’s application asy- a factor to be lum, considered immigration which was filed before October judges, BIA, 1990).4 courts However, evaluat- as one commentator has ing claim as a matter of observed, discre- regulations the 1990 “deempha- tion. See Rosenberg v. Woo, Yee Chien the previously siz[ed] paramount question 3. Whether or not an claim Kong must be applying refugee status in the denied, may it be in the discretion of the Woo, United Following States. the court Secretary of Security Homeland or the Attor- found that the aliens' extended residence in ney General. See 8 1158(b)(1). U.S.C. Hong Kong led to the "normal conclusion" Only the mandatory bar at issue in this "they resettled,’ that 'firmly i.e., were not still case. flight.” in 566 F.2d at 328. It indicated that factors other than of duration residence In Council, Chinese American Civic Chinese may be relevant to the firm resettlement in- had aliens fled mainland China spent quiry, including ties, applicant's family "[a]n between years sixteen and twenty Hong in

969 lengthy a type of flight,” in remains the the third in residence and undisturbed firmof inquiry central the and “reoriented pre- a rebuttable country may establish adjudicator focus the to to return right the that he has sumption of of an non offer vel existence the actual shifting thus indefinitely, remain there D. Robert resettlement.” other- show the to applicant burden Resettlement, 36 Firm Sloane, An of Offer 1229; see also Cheo, F.3d at (2004). wise. 47, 57 L. Rev. Int’l Geo. Wash. (9th INS, v. 180 F.3d Andriasian all, have circuits most, not then, but Since Cir.1999). accordingly. the focus oriented upon opinion is the seminal Cheo A case. this pivoted IJ’s decision Malay- mandato lived Cheo, addressed nationals Cambodian We have that times, persecution have or held molestation sia without ry several bar smuggled into per being of of an offer years prior three must be evidence there “[Tjhere in a direct evi- no country. [was] residence manent, temporary, not to whether lived other as applicant way or the dence one where to return v. the right Ali have or had the Cheos and without restriction. peacefully Cir.2005); the IJ (9th but F.3d at Malaysia,” F.3d 780 Ashcroft, 394 their from F.3d to return Ashcroft, right a presumed Camposeco-Montejo conclud- stay. We Cir.2004). three-year that undisturbed (9th The fact reasoning that permissible, not does ed this was authorization longer has travel no a that if place provided then resettle regulations of finding preclude аs firm asylum, such of for denial ground his permitted has applicant ment when applicant resettlement, “may apply,” the INS, 146 Vang v. lapse. documentation by preponder- proving INS, the burden Cir.1998); 79 has (9th Yang v. not does ground that Cir.1996). ance of evidence ab (9th And F.3d 932 residence peaceful years Three apply.5 offer of some of an of direct evidence sence States was in the United arrival Spain; his intent, property connections business flight reasonably proximate matters,” were that those factors Iran; Spain and his persecution in finding these that to rebut insufficient refuge in the stopover en route to was not firmly Id. resettled. were particular aliens at 882. States. also influenced court was 18. The 328 n. resi- continued assurance governmental 208.14(c) (1997), applicable 5. 8 C.F.R. for, under explained, court as the dence decided, pro- Cheo at the time regulation who of 1971 aliens Kong Hong Ordinance vided: legal- years, whether seven there least lived not, assurance reasonable ly [one evidence indicates If firmly deported hence not be would asylum, grounds for denial enumerated n. 17. 328 & Id. at resettled. may apply, the resettlement] including firm proving the burden have applicant shall who Iranian citizen Farbakhsh involved the evidence Soleimani, preponderance by a by Matter Guided Spain. fled to apply. do grounds such supported the evidence court held added). (emphasis Id. finding Farbakhsh Board’s provide: changed to been since had resided he Spain because resettled [one evidence indicates If years fear without than four more there asylum, denial grounds for Iran; enumerated initially intended being he returned apply to resettlement] including firm appli- he filed Spain because in remain the burden have or she shall there; applicant, he applica- his refugee status for cation evi- preponderance by a proving youn- pending; was his refugee status for tion act. so did not or that he she dence living in were younger sister ger brother ground established of firm reset- about temporary status, he was in Malaysia tlement “might apply” because go told to Karabakh, back to and that the it was enough to infer Malaysia al- INS conceded on appeal that he was not lowed the stay Cheos to indefinitely. firmly resettled. Thus, we held that “[a] duration of resi- In Camposeco-Montejo, a citizen of dence third sufficient to sup- Guatemala fled with parents his to Mexico port an inference of in 1982 where he lived in refugee camps,

ment in the absence of evidence to the was not allowed to schools, attend Mexican contrary shifts the burden of proving ab- and could not leave the municipality in of firm sence appli- camp was located until 1996 cant.” M6 when he was given an “FM3” card which explicated haveWe Cheo on several oc- permitted travel outside the municipality casions. Andriasian involved ethnic Ar- right to work. An FM3 did not Azerbajian menian natives of who escaped confer right for apply to Armenia lived in that country off residency. We concluded that the IJ’s years several before arriving in finding of firm resettlement on account the United States. Andriasian and his years sixteen residence Mexico was family Armenia, mocked in someone supported by substantial evidence as attempted to rape wife, the family was Camposeco did not experience the freedom harassed on account of religion, their and lack of persecution that characterized at least one death threat was made. The applicants’ stays in Cheo Vang, BIA had exercised its discretion to deny stay and his was not “undisturbed” be- asylum on the ground of firm resettle- cause he was restricted single to a munici- ment,7 even though it had determined pality, could not attend schools, Mexican the mandatory did not apply. bar We held and was threatened repatriation presumption shifting the burden Guatemala. applicant was inapplicable because Cheo, recently Ali, unlike Most the duration and circum- we considered stances of Andriasian’s stay in whether natives of Armenia Somalia who lived in did not indicate that he was Ethiopia offered years five were firmly reset- refuge. We also noted that tled Ethiopia. The Ethiopian govern- when Andriasian asked the ment never offered assistance legal sta- 208.13(c)(2)(ii) § (2000) C.F.R. (emphasis 326) (internal 566 F.2d at quotation marks

added). omitted). 6. We observed that this was consistent with regulations 7. The in effect when Andriasian the views of the two other circuits to consider was decided provided: question. Chinese American Civic Council two; An application one of the other was denied in the Abdalla INS, (10th Cir.1994), discretion of the Attorney in which General if the petitioner lived alien twenty years can be removed to a United Arab Emirates fleeing which has after offered Sudan. resettlement and in possessed He a "residence” visa/permit. which the would face harm or court found this suggest persecution. sufficient "perma- status, nent residence citizenship 208.13(d) (1999). some oth- C.F.R. provision This permanent resettlement,” er and accordingly was removed effective January 2001. See shifted the onus to prove Procedures, Abdalla to Asylum 76,121, that his 76,- Fed.Reg. "extended, officially (Dec. 6, sanctioned" 2000) Abu (explaining Dhabi did not constitute a 208.13(d) firm resettlement. being removed "from Id. (citing at 1399 Council, Chinese Civic Am. regulations confusion”). to avoid the to shift burden showing suffices (except work couldn’t Alis tus, Also, regulations. held under table) We applicant go to school. or under the Maharaj’s sta- of structure about language аnd is information there plain that “the applicant had asylum an that he that shows require evidence as the 208.15] tus [§ or its status resident pend- and a permanent offered to work Canada permission first country of by the equivalent asylum sta- refugee or application ing AM, firmly resettled.” to be considered left; that there problem is he when tus Abdille, 242 (citing at 789-90 permit, his work what about is no evidence IJ that 485). also held We F.3d at of terms means application, pending or standing Cheo incorrectly interpreted of per- offer of “an requirement 208.15’s an individ- that “where proposition for the or status, citizenship, manent in third years of a number ual resides permanent type some appro- it is being bothered without country hand, Maharaj left the other On ment.” Id. firm resettlement.” presume priate to pursue to what his own volition Canada omitted). (internal marks quotation opportunities better to be perceived he on turned Cheo Rather, explained, we States, invoking pro- after the United and, as contrary to evidence absence but with- available made that Canada cess an she never that Ali testified to a chance authorities giving Canadian out Ethiopia, residence offer of confer, perma- some kind confer, not addi- arise. did not presumption In- status. or resettlement residence nent plain that because tion, emphasized we be- to reason is a sensible tuitively, this an of- requires of the language isn’t States asylum in that lieve residence, an offer fer of persecution. him from protect necessary to compel not residence does temporary under too, question this, begs But firmof resettlement. finding living, work- is whether which regulations, B some applying for ing, and to a formal offer status amounts a rebut- understood case in this The IJ the burden such under Cheo arise of resettlement presumption table in fact resettlеd significant he was spent showing has “where safe in another Maharaj. time amount shifted States, but the United arriving in role, any, if what Thus, must decide we his status information has no the Court case in a plays presumption the Cheo no has that Cheo Maharaj submits there.” an alien lived is evidence there where pre- its case to his because application years, four in a third on the absence premised sumption work, application permitted other, whereas way or the one evidence pending. status of residence kind for some he here uncontested evidence turn, anew us, to consider This leads resettlement. offer of had no firm resettle- interpret how best courts that most counters con- clarify the regulation, ment analysis, Cheo form of accept analyze whether struct under read all but would Maharaj’s approach mandatory applies. bar out definition. countries a few by either entirely persuaded We are C hand, presume one On the position. has not revisited BIA Unfortunately, the “informa- in the absence resettlement opinion published in a of who question begs the tion” under in 1989 decided Soleimani what since adducing evidence burden 972 different,

