Lead Opinion
Vinоdh Parsad Maharaj and his family, natives and citizens of Fiji, petition for review of a Board of Immigration Appeals (BIA) decision that denied them asylum on the ground that they were firmly resettled in Canada after fleeing persecution in Fiji and before arriving in the United States. Under regulations applicable to Maharaj’s application, the Attorney General is precluded from granting asylum to an alien who was “firmly resettled” in another country prior to arrival in this country. 8 C.F.R. § 208.13(c)(2)(i)(B) (2000). An alien is considered firmly resettled if he “entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement” unless he shows that entry into that country was a necessary part of flight from persecution, that he stayed there only long enough to arrange onward travel, and that he did not establish significant ties in that country; or that the conditions of his residence in that country were so restricted that he was not in fact resettled. 8 C.F.R. § 208.15 (2000).
The Maharaj es lived in Canada for four years after leaving Fiji. They worked in Canada and had a child there. Their older children were afforded a free public education, and the entire family had health benefits. The Maharaj es applied there for refugee status or asylum but left before their application was acted upon because they believed the grass was greener on the other side of the border. Given their safe, four-year residence in Canada, where they were able to work and receive benefits, and their pending application for refugee status, the Immigration Judge (IJ) applied a rebuttable presumption of firm resettlement based upon our opinion in Cheo v. INS,
A panel of this court denied Maharaj’s petition for review. Maharaj v. Gonzales,
In this case, the IJ lacked sufficient evidence that the mandatory resettlement bar applies to shift the burden to Maharaj. DHS may be able to show that under Canadian law the type of work permit that Maharaj had, or the progress of his application for refugee status, or the benefits he received, manifested some type of entitlement to stay indefinitely. Hоwever, the record is undeveloped on these points. As such matters are for the immigration judge to determine in the first instance, we remand for a new look on a new record.
If the mandatory bar does not apply, then the issue arises whether country conditions in Fiji have changed such that Ma-haraj can no longer have a well-founded fear of future persecution if returned. Because the BIA did not make an individualized determination about the effect of changed country conditions following the May 2000 coup that occurred in Fiji, we remand for this purpose as well.
I
Vinodh Maharaj, his wife Sunita Maha-raj, and two of their three children are citizens of Fiji, where they lived until November 1987. They are of Indo-Fijian ethnicity. Maharaj worked as a bus driver and his wife, as a secretary for a high school. He was instructed by his boss in March 1987 to aid the Coalition Labor Party (CLP) by transporting Indo-Fijian voters to polling stations for the national elections. The bus Maharaj drove was visibly partisan on behalf of CLP, displaying CLP placards, posters, and flags. After the election, which the CLP won, Ma-haraj received several threats from native Fijians, including a threat to kill him and his family and to burn down their residence. Maharaj believes that the native
Two months later, the Fijian army, which is composed almost exclusively of native Fijians, overthrew the CLP government. Immediately after the coup, two soldiers invaded the Maharajes’ rented room, stole various items, tied Maharaj up, and forced his wife at gunpoint to conduct traffic in her underwear. About a week later, Sunita Maharaj was stopped on her way to work by two soldiers who dragged her into an nearby house and raped her at gunpoint, breaking her arm and burning her with cigarettes. She was turned away from the police station and the hospital by ethnic Fijian soldiers.
In June оr July, Maharaj was attacked by native Fijian soldiers while driving his bus route. They demanded money and, when Maharaj refused, they broke two of his ribs, knocked him unconscious, bruised his jaw, and left him with cuts on his face. Maharaj was treated by a nurse at the hospital but, he was turned away from the police station when he tried to report the incident because he was Indo-Fijian. The following month, the Maharaj family’s rented room was burned down; although there were no witnesses, Maharaj believes that the culprits were native Fijians.
No further attacks occurred between August 1987 and the family’s departure from Fiji; however, Maharaj received some threats and his practice of Hinduism was restricted. In November 1987, the family left Fiji for Canada, where Maha-raj’s sister lived. The Maharaj family settled in Edmonton and applied for asylum or refugee status.
The Maharajes lived in Canada for four years. They received work authorizations and health insurance from the Canadian government, rented an apartment, and sent their children to free public school. Maharaj testified that the Canadian government never asked him to leave and that he was safe, but he “didn’t have any status” and so was not settled in Canada. Maharaj worked as a full-time janitor and also as a bakery deliveryman, and his wife received training to become a nurse’s assistant and worked full-time for one year caring for the elderly. Both complained about working menial jobs and about the stigma associated with being refugees. When asked at the hearing how people knew they were refugees, Sunita Maharaj replied that they “had different social security number[s].” However, when asked whether they were given actual social security numbers, she clarified that she was referring to their work permits and that people “kn[ew] by that work permit that we are refugees somehow.” Maharaj testified that he had work аuthorization while his refugee case was going on. Both also felt that people in Canada didn’t like them very much because they didn’t get good work and were seen as “a very low class people.”
The Maharajes entered the United States as visitors in March 1991 in a ear driven by a Canadian citizen. Apparently the two Canadian citizens in the front seat were asked for identification, but the Ma-harajes were not. Maharaj testified that he “wanted to move to United States because, uh, [he] wanted to see what United States looks like” and explained that once they arrived, they “liked this place much better than Canada, so [they] decided to stay.” Sunita Maharaj testified that the family decided to leave Canada because “we were not getting good job.... We wanted to, you know, go up and have more money and build ourself. So, that’s the time when we thought we don’t like Canada.”
When they overstayed the six months permitted for visitors, Maharaj and his family were served with Orders to Show Cause on September 19, 1996, charging them with being deportable pursuant to
Following a hearing at which Maharaj and his wife testified, the IJ found that the Canadian government has a reputable refugee program, very similar to that of the United States, but the Maharajes elected to come to the United States before Canadian authorities had an opportunity to review the case. So, the IJ found, “they never were actually granted refugee status, but it clearly was offered them. They just chose not to take advantage of it, or not wait until it was offered them, or until there was a final resolution of the problem.” Ultimately, he concluded that the Cheo presumption of firm resettlement applied because the Mahаrajes had spent a significant amount of time in Canada, which is a safe country, and were “attempting to accept an offer of refugee status, but elected not to wait for the outcome of that offer, which included over a space of four years, the right to live, and work, and most of all benefits under Canadian law.”
