Maharaj v. Gonzales , 416 F.3d 1088 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINODH PARSAD MAHARAJ; SUNITA  No. 03-71066
DEVI MAHARAJ; PREETIKA MAHARAJ;
MEENAL MAHARAJ; VINEET Agency Nos.
MAHARAJ, A71-788-923
Petitioners,
 A71-788-924
A72-402-323
v.
A72-402-324
ALBERTO R. GONZALES, Attorney A72-402-325
General,
Respondent.

VINODH PARSAD MAHARAJ; SUNITA  No. 03-73995
DEVI MAHARAJ; PREETIKA MAHARAJ;
MEENAL MAHARAJ; VINEET Agency Nos.
MAHARAJ, A71-788-923
Petitioners,
 A71-788-924
A72-402-323
v.
A72-402-324
ALBERTO R. GONZALES, Attorney A72-402-325
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 12, 2005—San Francisco, California
Filed August 4, 2005
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Andrew J. Kleinfeld, Circuit Judges.
10067
10068 MAHARAJ v. GONZALES
Opinion by Judge O’Scannlain
10070 MAHARAJ v. GONZALES
COUNSEL
Ashwani K. Bhakhri, Law Offices of Ashwani K. Bhakhri,
Burlingame, California, argued the cause for the petitioner,
and filed a brief.
MAHARAJ v. GONZALES 10071
James E. Grimes, Office of Immigration Litigation, United
States Department of Justice, Washington, D.C., argued the
cause for the respondent. Peter D. Keisler, Assistant Attorney
General, Richard E. Evans, Assistant Director, and Nancy E.
Friedman, Office of Immigration Litigation, United States
Department of Justice, Washington, D.C., were on the briefs.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a Fijian citizen’s four-year resi-
dence in Canada, which ended when he entered the United
States, constituted “firm resettlement” under federal immigra-
tion law, thus barring his claim for asylum here.
I
Vinodh Maharaj, his wife, and two of their three children
are citizens of Fiji,1 where they lived until November, 1987.
In March, 1987, Maharaj, who worked as a bus driver, was
instructed by his boss to help the Coalition Labor Party (CLP)
mobilize voters for the upcoming national election. His
election-related work involved transporting Indo-Fijian voters
to and from the polls in a bus festooned with CLP placards,
posters and flags. Although Mr. and Mrs. Maharaj were not
affiliated with any political party, they believe that ideological
support for the CLP party was imputed to them because of his
busing of voters and her non-partisan work at a polling station
located at the school where she worked as a secretary. This is
quite likely given the close identification of race and politics
in Fiji. In the 1987 election, native Fijians, who make up 51%
of the population, voted overwhelmingly for native Fijian par-
1
Maharaj is the principal petitioner for asylum; his wife’s petition, and
those of his three children, are derivative of his petition. The third child
was born in, and is a citizen of, Canada.
10072 MAHARAJ v. GONZALES
ties, and Indo-Fijians like the Maharajs, who make up 44% of
the population, voted overwhelmingly for the CLP and other
Indo-Fijian parties. After the election, which the CLP won,
Mr. Maharaj received several threats from native Fijians, who
blamed his busing for helping the CLP to gain power and
threatened to kill him and his family and to burn down his
house.
Two months later, the Fijian army, which is almost exclu-
sively native Fijian, overthrew the newly elected CLP govern-
ment. In the immediate wake of the coup, the Maharaj
family’s rented room was invaded by two soldiers, who stole
various items, tied Maharaj up and forced his wife to conduct
traffic in her underwear at gunpoint. Shortly after this inci-
dent, Mrs. Maharaj was assaulted by two soldiers on her way
to work. They forced her into an empty house and raped her,
breaking her right arm and burning her with cigarettes. When
she went to the police and to the hospital, she was turned
away and told that their services were only for native Fijians.
In June or July, Maharaj was attacked on his bus route by
native Fijians. They demanded money from him and, when he
refused, they broke two of his ribs, knocked him unconscious,
and left him with a seriously bruised jaw and cuts on his face.
Although he was able to receive medical attention in a hospi-
tal, when he went to the police they turned him away because
he was Indo-Fijian.
The next month, in August, the family’s rented room was
burned down and Mrs. Maharaj was burned, though not seri-
ously, in the fire. There were no witnesses, but Mr. Maharaj
believes that the fire was set by native Fijians.