a discretionary regime. Howev- tioner bears the burden of proving that er, colleagues our on other circuits have such ground does not apply). so, done and we benefit from their wisdom. Second, the threshold showing of an of There general agreement (among cir- fer can by direct, be made indirect, or comment) cuits to on several points: However, evidence. as we shall explain, First, government bears the initial the circuits differ on whether non-offer- showing burden of “an offer of based evidence carries the weight same status, citizenship, some other offer-based evidence making prima resettlement” such that facie, threshold, showing. Compare Ab the firm applies resettlement bar dille, 242 at F.3d 486-87 (adopting an of burden See, shifts to the alien to rebut it. fer-based approach allowing and non-offer- Sall, e.g., 437 F.3d at (noting 233-34 based evidence at the threshold showing the IJ misstated the proof burden of by stage as a surrogate for offer-based evi putting it on applicant gov before the dence when direct evidence is not obtain ernment prima established a facie case of able), Diallo, (same), at 694 resettlement); Diallo, 381 at F.3d 693 Sail, 437 F.3d at 233 (adopting a (holding that after government meets broader, “totality of the ap circumstances its initial burden of demonstrating firm proach” treating non-offer-based evi asylum-seeker may rebut par evidence). dence on a with offer-based the presumption by presenting evidence ‍‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​​‌​​‌​​​​‌​‌‌​​‌‌​‌‌​​‍to Third, a grant asylum, a residence contrary or show that he falls within permit, and travel documents indicating one of 208.15(a) two exceptions permanence of a person’s status are (b)); Salazar, (not 359 F.3d 50-51 the type of direct evidence that satis