As the INS conceded past persecution, withholding of deportation was the only remaining issue. The IJ considered the State Department’s 1996 Profile of Asylum Claims and Country Conditions for Fiji, and determined that there was little or no possibility that the Maharajes would again suffer persecution given changes that had occurred since the 1987 coup. The IJ also relied upon the fact that the Maharajes had requested renewal of their Fijian passports, which indicated that they did not seriously fear returning. The IJ designated Fiji as the country of removal for all members of the family except the youngest child, who is a Canadian citizen and whose country of removal was designated as Canada.
Maharaj appealed to the BIA but, before his appeal was heard, filed a motion to reopen based on new evidence of changed conditions in Fiji arising out of a 2000 coup, and a one-page fax purportedly showing that his application for asylum in Canada had been denied. On February 27, 2003, the BIA affirmed the IJ’s decision that the Maharaj family was firmly resettled in Canada. In doing so, it cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), which indicates that the Board adopted the immigration judge’s decision. Tchoukhrova v. Gonzales,
Maharaj again petitioned the BIA to reopen his case based on the coup that occurred in Fiji in May 2000. The BIA denied Maharaj’s motion to reopen on October 8, 2003, noting that evidence of the May 2000 coup “was before the Board when we issued our prior decision.” Further, the BIA held that because Maharaj was ineligible for asylum on firm resettlement grounds, the evidence of changed country conditions was only relevant to Maharaj’s withholding of deportation and Convention Against Torture (CAT) claims. The BIA concluded that the evidence was not sufficient to establish a prima facie case of eligibility for withholding of deportation or CAT relief and therefore reopening was not warranted.
II
A finding of “firm resettlement” is a factual determination that we review under the deferential substantial evidence standard. See Nahrvani v. Gonzales,
Ill
The Attorney General has discretion to grant asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is an alien who is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). However, as of October 1, 1990, INS regulations prohibit an immigration judge or asylum officer from granting asylum to an alien who “[h]as been firmly resettled” in a third country prior to arriving in the United States. 8 C.F.R. § 208.13(c)(2)(i)(B),
An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes:
(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange on*968 ward travel, and that he or she did not establish significant ties in that country; or
(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, рublic relief, or naturalization, ordinarily available to others resident in the country.
8 C.F.R. § 208.15.
Rather than recite the history of the resettlement doctrine here, we rely on Judge Becker’s opinion in Abdille, which comprehensively examines it.
When firm resettlement was only one factor informing a discretionary calculus, “an adjudicator could consider factors such as the length of stay, ability to work, familial ties, economic conditions in the third country, and the like” in favor of, or against, a grant of asylum. Diallo,
A
We have addressed the mandatory bar several times, and have held that there must be evidence of an offer of permanent, not temporary, residence in a third country where the applicant lived peacefully and without restriction. Ali v. Ashcroft,
Cheo is the seminal opinion upon which the IJ’s decision pivoted in this case. In Cheo, Cambodian nationals lived in Malaysia without molestation or persecution for three years prior to being smuggled into this country. “[Tjhere [was] no direct evidence one way or the other as to whether the Cheos have or had the right to return to Malaysia,”
We have explicated Cheo on several occasions. Andriasian involved ethnic Armenian natives of Azerbajian who escaped to Armenia and lived in that country off and on for several years before arriving in the United States. Andriasian and his family were mocked in Armenia, someone attempted to rape his wife, the family was harassed on account of their religion, and at least one death threat was made. The BIA had exercised its discretion to deny asylum on the ground of firm resettlement,
In Camposeco-Montejo, a citizen of Guatemala fled with his parents to Mexico in 1982 where he lived in refugee camps, was not allowed to attend Mexican schools, and could not leave the municipality in which the camp was located until 1996 when he was given an “FM3” card which permitted travel outside the municipality and the right to work. An FM3 did not confer the right to apply for permanent residency. We concluded that the IJ’s finding of firm resettlement on account of sixteen years of residence in Mexico was not supported by substantial evidence as Camposeco did not experience the freedom and lack of persecution that characterized the applicants’ stays in Cheo and Vang, and his stay was not “undisturbed” because he was restricted to a single municipality, could not attend Mexican schools, and was threatened with repatriation to Guatemala.
Most recently in Ali, we considered whether natives of Somaliа who lived in Ethiopia for five years were firmly resettled in Ethiopia. The Ethiopian government never offered assistance or legal sta
B
The IJ in this case understood a rebut-table presumption to arise under Cheo “where an alien has spent a significant amount of time in another safe country before arriving in the United States, but the Court has no information on his status there.” Maharaj submits that Cheo has no application to his case because its presumption is premised on the absence of evidence one way or the other, whereas the evidence here is uncontested that he had no offer of permanent resettlement. The government counters that most courts accept some form of Cheo analysis, and that Maharaj’s approach would read all but a few countries out of the definition.
We are not entirely persuaded by either position. On the one hand, to presume resettlement in the absence of “information” begs the question of who has the burden of adducing evidence and what showing suffices to shift the burden to the applicant under the regulations. Also, there is information about Maharaj’s status as the evidence shows that he had permission to work in Canada and a pending application for refugee or asylum status when he left; the problem is that there is no evidence about what his work permit, or pending application, means in terms of § 208.15’s requirement of “an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” On the other hand, Maharaj left Canada of his own volition to pursue what he perceived to be better opportunities in the United States, after invoking the process that Canada made available but without giving Canadian authorities a chance to confer, or not confer, some kind of permanent residence or resettlement status. Intuitively, this is a sensible reason to believe that asylum in the United States isn’t necessary to protect him from persecution. But this, too, begs the question under the regulations, which is whether living, working, and applying for some type of refugee or asylum status amounts to a formal offer of resettlement such that the burden of showing that he was not in fact resettled shifted to Maharaj.
Thus, we must decide what role, if any, the Cheo presumption plays in a case where there is evidence that an alien lived in a third country for four years, was permitted to work, and had an application for some kind of residence status pending. This leads us, in turn, to consider anew how best to interpret the firm resettlement regulation, and to clarify the construct under which we analyze whether the mandatory bar applies.
C
Unfortunately, the BIA has not revisited firm resettlement in a published opinion since Soleimani was decided in 1989 under
First, the government bears the initial burden of showing “an offer of permanent resident status, citizenship, or some other type of permanent resettlement” such that the firm resettlement bar applies and the burden shifts to the alien to rebut it. See, e.g., Sall,
Second, the threshold showing of an offer can be made by direct, or indirect, evidence. However, as we shall explain, the circuits differ on whether non-offer-based evidence carries the same weight as offer-based evidеnce in making a prima facie, or threshold, showing. Compare Abdille,
Third, a grant of asylum, a residence permit, and travel documents indicating the permanence of a person’s status are the type of direct evidence that may satisfy the government’s threshold burden and support a finding of firm resettlement. Evidence of this order of magnitude has been present in virtually all published cases where a finding of firm resettlement has been upheld. See, e.g., Firmansjah,
We agree with the consensus view that DHS bears the initial burden of showing “an offer of permanent resident status, citizenship, or some other type of permanent resettlement” under § 208.15. The regulation is plainly structured to require some evidence that an offer was received before the burden shifts to the alien to rebut it. The more difficult question is the nature of the threshold showing that will cause the burden to shift to the alien, or supрort a finding of firm resettlement in the absence of evidence to the contrary. On this the circuits part company. Some interpret § 208.15 as focusing the threshold showing primarily on direct, offer-based evidence of permanent resettlement, allowing indirect, non-offer-based evidence to serve as a surrogate only if direct evidence cannot be obtained. Others interpret the threshold showing more broadly to encompass “the totality of the circumstances,” including the length of the alien’s stay in the third country, receipt of benefits, familial ties, and business and property connections. In the main, decisions following a “totality of the circumstances” approach stem from the law on firm resettlement as it developed under the pre-1990, discretionary regime. See Abdille,
Abdille is the leading case that takes an offer-based approach. In the Third Circuit’s view, “[i]t is readily evident from the plain language of § 208.15 that the prime element in the firm resettlement inquiry is the existence vel non of ‘an offer of permanent resident status, citizenship, or some other type of permanent resettlement.’ Thus, on its face, § 208.15 explicitly centers the firm resettlement analysis on the question whether a third country issued to the alien an offer of some type of official status permitting the alien to reside in that country on a permanent basis.” Id. at 485 (citation omitted). The Seventh Circuit takes the same view. Diallo,
Consistent with our approach in Cheo, Abdille recognizes that “circumstances may arise in which the INS may not be able to secure direct evidence of a formal government offer of some type of permanent resettlement, and thus may ... not be able to make the prima facie showing of firm resettlement under § 208.15 in that manner.”
Opting for a “totality of the circumstances” approach, the Second Circuit recently adopted a test under which immigration judges are to consider “whether [the petitioner] intended to settle in [the third country] when he arrived there, whether he has family ties there, whether he has business or property connections that connote permanence, and whether he enjoyed the legal rights — such as the right to work and to enter and leave the country at will — that permanently settled persons can expect to have. Of particular importance to this inquiry is whether he received an actual offer of permanent resident status.” Sall,
We remain convinced by Abdille’s reasoning and approach. The regulation de
Our dissenting colleagues would instead have “offer of’ mean offer or — “for example, the length of the alien’s stаy in the safe third country, the alien’s work history in the safe third country, or the alien’s ability to take advantage of the safe third country’s social services.” Dis. op. at 981. They suggest that “firm resettlement” is not coextensive with receipt of an offer of permanent resettlement because the regulation does not state that an offer is the exclusive means of showing firm resettlement, id. at 981 n. 4 & 985, and because otherwise, the phrase “firm resettlement” wouldn’t be necessary, id. at 981 n. 4. However, § 208.15 defines “firm resettlement” in terms of an alien who “entered into another country with, or while in that country received, an offer of ... some other type of permanent resettlement.” Thus, “firm resettlement” necessarily, and by definition, is coextensive with an offer. Section 208.15 requires the existence vel non of an offer even though it doesn’t say that “only” an offer qualifies, for an alien cannot possibly enter a third country with a history there of residence, work, or social services. Put differently, if permanent resettlement can be acquired without an offer through long-term residence, employment, and receipt of government benefits, an alien could never obtain “some other type of permanent resettlement” before entering the country and living there. Yet the regulation plainly contemplates that an alien may have “entered” a third country with an offer of “some other type of permanent resettlement” as well as with an offer of “permanent resident status” or “citizenship.” In sum, we disagree that the regulation can be rewritten to read that the existence of an “offer” is one means, but not the exclusive means, of proving firm resettlement. Id. at 985.