ing that government bears the initial fy government’s threshold burden and burden of showing firm resettlement); Ab support a finding of firm resettlement. dille, 242 F.3d at 491 (holding that “[u]n- Evidence of this magnitude order of has der the regulations, the INS bears the been present in virtually published all initial burden of producing evidence that cases where finding firmof indicates that the firm resettlement bar See, upheld. been e.g., Firmansjah, applies, and, should the satisfy INS 424 F.3d at 602 (petitioner had a perma threshold production, burden of both the nent permit residence and entitlement burden of production and the risk of non- return to country third persuasion pur residence then shift to applicant poses); Salazar, 359 F.3d at 51 demonstrate, (petitioner preponderance of the had the evidence, third-country residency stamp that he or she had not pаssport resettled in third Mussie, another had country”); hon twice); (the 172 ored Rife, F.3d at 332 374 F.3d at (holding 611 “[o]nce INS Israeli government met its burden of offered introducing petitioner per evidence indicating manent resettlement that[petitioner] under had the Law of been ‘firmly Return, resettled’ in issued Germany, certificates evidencing [the citi petitioner] bore the zenship, burden of passports); Mussie, demonstrat issued ing, by a preponderance evidence, F.3d at (petitioner granted that she resettled”); had not been see also travel Abdalla, 43 F.3d at (holding that once documentation from that country); Abdal presents la, some evidence (petitioner had a “resi indicating that asylum is unavailable on visa/permit). dence” Farbakhsh the no grounds of firm resettlement, peti- exception, table but it was decided under leading case takes is the Abdille firm reset- regime where superseded Cir- In the Third approach. offer-based factors several only one of tlement readily evident from the view, is “[i]t cuit’s grant deciding whether in considered be prime § that the of 208.15 language plain deny asylum. is inquiry firm in the resettlement element that view the consensus with agree We perma- of of ‘an offer vel non existence the showing initial of burden the DHS bears status, or some citizenship, resident nent status, resident permanent of offer “an resettlement.’ permanent type of type perma- of some other citizenship, or face, explicitly cen- Thus, § 208.15 on its The § 208.15. under resettlement” nent on the analysis resettlement the firm ters require plainly structured is country issued a third question offer was that an evidence some of official of some an offer the alien to to the shifts burden in to reside that the alien permitting status is question more difficult Id. at 485 basis.” permanent it. rebut on a that will showing omitted). Circuit (citation threshold The Seventh of nature alien, Diallo, at 381 F.3d to the view. to shift the same сause burden takes initial (stating “primary that of firm resettlement finding 693 a support simple a contrary. ... is one—whether evidence consideration absence made country has intermediary company. Some or part circuits On this the permanent offer sort of thresh- some focusing the § 208.15 interpret this ment”).8 implicitly employed direct, We offer- on showing primarily old it Cheo, adopted explicitly analysis in resettlement, permanent evidence based doubt, we any To the extent there AM. evidence indirect, non-offer-based allowing Abdille agreement reaffirm if evi- direct surrogate aas to serve firm resettle- focuses plainly § 208.15 inter- Others obtained. be cannot dence vel non the existence inquiry on ment broadly more showing the threshold pret offer. circum- totality of the “the encompass Cheo, alien’s length approach stances,” including with our Consistent of bene- “circumstances country, receipt recognizes third stay Abdille not be may ties, proper- INS which the fits, and business arise in familial formal main, fol- direct evidence decisions to secure In the able ty connections. perma- type of some offer of circumstances” “totality of the lowing a may ... not resettlement, and thus reset- on firm nent from the law stem approach showing facie prima pre- to make able developed under the it tlement as in that 208.15 Abdille, under See 1990, discretionary regime. (noting F.3d at 486-87 of manner.” (describing genesis 485-86 242 F.3d at Cheo). In the a situation faced such analysis). we the circumstances” “totality of status, form Salazar, or some ship, permanent position. See a similar 8. Others have important fac- resettlement] an initial (opining at 50-51 359 F.3d indeed, begin the and, place to evidence "by producing proper be met tor burden could leaving government for- room country’s analysis," resettling but firm resettlement per- the alien affirmаtively offered mally dispositive in not to be offer formal which includes— a term prior manent deci- Eighth Circuit's accord with expansive than —offers potentially more Elzour, Farbakhsh); sion in residence”); Rife, citizenship or "explicit- § 208.15 Abdille that (agreeing with of 8 (stating "the text F.3d at 611 inquiry an offer of on ly centers” [whether this 208.15 makes C.F.R. status). type of official citizen- offered prior resettlement event that direct unobtainable, evidence is importance lar inquiry is whether “the BIA may IJ or find it necessary to he received an actual offer of rely factors, non-offer-based such as the Sall, resident status.” length of an alien’s in a country, (footnote omitted). The gave court two the alien’s intent to remain in the country, reasons, persuasive us, neither pre extent the social and economic ferring the “broader conception ‘firm ” alien, ties developed by the as circumstan- resettlement’ Mussie, reflected Ab tial evidence of the of govern- existence dille, Farbakhsh, and Chinese American ment-issued offer.” Id. at 487. Such fac- Sall, Civic Council.10 437 F.3d at 232. may tors serve surrogate as a for direct First, the regulation refers to “some oth evidence of a formal offer “if they rise to a type er of permanent resettlement” and sufficient level clarity of and force.” Id. thus presumably contemplates that for Again, the Seventh Circuit is in accord. eign statutes which are not the same as Diallo, 381 F.3d at 694 (recognizing that immigration States provisions, and exist, such circumstances but holding a foreign system which does not include that the IJ erred as he neither considered written formal, documentation or state-is whether there all, was an offer at nor sued cards, identification could neverthe suggested that he was using non-offer- be recognized less by immigration judges based factors surrogate).9 as a determining whether an alien Opting for “totality a of the circum- Sаll, resettled. 437 F.3d at 233. And approach, stances” the Second re- Circuit second, “the underlying purpose asy of cently adopted a test under which immi- regulations' lum provide refuge to —to gration judges are to consider “whether desperate refugees who reach our shores petitioner] [the intended to settle in [the with else nowhere to turn —accords with third country] when there, he arrived reserving grant of asylum for those whether he family there, has ties applicants without places alternative of he has business or property connections abroad, refuge regardless of whether a permanence, that connote and whether he formal ‘offer’ of permanent settlement enjoyed legal rights —such been received.” Id. right to work and to enter and leave the country at will—that permanently We remain settled convinced by rea- Abdille’s persons can expect to have. particu- Of soning and approach. regulation de- 9. recognized The First Circuit ties, principle family ered but does not take note of the Salazar, F.3d 50-51 & n. but found ties, fact that in family addition to peti- it unnecessary to disagreement resolve the possessed tioner a permit "residence” visa/ among circuits because the IJ in that did case for the UAE. Eighth Sail notes that the Circuit rely on non-offer-based elements. in Farbakhsh listed a number of factors rele- determining vant to parentheticals Sail notes in that the Fourth the D.C. Circuit in Chinese American Circuit found firm resettlement in Mussie in Civic Council found that asylum ap- Chinese part six-year based on a in a third coun plicants had firmly during resettled lengthy a try, receipt government assistance, of stay Hong Kong, but does not take renting note of personal of a apartment, but does not regime the different under which take note of petitioner, the fact that Farbakhsh who and Chinese American was native and citizen Civic Council Ethiopia were de- and fled cided, lived, Germany worked, importance where she D.C. paid years, taxes for six granted Circuit attached to "the added assurance” Germany Hong and was Kong issued German gave travel ordinance to residents Sall, documentation. years 232-33. It of more than seven would not notes that the Tenth Circuit in Abdalla deported. consid- be received, of ... offer some an purposes “firm resettlement” fining resettlement.” type of have reserved could other mandatory bar necessarily, other Thus, aliens without “firm resettlement” grant of whether “regardless sanctuary an definition, is coextensive places offer. settlement ‘offer’ vel requires a formal the existence 208.15 Section received,” dissent as Sail has been say it doesn’t though even of an non offer Instead, semanti- it doesn’t. suggest, an alien “only” qualifies, offer initial focuses expressly § 208.15 cally, country with enter a third possibly cannot with, the third entering inquiry work, residence, or social history there of, an receipt offer if differently, permanent re- Put services. after It is only resettlement. an of- without acquired can settlement shifts that, structurally, the residence, employ- through long-term fer permits consid- alien and the burden benefits, ment, receipt stay in the conditions eration never obtain “some could ex- Circuit country. As Seventh resettlement” permanent type do al- Diallo, regulations “[t]he plained living there. Yet country and entering the fac- to consider judge immigration low the that contemplates plainly regulation the in the spent time length as the tors such country a third may have “entered” extent type and housing, country, type per- other of “some an offer with among oth- employment, refugee’s as with an as well manent resettlement” only making preliminary a ers, after but status” of “permanent offer per- non of offеr vel genuine of a finding sum, disagree that we “citizenship.” when only then manent to read rewritten can regulation be the that to demonstrate applicant seeks the is one an “offer” the existence that exceptions.” the two one of falls into she means, of means, not the exclusive Abdille, at 693; at see at 985. Id. resettlement. firm 208.15(b) proving prompts § (explaining non- the consider enumerated IJ to said, ap- under Abdille This determining elements offer-based ele- non-offer-based adopt, we proach applies). exception at considered may still be ments instead colleagues would dissenting Our that direct if DHS shows stage threshold exam- offer or—“for of’ mean “offer have Al- unobtainable. an offer is evidence in the the alien’s length of ple, the solution, this surro- perfect a though not history work the alien’s country, safe third regulation’s comports with route gate alien’s country, or the safe third in the possi- focus, yet allows offer-based the safe advantage of ability to take is available. direct evidence that no bility op. at 981. Dis. services.” country’s social alternative, given Given “firm resettlement” They suggest that adopted when § 208.15 of an receipt offer coextensive bar, we are not mandatory became ment regu- because permanent be should inquiry persuaded is the an offer not state does lation plain regulation’s beyond the broadened showing firm resettle- means of exclusive burden-shifting own beyond its focus 4 & and because ment, n. id. at 981 of a the focus capture in order scheme “firm resettlement” otherwise, phrase non-burden- discretionary, superseded, n. 4. at 981 necessary, id. be wouldn’t Diallo, F.3d at See regime. shifting “firm resettle- However, § 208.15 defines “totality of the (observing that 693-94 who “entered of an alien in terms ment” outdated). analysis is now circumstances” with, in that or while into another If direct evidence is unobtainable we While also acknowledge the dissent’s and circumstantial evidence is received as concern about opening “the door to ramp- surrogate the threshold stage, in or ant country-shopping,” op. dis. poli- der to shift burden to cy arguments, the alien the no matter forceful, how do evidence must be of sufficient justify force to not jettisoning the plain language of show length residence, that the alien’s regulation. Tightening up criteria intent, and ties in the third indi for firm resettlement does not seem an cate that the third country officially sanc unreasonable thing for inter- tions presence. the alien’s indefinite preting a mandatory do, bar as it focus change; does not it remains on re makes sense to require a more definitive ceipt of an resettle showing resettlement when offer ment. Firmansjah, See F.3d at 602 per se unavailable than when it (distinguishing the use of circumstantial ormay granted as a matter of prove evidence to an offer from the totality event, discretion. In any the agency can test). of the circumstances always recede from the Abdille construc- tion changing language 208.15, recognize so, We that even 208.15 if it shares the dissent’s Finally, concern. holes; puzzling it say fails to what “offer” we note that at the end of day, means, and leaves “some Attorney General retains discretion to resettlement” undefined as deny asylum even when denial is not re- well. present For purposes accept quired by the firm resettlement regulation. meaning common of “offer” as “[t]he act or an instance of presenting something for Accordingly, we conclude that un acceptance.” Black's Law Dictionary plain der the language 208.15, §of DHS (8th Ed.1999); see also Webster’s II New bears the initial burden of showing that College Dictionary (1995) (“offer” is of the third country issued offered, “something proposal, a sugges- as to the alien a formal offer of type some of tion, bid, invitation”; or to “offer” is “to official status permitting the alien to reside put before another for acceptance rejec- or indefinitely. This burden tion”). “The ‘some other type of perma- can by be met direct evidence an offer nent resettlement’ language likely was of permanent resettlement, added to account for great variety in or if DHS shows that direct evidence of a types names and of permanent offers of formal unobtainable, offer is then surro settlement globe countries around gate, non-offer-based evidence suffice and was not meant to be a catch-all that for the initial showing if it is of sufficient would requirement undo the of a govern- force for the IJ reasonably to infer that ” mental Diallo, ‘offer.’ 381 F.3d at 694 n. the third country officially sanctions the include, 5. It could for example, the type of alien’s indefinite presence. As DHS bears ordinance the D.C. Circuit sig- found the burden of showing receipt offer, of an nificant in Chinese American Civic Coun- it also bears the burden of showing that cil for the gave assurance it of the alien’s the non-offer-based evidence upon which it ability stay continued to in Hong Kong signifies relies some kind of entitlement to without deportation living after for there stay indefinitely. case, In either once years. seven Apart this, leave points DHS to some evidence of an offer of possibilities for “some other type” of some type permanent permanent resettlement to evolve on a burden shifts to applicant t» show that ease-by-case basis. the nature of and ties was too country’s permanent offer [A] of his residence tenuous, the conditions or providing may consist resettlement reset- restricted, him be to too through process aliens class of defined tled. perma- claim entitled to they are who is If an alien entitled refuge. nent D refuge another permanent that Maha- Here, both IJ found country’s on that or her back turns his refugee “actually granted never raj was advantage of its take failing to offer him”&emdash; offered clearly was status, it relief, he or she obtaining procedures wait until not to Maharaj “chose and that eligible for generally tell cannot We it offered.” contrast, a mere In the United States. can we offer, not. Nor or an IJ found receive might an alien possibility that offered, status,” if even “refugee tell what coun- a third refuge through permanent resi “permanent terms signifies enough to is not try’s asylum procedures type of or “some other dence” permanent reset- offer of constitute law. Canadian under resettlement” tlement. words, In other Elzour, Maharaj show does The record if the alien is an “offer” may have kind for some applying process in the all resettlement entitled status, walked out the alien is for process in the that remains offers that Canada But the fact it. act. The ministerial complete some refu- type of for some applying process if, instead may apply bar firm resettlement not the same asylum status gee accepting process completing the Elzour, the itself. status offering the offer situa- the similar addressed Tenth Circuit entitled, choos the alien alien is which the nearly spent four who an alien tion of the burden DHS away. bears es to walk Syria fleeing after Canada years in indicates adducing evidence States. Elzour entering the United pro attaches Canada significance ap- to failed asylum, but for applied to engaged, Maharaj was which cess in applica- His mandatory hearing. a for pear Ab application. his See of the progress for denied, petition as was a tion was no there is As dille, at 489-92. status based residence permanent indicate in this record to evidence citizen. Consider- ato Canadian marriage permanent reset to Maharaj was entitled ability apply to ing Elzour’s Canada, no there left when he tlement permanent of “an offer” itself asylum was perma of find an offer to upon which basis refugees noted that the court shift the bur and so to resettlement nent a harbor in reject unilaterally safe may not must Maharaj. We to of rebuttal den in seeking favor can be devel the record so that remand However, Maharaj the court States. to whether

the United oped respect refuge to accept permanent whether the upon this explained, depends chose his back entitled, turned ref- he was claim which was entitled it.11 possibility the mere only on asylum: possibility just had the uge or Safe3rd_final textl2-5-021.pdf, be- Maharaj, we applicable to Although not 2004, 29, recognizes December effective Agreement Gov- came Between The note that systems of generous ‍‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​​‌​​‌​​​​‌​‌‌​​‌‌​‌‌​​‍of America and "offer States countries both United ernment Cooperation in provides, suoject Canada for protection” and Government Refugee Claims Status arriving the Examination aliens exceptions, that U.S.-Can., Countries, port-of- Third Nationals border at land from Canada States 5, 2002, http: //cana- available Dec. seek Canada to returned to entry be shall _usa/ .gov/content/can da.usembassy 978

Likewise, the IJ’s determination was not tions the first instance. INS Ventu based on substantial evidence to the ra, extent 12, 16-17, 537 U.S. 353, 123 S.Ct. that he found resettlement shift- (2002) curiam) L.Ed.2d 272 (per (requiring ed Maharaj the burden to on account of remand where the BIA had not decided years’ residence, four work, and benefits. the “changed question). circumstances” showing DHS made no that offer-based 8, In its October denial Maharaj’s evidence Thereforе, was unobtainable. it motion reopen, the Board stated that had to adduce direct evidence of an offer of information about the 2000 coup was be some type resettlement. A it fore it when issued prior its decision. four-year sufficient, residence alone is not Yet, February BIA’s 2003 decision Diallo, see 696-97, F.3d and we affirming the IJ’s denial of cannot tell what Maharaj made eligible for withholding of removal states only “that received, the benefits he or what his work the record rebuts assumption of future permit allowed, and whether eligibility for harm,” it gives no indication that the either means that Canadian authorities BIA considered evidence of changed condi recognized thereby right indefi- tions following May In coup. any nitely that country. One can be allowed event, the BIA did not “make an individu work, benefits, or receive without being alized determination as to the effect of offered permanent resident status or some country conditions,” Lopez v. Ashcroft, 366 (9th Cir.2004), and remand is country, this suppose also in Cana- appropriate to allow the BIA to consider da. But the is undeveloped record on this the issue in way that allows princi point as well. pled appellate review its decision. The IJ’s determination according addition, we note that “remand could lead ly support, lacks and we remand for fur presentation of further evidence of ther proceedings consistent with opin current in [Fiji].” Ventura, circumstances ion. 18, 123 537 U.S. at S.Ct. 353. IV V

Maharaj also that, contends in light of We conclude that the IJ’s determination May coup Fiji, eligible he is that Maharaj was firmly resettled withholding of lacks removal it because is more support. grant We petition, likely than not and re- that he will persecuted mand so that the upon IJ Fiji. his return to consider whether Depart- State evidence that Country Maharaj ment right work, had a Report on to Human Rights benefits, receive for 2000 catalogs apply Practice and for against violence some kind refugee Indo-Fijians and specifically status states that in Canada near Maharaj’s areas constitutes “an province home offer of resi- “experienced dence, Nausori a particularly citizenship, high or some violence, level of including arson, looting, resettlement” ap- under and physical proach intimidation against directed that we adopted. have We also Indo-Fijians.” However, we cannot make remand give to the IJ an opportunity to a determination on changed country condi- make an individualized assessment of the protection under immigration Canadian other, law. both, ture in one or the but not coun- Agreement The indicates that Id.; an alien tries. see 1158(a)(2)(A); also 8 U.S.C.