This said, under Abdille and the approach that we adopt, non-offer-based elements may still be considered at the threshold stage if DHS shows that direct evidence of an offer is unobtainable. Although not a perfect solution, this surrogate route comports with the regulation’s offer-based focus, yet allows for the possibility that no direct evidence is available. Given this alternativе, and given that § 208.15 was adopted when firm resettlement became a mandatory bar, we are not persuaded that the inquiry should be broadened beyond the regulation’s plain focus or beyond its own burden-shifting scheme in order to capture the focus of a superseded, discretionary, non-burden-shifting regime. See Diallo,
We recognize that even so, § 208.15 has puzzling holes; it fails to say what “offer” means, and leaves “some other type of permanent resettlement” undefined as well. For present purposes we accept the common meaning of “offer” as “[t]he act or an instance of presenting something for acceptance.” Black's Law Dictionary 1113 (8th Ed.1999); see also Webster’s II New College Dictionary 759 (1995) (“offer” is “something offered, as a proposal, suggestion, bid, or invitation”; to “offer” is “to put before another for acceptance or rejection”). “The ‘some other type of permanent resettlement’ language likely was added to account for the great variety in names and types of permanent offers of settlement in countries around the globe and was not meant to be a catch-all that would undo the requirement of a governmental ‘offer.’ ” Diallo,
While we also acknowledge the dissent’s concern about opening “the door to rampant country-shopping,” dis. op. at 988, policy arguments, no matter how forceful, do not justify jettisoning the plain language of the regulation. Tightening up the criteria for firm resettlement does not seem an unreasonable thing for a regulation interpreting a mandatory bar to do, as it makes sense to require a more definitive showing of permanent resettlement when asylum is per se unavailable than when it may or may not be granted as a matter of discretion. In any event, the agency can always recede from the Abdille construction by changing the language of § 208.15, if it shares the dissent’s concern. Finally, we note that at the end of the day, the Attorney General retains discretion to deny asylum even when denial is not required by the firm resettlement regulation.
Accordingly, we conclude that under the plain language of § 208.15, DHS bears the initial burden of showing that the government of the third country issued to the alien a formal offer of some type of official status permitting the alien to reside in that country indefinitely. This burden can be met by direct evidence of an offer of some type of permanent resettlement, or if DHS shows that direct evidence of a formal offer is unobtainable, then surrogate, non-offer-based evidence may suffice for the initial showing if it is of sufficient force for the IJ reasonably to infer that the third country officially sanctions the alien’s indefinite presence. As DHS bears the burden of showing receipt of an offer, it also bears the burden of showing that the non-offer-based evidence upon which it relies signifies some kind of entitlement to stay indefinitely. In either case, once DHS points to some evidence of an offer of some type of permanent resettlement, the burden shifts to the applicant t» show that the nature of his stay and ties was too
D
Here, the IJ found both that Maha-raj was never “actually granted refugee status, but it clearly was offered to him”&emdash; and that Maharaj “chose not to wait until it was offered.” We cannot tell whether the IJ found an offer, or not. Nor can we tell what “refugee status,” even if offered, signifies in terms of “permanent residence” or “some other type of permanent resettlement” under Canadian law.
The record does show that Maharaj was in the process of applying for some kind of refugee or asylum status, and walked out on it. But the fact that Canada offers a process for applying for some type of refugee or asylum status is not the same as offering the status itself. In Elzour, the Tenth Circuit addressed the similar situation of an alien who spent nearly four years in Canada after fleeing Syria and before entering the United States. Elzour had applied for asylum, but failed to appear for a mandatory hearing. His application was denied, as was a petition for permanent residence status based on his marriage to a Canadian citizen. Considering whether Elzour’s ability to apply for asylum was itself “an offer” of permanent resettlement, the court noted that refugees may not unilaterally reject safe harbor in a third country in favor of seeking asylum in the United States. However, as the court explained, this depends upon whether the alien was entitled to claim permanent refuge or just had the possibility of asylum:
[A] third country’s offer of permanent resettlement may consist оf providing a defined class of aliens a process through which they are entitled to claim permanent refuge. If an alien who is entitled to permanent refuge in another country turns his or her back on that country’s offer by failing to take advantage of its procedures for obtaining relief, he or she is not generally eligible for asylum in the United States. In contrast, a mere possibility that an alien might receive permanent refuge through a third country’s asylum procedures is not enough to constitute an offer of permanent resettlement.
Elzour,
The IJ’s determination accordingly lacks support, and we remand for further proceedings consistent with this opinion.
IV
Maharaj also contends that, in light of the May 2000 coup in Fiji, he is eligible for withholding of removal because it is more likely than not that he will be persecuted upon his return to Fiji. The State Department Country Report on Human Rights Practice for 2000 catalogs violence against Indo-Fijians and specifically states that the areas near Maharaj’s home province of Nausori “experienced a particularly high level of violence, including looting, arson, and physical intimidation directed against Indo-Fijians.” However, we cannot make a determination on changed country conditions in the first instance. INS v. Ventura,
V
We conclude that the IJ’s determination that Maharaj was firmly resettled lacks support. We grant the petition, and remand so that the IJ may consider whether evidence that Maharaj had a right to work, receive benefits, and apply for some kind of refugee or asylum status in Canada constitutes “an offer of permanent residence, citizenship, or some other type of permanent resettlement” under the approach that we have adopted. We also remand to give the IJ an opportunity to make an individualized assessment of the
PETITION GRANTED.
Notes
. The Immigration and Naturalization Service (INS) has been abolished and its functions transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, 2142 (2002), 6 U.S.C. §§ 101-557. Although the INS was the agency that sought to deport the Maharaj es, we will generally refer to the government as DHS.
. Because Maharaj filed his application for asylum on May 3, 1991, before the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), we review his case under the firm resettlement provisions set out in 8 C.F.R. § 208.13(c)(2)(i)(B) and defined in 8 C.F.R. § 208.15. See 8 C.F.R. § 208.13(c)(2)(i)(B) ("An immigration judge or asylum officer shall not grant asylum to any applicant who filed his or her application before April 1, 1997, if the alien ... [h]as been firmly resettled within the meaning of § 208.15.”). The firm resettlement bar was codified at 8 U.S.C. § 1158(b)(2)(A)(vi) in 1996, but the regulation's definition of firm resettlement remained the same.
. Whether or not an asylum claim must be denied, it may be in the discretion of the Secretary of Homeland Security or the Attorney General. See 8 U.S.C. § 1158(b)(1). Only the mandatory bar is at issue in this case.
. In Chinese American Civic Council, Chinese aliens had fled mainland China and spent between sixteen and twenty years in Hong Kong before applying for refugee status in the United States. Following Woo, the court found that the aliens' extended residence in Hong Kong led to the "normal conclusion" that "they were 'firmly resettled,’ i.e., not still in flight.”