'apply asylum, withholding for of removal or 208.30(e)(6). 8 C.F.R. protection under Against the Convention Tor- jobs working and menial Maharajs disliked Fiji in to being returned Maharaj of to risk to their stigma attached there was that felt country conditions. changed light freely they worshiped refugees, status GRANTED. PETITION developed friend- temple and a Hindu non-Fijians in and non-Indians ships with O’SCANNLAIN, with Judge, Circuit Canada. RAWLINSON, KLEINFELD, and whom (“IJ”) concluded Judge Immigration The join, CALLAHAN, Judges, Circuit persecu- Maharajs lived free from that part: in dissenting and concurring part in indeed, Canada; undisputed it is in tion consider remand to that a agree IWhile there, Maharajs en- living while that Fiji in is warranted circumstances changed freedom, safety stability, and joyed Maharajs’ request respect Yet the immigrants. to Canadian offered removal, respectfully I must withholding of with the vocational Maharajs, dissatisfied holding with re- the court’s from dissent Canada, crossed bor- opportunities asy- Maharajs’ of the to the merits spect Maharaj Mr. States. into the United der Immigration I believe petition. lum Unit- “wanted move explained he (“IJ”) because, uh, concluded to see wanted Judge properly [he] States ed like” and looks firmly resettled United States been Maharajs what had a job. never thing was We “main view, my opinion Canada. Maharaj testified job.” Mrs. good of resettle- the law misconstrues court job .... good We not getting “we were to an alien ment, asylum process our opens know, have more to, go up and you wanted persecution, fleeing is not who So, that’s ourself. money and build country-shopping. invites abusive like thought we don’t Cana- when we time arrived, they “liked da.” When I Canada, [they] than so much better place Fiji having Maharajs fled The here.” decided see persecution, substantial experienced Maharajs States, the United Once 964-65, of their account Maj. Op. permit- month window the six overstayed family settled ethnicity. The Indo-Fijian with Or- visitors, served and were ted Canada, refugee status sought it where Cause, them with charging to Show ders Maharajs asylum. The applied de- family conceded deportability. undisturbed, openly, legally and lived asylum and requested portability, time years, during which Canada four hearing Mr. After withholding of removal. janitor as a fulltime Maharaj worked Mr. IJ con- testimony, the Maharajs’ Mrs. Maha- while Mrs. deliveryman, bakery although Canada has cluded nurse’s training to become raj received that of the similar program caring for full-time and worked assistant voluntarily chose to Maharajs States, the rented Maharajs elderly. The authorities Canadian leave Canada before pub- to free Indeed, their children apartment, sent when petition. their reviewed school, government- you received free could possible lic “it’s asked and Mrs. Both in Canada refugee care. Mr. status health have provided answered, it,” Maharaj Num- Mr. know Maharaj Social Insurance even be.”1 the “Could Though work authorization. bers and applicatiоn was asylum your decision on Maharaj the had attorney and Mr. INS 1. The following dialogue: in Canada? Q. you've anytime left No. you at after A. Have what the attempted out to find Canada The IJ concluded that Maharajs type other permanent resettlement” actually “never granted refugee sta- must be read the context preced- tus, clearly but it was offered them. They ing See, examples. e.g., City Circuit Stores just it, chose not to advantage take Adams, 114-115, 532 U.S. 121 S.Ct. not wait until it them, offered or until (“ ‘[Wjhere (2001) 149 L.Ed.2d 234 there a final resolution of prob- general words specific follow words in a lem.” Because the IJ concluded that statutory enumeration, general words Maharajs had been firmly resettled are construed to only objects embrace sim- Canada, IJ, in my view quite properly, ilar in objects nature to those enumerated ” denied because of statutory ineligi- by the preceding specific (quoting words.’ bility. §§ See 8 C.F.R. 208.13(c)(2)(i)(B), 2A N. Singer, Sutherland on Statutes and 208.15. The IJ also Maharajs’ denied the Statutory (1991))). Construction 47.17 request for withholding of removal on the Here the preceding objects “permanent — grounds of changed Fiji, circumstances in resident status” and “citizenship”—are are, quite properly, remanding to non-temporary which, classifications if the IJ. granted by a third country, relieve the persecution fear of in the native country.

II Similarly, “some type other permanent Here the IJ concluded resettlement” given can include informal under- that — standings, circumstances of Maharajs’ as might be seen four-year in less devel- sojourn oped immigration systems, Canada —the as Maharajs majority had concedes, firmly been resettled but need despite not necessarily a concession be so Rather, limited. phrase could also en- Maharajs’ compass pending types others application “permanent reset- there tlement” yet short been of full citizenship, authoritatively long so resolved. I suggest circumstances of the arrangement reversing are legal IJ’s such that conclusion, not at majority being risk of misreads the firm deported back to his country. native resettlement in two respects. First, it too narrowly construes the catch- Moreover, the regulation by plain its all provision. Second, it ignores histo- text does not require that the alien actual- ry and purpose of the regulation by im- ly permanent receive status, citi- properly reading the list of factors which zenship, or some other type the IJ apply can in determining “firm re- resettlement; rather, only it requires ” settlement” as exhaustive. Thus, of such. while “some other “offer type resettlement” is a mini-

A mal requirement itself, regulations plain The text of §§ 208.15 and 208.13 require even less: a mere offer. The allow the significant IJ latitude for finding regulation’s on focus rather “offer" that an alien “has been resettled” than on receipt of “some other type of based not only on “offers” of permanent resettlement” underscores that resident status or citizenship, but also on the question turns wheth- the basis of “some of perma- er the alien remains fear being re- nent resettlement.” phrase “some persecution turned to in country. native Q. Q. You you So, don’t know what status are in? possible it's you could have You don’t know it if was denied? You status in Canada and not even granted? don’t know if it was know it? No,

A. I don't. A. Could be. disposi- not “offer” is a formal of the lack clearly empow- regulation the of text The stay aliens’ of the the conditions where tive inquiry. an just such make the IJ ers deporta- no risk of there was that are such circumstances, con- I would these Under leave.2 chose tion when into such cate- Maharajs fall the that clude offered, and had they were accepted, gory: B Canadian protection ongoing the Í asy- their processed while it government detail, in more regulation protection the Though parse that To application. lum consid- “An alien is formal that in a states 208.15 culminate point may at some or she status, if resettled when ered to or other citizenship [he .... of “offer” resi- received, permanent of offer there an Maharajs’ claim has] the evaluated the IJ type some other status, citizenship, or they would that dent to indicate nothing the While resettlement.” permanent to resettle permanently allowed not be finding provides plainly reasonably regulation deter- Indeed, IJ the Canada. status, resident just an “offer” not Maharajs were the mined perma- rather, other status; citizenship, temporary offered automatically con- resettlement nent offered, accepted, they were indefinite for applying the alien from clusively bars crucial. is The difference resettlement. not state definition, regulation does asylum, the status, en- temporary While firm reset- showing establishes only there- such ending point tails a definitive —and is Rather, regulation because immigrant tlement. that the necessarily means fore example, limited, factors-—for other not again flight be in will —indefinite in the safe Here, alien’s length of the such worries. not create ment does history alien’s work country, the refugee applica- third asylum and Maharajs’ ability alien’s country, or the gov- the safe the Canadian with pending tions third coun- safe advantage of the to take as Canadian time such Until ernment. IJ’s may inform the try’s social applications, acted on services— fac- These analysis.3 resettlement in Canada. remain Maharajs were free- discretionary and do however, tors, are temporary, is not arrangement, which This appli- necessarily disqualify definition regulatory under the qualifies cant.4 Simply, so find. properly could and the IJ concludes, majority granting, as 4.Even event, irony to the is a certain any there

2. is a an non of "offer” vel the existence circum- holding, under these majority’s " in resettlement the firm ‘prime element stances, Maharajs never ” (quoting Abdille was, Maj. Op. at 973 quiry,’ It permanent resettlement. "offer” Cir.2001)) (3d Ashcroft, 242 all, voluntary choice Maharajs’ after added), insuffi is conclusion applica- (emphasis such their prematurely abandon definitively. to construe cient Rather, tion in Canada. whether, as the still consider we must concludes, non of vel the existence majority "of- we misread suggests that majority 3. element the exclusive an “offer” should be Op. at Maj. "offer or." fer of” Though the inquiry. resettlement the firm course, majority agree, with While we starting proper "offer” of an existence applies if mandatory bar resettlement, ac considering firm place when resident sta- "an offer receives of an the existence regulations, cording perma- type tus, citizenship, or some (of many) methods merely one resettlement,” "offer” (emphasis add- § 208.15 nent immigrant been determining showing ed), agree that such we do reading the existence By firmly resettled. rooted My analysis is not will suffice. pre "or,” an "offer” in the rather of "of” substitution resettlement,” cisely "firm coextensive exclusivity. plain regulation’s lack 982 interpretation