Farbakhsh involved an Iranian citizen who fled to Spain. Guided by Matter of Soleimani, the court held that evidence supported the Board’s finding that Farbakhsh was firmly resettled in Spain because he had resided there for more than four years without fear of being returned to Iran; he initially intended to remain in Spain because he filed an application for refugee status there; his application for refugee status was pending; his younger brother and younger sister were living in Spain; his arrival in the United States was not reasonably proximate to his flight from persecution in Iran; and his stay in Spain was not a stopover en route to refuge in the United States.
. 8 C.F.R. § 208.14(c) (1997), the applicable regulation at the time Cheo was decided, provided:
If the evidence indicates that [one of the enumerated grounds for denial of asylum, including firm resettlement] may apply, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.
Id. (emphasis added). The regulation has since been changed to provide:
If the evidence indicates that [one of the enumerated grounds for denial of asylum, including firm resettlement] apply to the applicant, he or she shall have the burden of proving by a preponderance of the evidence that he or she did not so act.
. We observed that this was consistent with the views of the two other circuits to consider the question. Chinese American Civic Council was one of the two; the other was Abdalla v. INS,
. The regulations in effect when Andriasian was decided provided:
An asylum application may be denied in the discretion of the Attorney General if the alien can be removed to a third country which has offered resettlement and in which the alien would not face harm or persecution.
8 C.F.R. § 208.13(d) (1999). This provision was removed effective January 5, 2001. See Asylum Procedures, 65 Fed.Reg. 76,121, 76,-126 (Dec. 6, 2000) (explaining that § 208.13(d) was being removed "from the regulations to avoid confusion”).
. Others have a similar position. See Salazar,
. The First Circuit recognized the principle in Salazar,
. Sail notes in parentheticals that the Fourth Circuit found firm resettlement in Mussie in part based on a six-year stay in a third country, receipt of government assistance, and renting of a personal apartment, but does not take note of the fact that the petitioner, who was a native and citizen of Ethiopia and fled to Germany where she lived, worked, and paid taxes for six years, was granted asylum in Germany and was issued German travel documentation. Sall,
. Although not applicable to Maharaj, we note that The Agreement Between the Government of the United States of America and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, U.S.-Can., Dec. 5, 2002, available at http: //cana-da.usembassy .gov/content/can _usa/ Safe3rd_final textl2-5-021.pdf, which became effective December 29, 2004, recognizes that both countries "offer generous systems of refugee protection” and provides, suoject to exceptions, that aliens arriving in the United States from Canada at a land border port-of-entry shall be returned to Canada to seek
Concurrence Opinion
with whom KLEINFELD, RAWLINSON, and CALLAHAN, Circuit Judges, join, concurring in part and dissenting in part:
While I agree that a remand to consider changed circumstances in Fiji is warranted with respect to the Maharajs’ request for withholding of removal, I must respectfully dissent from the court’s holding with respect to the merits of the Maharajs’ asylum petition. I believe the Immigration Judge (“IJ”) properly concluded that the Maharajs had been firmly resettled in Canada. In my view, the opinion of the court misconstrues the law of resettlement, opens our asylum process to an alien who is not fleeing from persecution, and invites abusive country-shopping.
I
The Maharajs fled Fiji in 1987, having experienced substantial persecution, see Maj. Op. at 964-65, on account of their Indo-Fijian ethnicity. The family settled in Canada, where it sought refugee status and applied for asylum. The Maharajs lived undisturbed, legally and openly, in Canada for four years, during which time Mr. Maharaj worked as a fulltime janitor and bakery deliveryman, while Mrs. Maha-raj received training to become a nurse’s assistant and worked full-time caring for the elderly. The Maharajs rented an apartment, sent their children to free public school, and received free government-provided health care. Both Mr. and Mrs. Maharaj received Social Insurance Numbers and work authorization. Though the Maharajs disliked working menial jobs and felt that there was stigma attached to their status as refugees, they worshiped freely at a Hindu temple and developed friendships with non-Indians and non-Fijians in Canada.
The Immigration Judge (“IJ”) concluded that the Maharajs lived free from persecution in Canada; indeed, it is undisputed that while living there, the Maharajs enjoyed the stability, freedom, and safety offered to Canadian immigrants. Yet the Maharajs, dissatisfied with the vocational opportunities in Canada, crossed the border into the United States. Mr. Maharaj explained that he “wanted to move to United States because, uh, [he] wanted to see what United States looks like” and that the “main thing was job. We never had a good job.” Mrs. Maharaj testified that “we were not getting good job .... We wanted to, you know, go up and have more money and build ourself. So, that’s the time when we thought we don’t like Canada.” When they arrived, they “liked this place much better than Canada, so [they] decided to stay here.”
Once in the United States, the Maharajs overstayed the six month window permitted to visitors, and were served with Orders to Show Cause, charging them with deportability. The family conceded de-portability, but requested asylum and withholding of removal. After hearing Mr. and Mrs. Maharajs’ testimony, the IJ concluded that although Canada has a refugee program similar to that of the United States, the Maharajs voluntarily chose to leave Canada before Canadian authorities reviewed their petition. Indeed, when asked whether “it’s possible that you could have refugee status in Canada and not even know it,” Mr. Maharaj answered, “Could be.”
II
Here the IJ concluded that — given the circumstances of the Maharajs’ four-year sojourn in Canada — the Maharajs had been firmly resettled despite a concession by the government that the Maharajs’ pending application for asylum there had not yet been authoritatively resolved. I suggest that in reversing the IJ’s legal conclusion, the majority misreads the firm resettlement regulation in two respects. First, it too narrowly construes the catchall provision. Second, it ignores the history and purpose of the regulation by improperly reading the list of factors which the IJ can apply in determining “firm resettlement” as exhaustive.
A
The plain text of §§ 208.15 and 208.13 allow the IJ significant latitude for finding that an alien “has been firmly resettled” based not only on “offers” of permanent resident status or citizenship, but also on the basis of “some other type of permanent resettlement.” The phrase “some other type of permanent resettlement” must be read in the context of the preceding examples. See, e.g., Circuit City Stores v. Adams,
Moreover, the regulation by its plain text does not require that the alien actually receive permanent resident status, citizenship, or some other type of permanent resettlement; rather, it only requires an “offer ” of such. Thus, while “some other type of permanent resettlement” is a minimal requirement in itself, the regulations require even less: only a mere offer. The regulation’s focus on an “offer" rather than on receipt of “some other type of permanent resettlement” underscores that the resettlement question turns on whether the alien remains in fear of being returned to persecution in his native country.