This fits the purpose with still entertains other means determining Refugee of the Act: help those fleeing whether refugee the is fleeing persecution. persecution. As the facts of this case Such interpretation is only one con- show, it is not those who have been sistent with Supreme Court’s sole dis- permanent offered resettlement that are cussion of firm 1971, In resettlement. longer no fleeing persecution. The Maha- Court considered the case Yee Chien rajs did not receive a formal “offer” of Woo, a native China who had fled of.Red permanent resettlement; yet, considering Hong 1953, Kong where he lived stay, circumstances of their it is clear 1960, until when he moved United fleeing persecution. were not States. See Rosenberg Woo, v. Yee Chien Over the course years, of four Mr. and 49, 50, U.S. 91 S.Ct. 28 L.Ed.2d Maharaj Mrs. employed (1971). Considering the 1957 exten- social services form health care sion of the Refugee Act, Relief which omit- and education. On the basis of these fac- ted reference to “firm resettlement,” the tors, the rightly IJ determined that Court held that the firm resettlement doc- Maharajs firmly had resettled in Canada. trine still persisted in the new definition of “refugee” because “both the ‘firmly terms resettled’ and ‘fled’ closely are related to the central theme of all years refugee The focus of the firm resettlement anal- legislation creation of a haven for the —the ysis has always been—and remains— world’s homeless people.” Id. at refugee remains in flight. S.Ct. 1312. The Court explained that: Thus, the regulation requires that the ad- judicator consider whether there is an “of- [The act] never open intended to permanent fer” of resettlement aas means refugees States to who had found of determining whether re- shelter another nation and begun had however, mains in flight; the regulation to build new lives. Nor could Congress majority dramatically, unnecessarily, contends, majority however, that this wrongly decreases the universe factors that interpretation is regula- inconsistent with the can finding to a contribute of firm resettle- tion, "plainly contemplates that an ment. may have 'entered' a country Indeed, by reading the "firm resettlement” an offer of 'some permanent receipt coextensive with of an "offer” of ” Maj. op. resettlement^]' major- at 975. The resettlement, permanent majority renders ity is mistaken. The states that phrase meaningless. "firm resettlement” "An alien cоnsidered to be resettled regulations If the equate intended if ..he or she entered into another exactly resettlement with the existence of an with, "offer” for in that while then received an why offer should phrase appear "firm added). resettlement” ...” (emphasis 208.15 Plainly, regulations in the at all? majori- Under the forms ty’s (c)(2)(i)(B), reading, § 208.13 which bars others, however, "entr[y]”; received on asylum applications "firmly for those reset- may be received later. language This broad tled,” asylum applications should bar way precludes and, in no anything, if de- — offer, those who have received an interpretation mands—an that allows for con- § 208.15 per- should then define an "offer of sideration types of certain reset- manent resettlement.” is not That what the tlement that accrue over Simply, time. regulations say, though that the effect regulation’s “or” phraseology clearly encom- view, majority’s interpretation. my passes variety types text and of resettlement regulations structure of the treat "firm majority concept giving resettlement” as a errs in broader a narrow reading than the existence of an "offer.” plainly to such broad language. 55, Id. at 91 S.Ct. and “fled.” resettled” flight in refugees to make intended have of the compete with all 1312. persecution from 10,200 refugees for resettled world’s “firm exegesis of Supreme The Court’s year each afforded permits and entries with is consistent resettlement” in Woo interpreta- an Such statute]. [the under of, continuing origins both em- lofty goals would subvert tion asy- refugee our and supporting, rationale refu- our pattern in .of the whole bodied congressional dec- original The lum laws. legislation. gee objectives for the policies laration of also 56, Court 1312. The at 91

Id. S.Ct. 96-212, 1980, Pub.L. Refugee Act of No. legal’ stan- “the correct announced (codified in as amended scat- 102 94 Stat. a petitioner in cases where apply dard” U.S.C.), recognized 8 sections of tered petitioner’s persecution fled policy the United it is the historic States] the United presence [in “physical urgent to the needs respond States reasonably proxi- one which must be in their subject persecution persons following a not flight and one mate to the further Congress homelands.... interrupt- time point of remote in flight policy of the Unit- that it is the declares a third intervening residence by ed nations to encourage all ed States constituting a termi- reasonably op- assistance resettlement provide in search original flight of the nation to the fullest ex- refugees portunities (inter- 56-57, 91 S.Ct. 1312 Id. refuge.” possible. tent emphasis omitted and marks quotation nal § Refugee Act added). interna- course, consequence of the Of amendments, the 1990 adopting the nature our obli- cooperative tional importance recognize the intended to INS Act is that our Refugee under the gations analyzing an “offer” to existence of necessity, became by obligations, practical not, however, I would firm resettlement.5 are limitations most obvious limited. The step and additional an unwarranted take Attorney on the discretion bestowed to make that the INS intended conclude reject asylum or to to accept General of an “offer” vel non existence refugee, see qualified application of a sine the exclusive resettlement 1158(b)(1), the numerical U.S.C. analysis. The refugee qua non refugees that ceiling on the number should in Woo guidance Supreme Court’s each the United States admitted into must “firm resettlement” ignored; not be 1157(a). limita- These 8see U.S.C. year, eye towards be understood still obser- with the Court’s are consistent tions “central whose refugee policy, overall flight “refugees in Woo that “firmly concepts vation to the is related thеme” However, majority ar- assuming, even heavily 1990 amend- majority relies 5. The " 'deemphasiz[ed] gues, amendments pre- regulations, and discounts ments question whether paramount previously majority concludes precedent. The ” flight,' and instead refugee remains ... an alien’s “until October " existence vel non actual on 'the con- focused to be a factor ment elsewhere ” resettlement,’ Maj. BIA, an offer immigration judges, the sidered Sloane, An (quoting D. Op. Robert at 968-69 as a evaluating claim the courts in ' Resettlement, 36 Geo Firm Maj. Op. 968. After Wash. Int'l matter of discretion.” Offer L. Rev. 47, (2004)), preclude that does 1990, however, regula- its amended “the INS ques- reality providing concerning firm tions in- of an "offer”—is upon tion—and existence mandatory denial for a question of whether with the tertwined v. Ash- finding resettlement.” Abdille of firm flight. Cir.2001). 477, (3d remains croft, 483 n. persecution” should not be forced to com- ment” Malaysia might apply, so the pete with “the world’s settled refugees,” Cheos had the burden of proving that 402 U.S. at 91 S.Ct. for the finite they were resettled. That places number available the United enough that, time so in the absence year. Further, States each limita- these of evidence to contrary, it would be a tions importance underscore the of our reasonable inference from the duration task: refugee system Our is intended for Malaysia allowed the Cheos to stay those flight, in and in need of a safe har- indefinitely. A duration of residence in bor; contrast, immigrants in who volun- a third country sufficient to support an tarily choose to perfectly abandon a safe inference of permanent resettlement in haven abusing be the generosity of the absence of evidence to the contrary Refugee the Act.6 shifts the of proving burden absence of firm resettlement applicant. We must consider these policy goals added) Id. at (emphasis 1229 part limitations as оf a proper (citing inter- Abdal INS, pretation 1397, (10th §of la I v. 43 208.15. cannot F.3d 1399 an support Cir. 1994), interpretation Am. regulations Chinese Civic Council v. General, analysis Attorney constricts the 185 single 1, U.S.App. ele- D.C. ment, 321, (D.C.Cir.1977)). when the text of 328 n. regulations, their We did not purpose, Supreme state that prece- the Cheo presump Court point requires dent tion to a an immigrant prove broader construction. that he or she has offer,” “not received an rightly required the immigrant prove that he she is “not law, Under our own case resettled.” Criti long ago therefore, cally, jettisoned Cheo concluded that notion that re- 208.15 quires facts besides the analysis existence of exclusively “offer” aimed can show firm existence of an “offer.” In resettlement.7 our seminal subject, INS, case on the v. Cheo 162 F.3d Our later case law applying Cheo is con- (9th Cir.1998), Meng Ly Cheo and sistent with a broader reading of the regu- Meng Cheo, Heng nationals, Cambodian lation. In INS, Andriasian v. 180 F.3d fled Vietnam Thailand, and thence to (9th Cir.1999), petitioner Az- fled they where stayed years three erbaijan with family, escaping Arme- entering the United through States Mexi- nia. Id. at 1036. family moved be- co. concluded, Id. 1228. however, We Russia, Armenia, tween Ukraine, that: nine times over the next forty-four years peaceful

Three months, estab- residence though petitioner testified that lished ground of “firm resettle- the family did report any substantial 6. Not surprisingly, imported Indeed, ‍‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​​‌​​‌​​​​‌​‌‌​​‌‌​‌‌​​‍we have pol this other Circuits have understood our icy objective perti into case law. our Most precedents perfectly example, well. For INS, nently, Yang (9th 79 F.3d 932 Seventh Circuit explicitly rejected Cheo and 1996), Cir. applicants sought asylum from concluded primary that "the impor- most Laos, having spent years fourteen unmolested inquiry any analysis tant of firm resettle- subsequent fleeing France Yang Laos. ment is stopover noted that the statute urgent is aimed at "the has made of” offer "of persons subject needs of persecution Ashcroft, resettlement.” Diallo v. homelands,” 939, their citing id. at Refugee 687, (7th Cir.2004) 693-94 (explicitly reject- Act of persons and noted that Cheo); ing Firmansjah, 424 F.3d at 602 firmly resettled elsewhere "are definition (same). longer subject persecution.” no Id. it was the destination which stopover; Id. at 1039. in Armenia. living problems and did so.8 intended to resettle first basis, concluded the IJ On in Armenia. firmly resettled petitioner law, sum, in accor- prior our case reversed, that firm resettle- concluding We language regulation, of the dance with appli- asylum, unless “precludes ment variety of a of fac- allowed consideration that his can demonstrate cation Cheo tors to show resettlement. he could only until country lasted analysis on put the focus properly the con- travel or that for further arrange resettlement,” than “firm rather country would life in that ditions of perma- non of an “offer” for existence vel This in at 1043. Id. unduly restrictive.” our Again, based on nent resettlement. ad- consideration of way precludes no text, history, and structure precedent, to determine factors ditional Supreme Court regulation, of the Indeed, firmly resettled. petitioner agree regula- I cannot precedent, expla- with Woo’s is consistent Andriasian factor; focus on one requires tion exclusive that: nation rather, an “offer” is one the existence of firm proving of resettlement —and escape their means refugees make many it is not the if shown—but in successive is determinative persecution freedom from proving of country only exclusive means come to this stages and way. stops ment. along the Such stops after that the refu- necessarily mean

do C these shores has aim to reach gee’s ... The abandoned. any sense been regula- reading of the proper Under in this persons of such presence tions, may be consid- variety of factors reasonably proxi- “one which is is not firm reset- analysis of part ered as point is “remote in flight” or mate to offered petitioner If the has been tlement. intervening by interrupted time or status, citizenship, or permanent country.” in a third residence type another “firm resettlement” is established then 91 S.Ct. 1312. Unlike at 57 n. U.S. denied, unless Woo, must be asylum petition warning in Court’s Supreme that one of the establishes itself, petitioner in Andriasian meanderings 208.15(a)-(b) §at exceptions provided two Maharajs stayed in Canada—-and Canada However, perma- if no “offer” apply. It is clear from years. four alone—for status, citizenship, or other nent resident not a mere facts that Canada was these Cir.2005), (9th was not simi- inhospitable environment in an Ashcroft, F.3d 8. Ali v. cites, simply Maharajs. repeatedly majority larly to which the situated case. In apply to the facts of this does not reasons, Camposeco-Montejo v. For similar Ali, refugee, spent petitioner, a Somali Cir.2004), (9th inap- Ashcroft, 384 F.3d 814 Ethiopia as an undocumented years in five case, peti- plicable. As we noted in arrange to a safe attempting to travel experience "certainly [the did not tioner offer her that would third complete lack country] the freedom Ali, at 783-84. Ali 394 F.3d resettlement. persecution' that seemed to of 'molestation that Ali properly concluded that "the fact stays in Cheo and applicants’ characterize govern fortuitously detection evaded Cheo, (citing 162 F.3d Vang.” at 820 Id. Ethiopia living illegally does ment while 1228). various restrictions Because of the firmly finding that Ali was allow for a petitioner, by that suffered contrast, and difficulties the Maha- Id. at 790. In resettled.” under barred application would not be freely soci rajs openly in Canadian lived 208.15(b) regardless. Ali, illegal, worker ety. undocumented as an made, aрpeals; regrettably, majority fol the IJ still consider the facts of the lows the weaker line the Third and totality case to whether the determine Circuits, Seventh rather than the more peti circumstances indicate Second, persuasive Fourth, view of the firmly tioner had resettled in the third Eighth, and D.C. Circuits. Second Cir country. interpretation This fits with the opinion cuit’s in Sall v. Gonzales—the asylum policy, concept broader most recent discussion of this issue—the asylum is for those in need. See Sall petitioner was a native and citizen of Mau (2d Gonzales, Cir. ritania who Senegal. fled to 2006) curiam) (per (noting that “the under stayed 231. Sail in a camp Red Cross for lying purpose asylum regulations —to years, four-and-one-half then moved to the provide refuge to desperate refugees who Dakar, capital Senegal, stayed where he reach our shores with nowhere else to for another nine months paying reserving grant turn —accords with transportation to the United States. Id. applicants for those without alter The IJ concluded that ineligible Sail was abroad”); places refuge native see also because he had resettled (noting id. that while aliens physically in Senegal, having approxi lived there for present in the generally United States are mately years impediments five with no apply asylum, allowed to 8 U.S.C. review, work or travel. Id. at 232. On the 1158(a)(2)(A) any exempts alien who Second Circuit reviewed the IJ’s conclu could be removed to a “[s]afe third coun eye sion with an purpose toward the try”). asylum regulations: provide refuge “to Applying such construct to the facts of desperate refugees who reach our shores case, rightly asylum IJ denied the with nowhere else to turn.” Id. at 233. petition. The overwhelmingly facts indi- Thus, proper it was grant “reserv[e] cate that petitioners firmly had reset- asylum applicants for those without al Mаharajs jobs tled Canada: the abroad, places ternative of refuge regard job training, enjoyed free health less whether a perma formal ‘offer’ of education, care experienced no sub- nent settlerhent has been received.” Id. discrimination, stantial and appeared to added). (emphasis enjoy a relatively peaceful existence. Turning to the text of the regulations, Thus, the IJ had authority to conclude the Second rightly Circuit noted that while that Maharajs firmly had been reset- regulation places “the particular impor- Having concluded, tled Canada. so presence tance on the vel non of an actual rightly IJ determined that neither of the status,” “offer” of resident 208.15(a)-(b) exceptions §in applied, and “language of requires ... therefore the firm resettlement bar re- an IJ to specific examine the circum- quired the asylum denial of the petition. applicant’s stances of an case to decide Simply, “[t]he United States offers whether he has resettled a third refugees provide not to them with a country.” Thus, Id. Sail instructed the IJ homelands, broader choice of safe rather, protect those arrivals with no- would,

where else to turn.” Id. I totality there- consider of the circum- fore, deny petition stances, for review. including whether Sail intended in Senegal to settle when he arrived

Ill there, there, whether he family ties I agree with the majority that whether he there is a has business or property split authority among the circuit courts connections that permanence, connote there; status legal application his enjoyed the he and whether and to right younger to work brother and pending; as the rights —such country at will—that and leave Spain. enter younger living sister were expect persons can settled permanently Moreover, travels do not petitioner’s importance particular to have. Of his arrival in the United suggest that perma- an offer he received reasonably proximate in 1987 was States status. nent in Iran in flight persecution to his from Id. at 235. Maharajs Here, the facts show 20 F.3d at 882. Canada, they that to settle