Under these circumstances, I would conclude that the Maharajs fall into such category: they were offered, and had accepted, the ongoing protection of the Canadian government while it processed their asylum application. Though that protection may at some point culminate in a formal “offer” of citizenship or other status, when the IJ evaluated the Maharajs’ claim there was nothing to indicate that they would not be allowed permanently to resettle in Canada. Indeed, the IJ reasonably determined that the Maharajs were not just offered temporary resident status; rather, they were offered, and accepted, indefinite resettlement. The difference is crucial. While temporary status, by definition, entails a definitive ending point — and therefore necessarily means that the immigrant will be in flight again — indefinite resettlement does not create such worries. Here, the Maharajs’ asylum and refugee applications were pending with the Canadian government. Until such time as the Canadian government acted on the applications, the Maharajs were free- to remain in Canada. This arrangement, which is not temporary, qualifies under the regulatory definition and the IJ could properly so find. Simply, the lack of a formal “offer” is not disposi-tive where the conditions of the aliens’ stay are such that there was no risk of deportation when they chose to leave.
B
Í
To parse the regulation in more detail, § 208.15 states that “An alien is considered to be firmly resettled if .... [he or she has] received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” While the regulation plainly provides that a finding of an “offer” of permanent resident status, citizenship, or some other type of permanent resettlement automatically and conclusively bars the alien from applying for asylum, the regulation does not state that only such a showing establishes firm resettlement. Rather, because the regulation is not limited, other factors- — for example, the length of the alien’s stay in the safe third country, the alien’s work history in the safe third country, or the alien’s ability to take advantage of the safe third country’s social services — may inform the IJ’s firm resettlement analysis.
2
The focus of the firm resettlement analysis has always been — and remains— whether the refugee remains in flight. Thus, the regulation requires that the adjudicator consider whether there is an “offer” of permanent resettlement as a means of determining whether the refugee remains in flight; however, the regulation still entertains other means of determining whether the refugee is fleeing persecution.
Such interpretation is the only one consistent with the Supreme Court’s sole discussion of firm resettlement. In 1971, the Court considered the case of Yee Chien Woo, a native of.Red China who had fled for Hong Kong in 1953, where he lived until 1960, when he moved to the United States. See Rosenberg v. Yee Chien Woo,
[The act] was never intended to open the United States to refugees who had found shelter in another nation and had begun to build new lives. Nor could Congress*983 have intended to make refugees in flight from persecution compete with all of the world’s resettled refugees for the 10,200 entries and permits afforded each year under [the statute]. Such an interpretation would subvert the lofty goals embodied in the whole pattern .of our refugee legislation.
Id. at 56,
In adopting the 1990 amendments, the INS intended to recognize the importance of the existence of an “offer” to analyzing firm resettlement.
The Supreme Court’s exegesis of “firm resettlement” in Woo is consistent with both the origins of, and the continuing rationale supporting, our refugee and asylum laws. The original congressional declaration of policies and objectives for the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C.), recognized that
it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.... The Congress further declares that it is the policy of the United States to encourage all nations to provide assistance and resettlement opportunities to refugees to the fullest extent possible.
Refugee Act § 101.
Of course, a consequence of the international and cooperative nature of our obligations under the Refugee Act is that our obligations, by practical necessity, became limited. The most obvious limitations are the discretion bestowed on the Attorney General to accept or to reject the asylum application of a qualified refugee, see 8 U.S.C. § 1158(b)(1), and the numerical ceiling on the number of refugees that may be admitted into the United States each year, see 8 U.S.C. § 1157(a). These limitations are consistent with the Court’s observation in Woo that “refugees in flight from
We must consider these policy goals and limitations as part of a proper interpretation of § 208.15. I cannot support an interpretation of the regulations which constricts the analysis to only a single element, when the text of the regulations, their purpose, and Supreme Court precedent point to a broader construction.
3
Under our own case law, we long ago jettisoned the notion that § 208.15 requires an analysis exclusively aimed at the existence of an “offer.” In our seminal case on the subject, Cheo v. INS,
Three years of peaceful residence established that the ground of “firm resettlement” in Malaysia might apply, so the Cheos had the burden of proving that they were not firmly resettled. That was enough time so that, in the absence of evidence to the contrary, it would be a reasonable inference from the duration that Malaysia allowed the Cheos to stay indefinitely. A duration of residence in a third country sufficient to support an inference of permanent resettlement in the absence of evidence to the contrary shifts the burden of proving absence of firm resettlement to the applicant.
Id. at 1229 (emphasis added) (citing Abdalla v. INS,
Our later case law applying Cheo is consistent with a broader reading of the regulation. In Andriasian v. INS,
many refugees make their escape to freedom from persecution in successive stages and come to this country only after stops along the way. Such stops do not necessarily mean that the refugee’s aim to reach these shores has in any sense been abandoned. ... The presence of such persons in this country is not “one which is reasonably proximate to the flight” or is “remote in point of time or interrupted by intervening residence in a third country.”
In sum, our prior case law, in accordance with the language of the regulation, allowed consideration of a variety of factors to show firm resettlement. Cheo properly put the focus of the analysis on “firm resettlement,” rather than on the existence vel non of an “offer” for permanent resettlement. Again, based on our precedent, the history, text, and structure of the regulation, and Supreme Court precedent, I cannot agree that the regulation requires exclusive focus on оne factor; rather, the existence of an “offer” is one means of proving firm resettlement — and is determinative if shown — but it is not the exclusive means of proving firm resettlement.