intended Canada, they were that family ties to have short, “firm resettlement” bar Canada, they per- have employed of Farbakhsh’s prohibited consideration (or hous- non-temporary) at least manent though he had asylum application, even Canada, enjoyed ing in of permanent received an “offer” with commensurate privileges rights Eighth Circuit Spain. ment Sail’s agree citizens. I Canadian rightly applica- concluded an “offer” of permanent statement tion, coupled with an undisturbed impor- particular is “of resident status country, lengthy stay in the suf- however, is also tance”; Circuit Second application at the IJ’s ficient to bar the qua is not a sine inquiry that this correct (as opposed finding to a of firm discretion analysis. firm resettlement non of which mandates denial indistinguishable virtually facts Under also Chinese American application). See here, Eighth Cir presented from those General, Attorney Civic Council na case of Iranian cuit considered (D.C.Cir.1977) “[a]p- (noting F.2d 321 Far Spain. citizen who fled tive and any present did facts rebut pellants Cir.1994). (8th INS, 20 F.3d 877 v. bakhsh from such extended the normal conclusion Spain, peti in Shortly arriving after re- appellants residence that refugee for sta application “filed an tioner citing flight” in and longer settled and no at 880. Farbakhsh Spain.” Id. tus in Woo, 49, 91 for at S.Ct. U.S. years, for almost stayed Spain in four support). permission official though he “did have study Spain.” in Id. When work recently reiterated Eighth Circuit left, refugee application petitioner Ashcroft, v. 374 F.3d 606 this view in Rife Nevertheless, Id. pending. was still status (8th Cir.2004): concluded, the BIA agreed, the IJ in Ab- the Third Circuit agree We in ‘firmly “had resettled’ petitioner § 208.15 of 8 C.F.R. dille thаt text persecu longer fleeing no Spain and was permanent resettle- makes offer [an States.” he entered the United tion when indeed, and, factor important ment] Id. the firm reset- begin proper place review, concluded: Eighth Circuit On it But in some cases analysis. tlement supports the Board’s hold the record We example, For dispositive. will not be firmly reset- petitioner finding a firm resolving reset- our decision had lived more Spain. Petitioner tled issue, affirmed BIA’s tlement fear years Spain four without than four-year alien’s determination Iran; initially in- he being returned constituted firm Spain Spain he to remain because tended application though his ment even status refugee application filed Spain pending Maharajs’ status was still file petition was still when he came United States.9 pending when they Canada; chose to leave yet, the evidence Id. at 611. I indicated that the agree, along Eighth with the Maha- Circuit, rajs permanent an “offer” reset- the Canadian were in proper place tlement is “the begin stasis, much like the relationship between firm analysis”; resettlement majority Mussie and the German government. here claiming errs that an “offer” of While both Maharajs and Mussie had permanent resettlement is the proper something less than an explicit “offer” of place to end analy- permanent resettlement, the facts and cir- sis. cumstances surrounding their lives in Can- The Fourth adopted Circuit a similar ada Germany, respectively, indicate INS, approach. In Mussie F.3d 329 that an IJ could reasonably have concluded (4th Cir.1999), petitioner was a native that both had established an “other type of and citizen of Ethiopia who fled to Germa- permanent resettlement.” ny. for, at applied Id. 330. Mussie sum, rejected Circuits have granted, asylum in Germany, though improperly reading narrow regula- the record did not disclosе whether she promulgated tions by the majority. More- received resident status. Id. over, several Circuits have done so recent- Mussie received government-paid language ly, belying the majority’s claim that schooling, monetary assistance for regulations amendments to the dra- rent, transportation, and food. Id. at 330- matically altered the “firm resettlement” 31. relatively With some excep- minor analysis. tions, peacefully Mussie lived in Germany for approximately years. six Id. IV review, On the Fourth Circuit noted that I am also persuaded public policy although “the record is silent as to wheth- concerns reinforce the interpretation IJ’s actually er Mussie received a formal “of- here. The majority’s analysis open will fer” of residency in Germany, the door to rampant country-shopping, a the INS introduced sufficient in- ‘evidence result that our immigration long laws have dicating’ that Mussie had least sought See, to avoid. e.g., Kalubi v. Ash an offer of ‘some other (9th croft, Cir.2004) Germany, resettlement’ in thereby meet- (noting ing case, its an evidentiary appropriate “[i]n burden.” Id. at ‘fo 208.15). (quoting § rum Supporting shopping’ might conceivably this con- be part clusion, Mussie petitioner noted that the totality the of circumstances that sheds government “received assistance for lan- light request on a asylum for in this coun guage schooling, transportation, rent, and try”); Susan F. Martin and Andrew I. food; job; taxes; held a paid and rented Schoenholtz, Asylum in Practice: Success her own apartment.” Id. at 332. es, Failures, Ahead, and the Challenges Immigr. here, L.J.

Similarly Maharajs (noting the Geo. received a “[mjost variety benefits, of government advanced Western nations including have free health care adopted and schooling, jobs, principle held the in asylum their laws and rented apartment. Mussie, an Unlike that the first safe haven to which a 9. As majority, noted the Farbakhsh relied clearly nouncement in treats Farbakhsh Rife Soleimani, 99, 104, on In re Thus, 20 I. & N. Dec. precedential as authority. despite the (1989), 1989 WL 331872 arguably which majority’s is contrary, analysis claims to the its Yet, Eighth outdated. the pro- Circuit’s Eighth conflicts with the Circuit’s. country-shopping add that is he I would one which be the refugee flees should where, here, egregious particularly in order to reduce asylum” seeks or she asylum petition pending an Indeed, petitioner the facts “asylum-shopping”). country when he in another safe third likely effect case demonstrate the petitioners may § here. These be reading of 208.15. arrives narrow majority’s seeking opportunities better economic in Canada Maharajs peacefully lived immigra- may attempting game to country’s so- enjoying that years, for four certain, system, but what is Dissatisfied tion law benefits. and economic cial asy- petitioners not need the than with that these do in Canada —rather life life protect to them move to lum the United States Maharajs to decided Fiji in —the Refugee that the persecution. Given a blatant abuse from States. What the United granting a limited It is Act allows the asylum system! asylum petitions, and is intend- Maharajs no number undisputed that urgent dire and needs they respond when ed fleeing persecution longer people, the effect deserving group a By their own of to the United States. came majority’s unnecessarily narrow admission, merely dissatisfied they were problematic. most reading of 208.15 is While job prospects Canada. with their cir- economic enjoy improved the desire more, sight let’s not lose What’s many immi- may motivate cumstances likely the trees. The effect for forest a reasonable emphatically not grants, it is majority will be to increase opinion asylum an granting proper a basis government’s burden greatly petition. having re- the alien denies Once cases. offer, shifts to a formal the burden Indeed, Maharajs apparently ceived —who that the alien did prove gain may not be immigrated for economic — However, the some sort of offer. majori- receive Nothing in the example. the worst Depart- circumstantial evidence immigrant who ty opinion prevents an (“DHS”) Security typi- Homeland ment of country, into a new native settles flees asylum case will be prove an (under cally uses legally there country, lives perfect case is largely useless. This “offer” of short of a formal any status face difficulty DHS will example of resettlement), enjoys peace and During their asylum proceedings: future many prosperity the third Maharajs living admitted to hearing, then, grass having decided years, Canada; yet life in happy perfectly States, immi- in the greener the ma- stay, their under circumstances immi- hypothetical here. Such grates construct, only be used to show jority system grant apply could —a Maharajs or not urgent needs respond “to intended If shows “offer.” the evidence in their subject persecution persons offer, other evi- any not receive did homelands,” (emphasis Refugee Act obviously pro- patently dence—even bar, added) the firm resettlement if —and disregarded. automatically bative—is Considering amazingly, apply. would not ham- construct will majority’s Simply, could be immigrant, who hypothetical our and unrea- to an string DHS intolerable This refugee? platonic from the further proceed- degree future sonable enjoys ‍‌‌‌‌‌‌‌​‌‌​‌​​‌‌​‌‌‌‌​‌​​​​‌​​‌​​​​‌​‌‌​​‌‌​‌‌​​‍safety, prosperity, immigrant ings. country, and by the third security offered motivated eco- immigrant’s move V majority Yet the than fear. rather nomics Canada, Maharajs emigrated from by allowing the willing to reward him for four peacefully they had lived proceed. where

asylum petition years, Fiji, per- not from where majority’s unnecessarily

secuted. The nar- reading of “firm

row resettlement” —focus-

ing exclusively ignores “offer”— Supreme guidance Court’s on how to inter-

pret result, our laws. As a

majority opinion puts wrong us on the side split

of a circuit and invites blatant coun-

try-shopping. respectfully I dissent. CIRCU, Petitioner,

Violeta GONZALES, Attorney

Alberto R.

General, Respondent.

No. 02-73420. Appeals, States Court of

Ninth Circuit.

Argued and Submitted En

Banc Dec. 2005.

Filed June

Case Details

Case Name: Maharaj v. Gonzales

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 8, 2006

Citation: 450 F.3d 961

Docket Number: 03-71066, 03-73995

Court Abbreviation: 9th Cir.