C
Under a proper reading of the regulations, a variety of factors may be considered as part of the analysis of firm resettlement. If the petitioner has been offered permanent resident status, citizenship, or another type of permanent resettlement, then “firm resettlement” is established and the asylum petition must be denied, unless the petitioner establishes that one of the two exceptions provided at § 208.15(a)-(b) apply. However, if no “offer” of permanent resident status, citizenship, or other
Applying such construct to the facts of this case, the IJ rightly denied the asylum petition. The facts overwhelmingly indicate that the petitioners had firmly resettled in Canada: the Maharajs had jobs and received job training, enjoyed free health care and education, experienced no substantial discrimination, and appeared to enjoy a relatively peaceful existence. Thus, the IJ had the authority to cоnclude that the Maharajs had been firmly resettled in Canada. Having so concluded, the IJ rightly determined that neither of the exceptions in § 208.15(a)-(b) applied, and therefore the firm resettlement bar required the denial of the asylum petition. Simply, “[t]he United States offers asylum to refugees not to provide them with a broader choice of safe homelands, but rather, to protect those arrivals with nowhere else to turn.” Id. I would, therefore, deny the petition for review.
Ill
I agree with the majority that there is a split of authority among the circuit courts of appeals; regrettably, the majority follows the weaker line of the Third and Seventh Circuits, rather than the more persuasive view of the Second, Fourth, Eighth, and D.C. Circuits. In Second Circuit’s opinion in Sall v. Gonzales — the most recent discussion of this issue — the petitioner was a native and citizen of Mauritania who fled to Senegal.
Turning to the text of the regulations, the Second Circuit rightly noted that while “the regulation places particular importance on the presence vel non of an actual “offer” of permanent resident status,” the “language of the regulation ... requires an IJ to examine the specific circumstances of an applicant’s case to decide whether he has firmly resettled in a third country.” Id. Thus, Sail instructed the IJ to
consider the totality of the circumstances, including whether Sail intended to settle in Senegal when he arrived there, whether he has family ties there, whether he has business or property connections that connote permanence,*987 and whether he enjoyed the legal rights — such as the right to work and to enter and leave the country at will — that permanently settled persons can expect to have. Of particular importance is whether he received an offer of permanent resident status.
Id. at 235.
Here, the facts show that the Maharajs intended to settle in Canada, that they have family ties to Canada, that they were employed in Canada, that they have permanent (or at least non-temporary) housing in Canada, and that they enjoyed rights and privileges commensurate with Canadian citizens. I agree with Sail’s statement that an “offer” of permanent resident status is “of particular importance”; however, the Second Circuit is also correct that this inquiry is not a sine qua non of a firm resettlement analysis.
Under facts virtually indistinguishable from those presented here, the Eighth Circuit considered the case of an Iranian native and citizen who fled to Spain. Farbakhsh v. INS,
On review, the Eighth Circuit concluded: We hold the record supports the Board’s finding that petitioner had firmly resettled in Spain. Petitioner had lived more than four years in Spain without fear of being returned to Iran; he initially intended to remain in Spain because he filed an application for refugee status there; his application for refugee status was pending; his younger brother and younger sister were living in Spain. Moreover, petitioner’s travels do not suggest that his arrival in the United States in 1987 was reasonably proximate to his flight from persecution in Iran in 1982.
In short, the “firm resettlement” bar prohibited consideration of Farbakhsh’s asylum application, even though he had not received an “offer” of permanent resettlement from Spain. The Eighth Circuit rightly concluded that an asylum application, coupled with an undisturbed and lengthy stay in the third country, was sufficient to bar the application at the IJ’s discretion (as opposed to a finding of firm resettlement, which mandates denial of the application). See also Chinese American Civic Council v. Attorney General,
The Eighth Circuit recently reiterated this view in Rife v. Ashcroft,
We agree with the Third Circuit in Ab-dille that the text of 8 C.F.R. § 208.15 makes [an offer of permanent resettlement] an important factor and, indeed, the proper place to begin the firm resettlement analysis. But in some cases it will not be dispositive. For example, in our only decision resolving a firm resettlement issue, we affirmed the BIA’s determination that the alien’s four-year stay in Spain constituted firm resettlement even though his application for*988 refugee status in Spain was still pending when he came to the United States.9
Id. at 611. I agree, along with the Eighth Circuit, that an “offer” of permanent resettlement is “the proper place to begin the firm resettlement analysis”; the majority here errs by claiming that an “offer” of permanent resettlement is the proper рlace to end the firm resettlement analysis.
The Fourth Circuit adopted a similar approach. In Mussie v. INS,
On review, the Fourth Circuit noted that although “the record is silent as to whether Mussie actually received a formal “offer” of permanent residency in Germany, the INS introduced sufficient ‘evidence indicating’ that Mussie had received at least an offer of ‘some other type of permanent resettlement’ in Germany, thereby meeting its evidentiary burden.” Id. at 331 (quoting § 208.15). Supporting this conclusion, Mussie noted that the petitioner “received government assistance for language schooling, transportation, rent, and food; held a job; paid taxes; and rented her own apartment.” Id. at 332.
Similarly here, the Maharajs received a variety of government benefits, including free health care and schooling, held jobs, and rented an apartment. Unlike Mussie, file Maharajs’ asylum petition was still pending when they chose to leave Canada; yet, the evidence indicated that the Maha-rajs and the Canadian government were in stasis, much like the relationship between Mussie and the German government. While both the Maharajs and Mussie had something less than an explicit “offer” of permanent resettlement, the facts and circumstances surrounding their lives in Canada and Germany, respectively, indicate that an IJ could have reasonably concluded that both had established an “other type of permanent resettlement.”
In sum, other Circuits have rejected the improperly narrow reading of the regulations promulgated by the majоrity. Moreover, several Circuits have done so recently, belying the majority’s claim that the 1990 amendments to the regulations dramatically altered the “firm resettlement” analysis.
IV
I am also persuaded that public policy concerns reinforce the IJ’s interpretation here. The majority’s analysis will open the door to rampant country-shopping, a result that our immigration laws have long sought to avoid. See, e.g., Kalubi v. Ashcroft,
Indeed, the Maharajs — who apparently immigrated for economic gain — may not be the worst example. Nothing in the majority opinion prevents an immigrant who flees his native country, settles into a new third country, lives there legally (under any status short of a formal “offer” of permanent resettlement), enjoys peace and prosperity in the third country for many years, then, having decided that the grass is greener in the United States, immigrates here. Such a hypothetical immigrant could apply for asylum — a system intended “to respond to the urgent needs of persons subject to persecution in their homelands,” Refugee Act § 101 (emphasis added) — and the firm resettlement bar, amazingly, would not apply. Considering our hypothetical immigrant, who could be further from the platonic refugee? This immigrant enjoys safety, prosperity, and security offered by the third country, and the immigrant’s move is motivated by economics rather than fear. Yet the majority is willing to reward him by allowing the asylum petition to proceed.
I would add that country-shopping is particularly egregious where, as here, the petitioner has an asylum petition pending in another safe third country when he arrives here. These petitioners may be seeking better economic opportunities or may be attempting to game the immigration law system, but what is certain, is that these petitioners do not need the asylum in the United States to protect them from persecution. Given that the Refugee Act allows the granting of only a limited number of asylum petitions, and is intended to respond to the dire and urgent needs of a deserving group of people, the effect of the majority’s unnecessarily narrow reading of § 208.15 is most problematic.
What’s more, let’s not lose sight of the forest for the trees. The likely effect of the majority opinion will be to increase greatly the government’s burden in asylum cases. Once the alien denies having received a formal offer, the burden shifts to the government to prove that the alien did receive some sort of offer. However, the circumstantial evidence which the Department of Homeland Security (“DHS”) typically uses to prove an asylum case will be largely useless. This сase is a perfect example of the difficulty DHS will face in future asylum proceedings: During their hearing, the Maharajs admitted to living a perfectly happy life in Canada; yet the circumstances of their stay, under the majority construct, may only be used to show whether or not the Maharajs received an “offer.” If the evidence shows that they did not receive an offer, any other evidence — even if patently and obviously probative — is automatically disregarded. Simply, the majority’s construct will hamstring DHS to an intolerable and unreasonable degree in future asylum proceedings.
V
The Maharajs emigrated from Canada, where they had lived peacefully for four
. The INS attorney and Mr. Maharaj had the following dialogue:
Q. Have you at anytime after you've left Canada attempted to find out what the decision on your asylum application was in Canada?
A. No.
*980 Q. You don’t know what status you are in? You don’t know if it was denied? You don’t know if it was granted?
A. No, I don't.
Q. So, it's possible that you could have refugee status in Canada and not even know it?
A. Could be.
. In any event, there is a certain irony to the majority’s holding, under these circumstances, that the Maharajs never received an "offer” of permanent resettlement. It was, after all, the Maharajs’ voluntary choice to abandon prematurely their asylum application in Canada.
. The majority suggests that we misread "offer of” for "offer or." Maj. Op. at 975. While we agree, of course, with the majority that the mandatory bar applies if the alien receives "an offer of permanent resident status, citizenship, or some other type of permanent resеttlement,” § 208.15 (emphasis added), we do not agree that only such a showing will suffice. My analysis is not rooted in the substitution of "of” for "or,” but rather in the regulation’s plain lack of exclusivity.
.Even granting, as the majority concludes, that the existence vel non of an "offer” is a " ‘prime element in the firm resettlement inquiry,’ ” Maj. Op. at 973 (quoting Abdille v. Ashcroft,
Indeed, by reading the "firm resettlement” as coextensive with receipt of an "offer” of permanent resettlement, the majority renders the phrase "firm resettlement” meaningless. If the regulations had intended to equate firm resettlement exactly with the existence of an "offer” for permanent resettlement, then why should the phrase "firm resettlement” appear in the regulations at all? Under the majority’s reading, § 208.13 (c)(2)(i)(B), which bars asylum applications for those "firmly resettled,” should bar asylum applications for those who have received an offer, and § 208.15 should then define an "offer of permanent resettlement.” That is not what the regulations say, though that is the effect of the majority’s interpretation. In my view, the text and structure of the regulations treat "firm resettlement” as a broader concept than the existence of an "offer.”
The majority contends, however, that this interpretation is inconsistent with the regulation, which "plainly contemplates that an alien may have 'entered' a third country with an offer of 'some other type of permanent resettlement^]' ” Maj. op. at 975. The majority is mistaken. The regulation states that "An alien is considered to be firmly resettled if ..he or she entered into another country with, or while in that country received an offer ...” § 208.15 (emphasis added). Plainly, some forms of permanent resettlement may be received on "entr[y]”; others, however, may be received later. This broad language in no way precludes — and, if anything, demands — an interpretation that allows for consideration of certain types of permanent resettlement that accrue over time. Simply, the regulation’s “or” phraseology clearly encompasses a variety of types of resettlement and the majority errs in giving a narrow reading to such plainly broad language.
. The majority relies heavily on 1990 amendments to the regulations, and discounts pre-1990 precedent. The majority concludes that “until October 1990 ... an alien’s resettlement elsewhere was only a factor to be considered by immigration judges, the BIA, and the courts in evaluating an asylum claim as a matter of discretion.” Maj. Op. at 968. After 1990, however, “the INS amended its regulations concerning firm resettlement, providing for a mandatory denial of asylum upon a finding of firm resettlement.” Abdille v. Ashcroft,
. Not surprisingly, we have imported this policy objective into our case law. Most pertinently, in Yang v. INS,
. Indeed, other Circuits have understood our precedents perfectly well. For example, the Seventh Circuit explicitly rejected Cheo and concluded that "the primary and most important inquiry in any analysis of firm resettlement is whether or not the stopover country has made some type of” offer "of permanent resettlement.” Diallo v. Ashcroft,
. Ali v. Ashcroft,
For similar reasons, Camposeco-Montejo v. Ashcroft,
. As noted by the majority, Farbakhsh relied on In re Soleimani, 20 I. & N. Dec. 99, 104,