Although no further attacks occurred after August, Mr.
Maharaj continued to receive general threats and harassment
at work from native Fijians, and he was hindered in his prac-
tice of Hindu worship. In November, the family left Fiji for
Canada and settled in Edmonton, where Mr. Maharaj has
MAHARAJ v. GONZALES 10073
some distant family. In Canada, they applied for permanent
residence as refugees.
Mr. Maharaj worked in Edmonton as a full-time janitor and
also as a bakery deliveryman while his wife received training
to become a nurse’s assistant and worked full-time for a year
caring for the elderly. Both Mr. and Mrs. Maharaj were given
Social Insurance Numbers and work authorization, their third
child was born in Edmonton, their children attended free pub-
lic school and the family received free health care from the
Canadian government. Although Mr. and Mrs. Maharaj com-
plained about working menial jobs that they did not enjoy,
and about stigma associated with being refugees, they were
able to worship freely at a Hindu temple and had non-Indian
and non-Fijian friends in Edmonton. The Immigration Judge
(the “IJ”) found that there is no question that they were free
from persecution in Canada.
After four years in Canada, the Maharaj family entered the
United States in March, 1991, at the border crossing between
Vancouver, Canada, and Blaine, Washington, in a vehicle
driven by a Canadian citizen. Both Mr. and Mrs. Maharaj
later testified about their reasons for leaving Canada for the
United States. Mr. Maharaj testified 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 get-
ting 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.”
After the family overstayed its permitted time in the United
States,2 Mr. and Mrs. Maharaj were served with Orders to
2
Despite their lack of identification papers, the U.S. border guard
appears to have negligently assumed that all the passengers in the vehicle
were Canadian citizens, and they were admitted as visitors with leave to
remain for six months.
10074 MAHARAJ v. GONZALES
Show Cause by the INS charging them and their children as
deportable. At their hearing, the family conceded deporta-
bility but Maharaj requested asylum and withholding of
removal. The IJ denied Maharaj’s request because he and his
family had been firmly resettled in Canada and he was, there-
fore, ineligible for asylum. The IJ also denied him withhold-
ing of removal because, although he had endured past
persecution, the IJ held that, because circumstances in Fiji had
changed since his departure in 1987, there is no clear proba-
bility that Maharaj’s life or freedom would be in danger upon
his return. The IJ designated Fiji as the country of removal for
the family, with the exception of the youngest child, who is
a Canadian citizen by birth, whose country of removal was
designated as Canada.
Before his appeal had been heard by the Board of Immigra-
tion Appeals (the “BIA”), Maharaj filed a motion to reopen
the case (not with the Immigration Court, but with the BIA)
based on new evidence of conditions in Fiji and also submit-
ted a one-page fax purporting to show that his Canadian asy-
lum application had been denied. In due course, the BIA
affirmed the IJ’s decision in a written opinion. It agreed that
Maharaj was ineligible for asylum because his family had
been firmly resettled in Canada, and, in the alternative, it held
that the presumption of a well-founded fear of persecution
had been rebutted by evidence of changed circumstances in
Fiji. It also affirmed the IJ’s decision to deny withholding of
removal. Maharaj’s motion to reopen, together with the fax,
was treated by the BIA as a motion to supplement the record
and was denied.
Maharaj again petitioned the BIA to reopen his case, based
on the coup that had occurred in Fiji in May, 2000, which had
also been the basis for his first motion to reopen. The BIA
issued a second opinion, which held that the evidence of
changed conditions in Fiji had already been considered and
rejected and did not warrant reopening the case.
MAHARAJ v. GONZALES 10075
Maharaj timely appeals the BIA decision affirming the IJ’s
original decisions to deny him asylum and withholding of
removal. He has not challenged the BIA’s denial of his
motion to reopen and thus that claim has been waived. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
II
[1] The plain language of the firm resettlement regulation3
requires that a petitioner be denied asylum if he has been
“firmly resettled” in a third country prior to entering the
United States. See 8 C.F.R. § 208.13(c)(2)(i)(B) (1999); see
also Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir. 1999).
“Firmly resettled” means that, “prior to arriving in the United
States, [the petitioner] entered into another nation with, or
while in that nation received, an offer of permanent resident
status, citizenship, or some other type of permanent resettle-
ment.” 8 C.F.R. § 208.15.4 Despite this language, this court
3
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, his case
must be reviewed under the firm resettlement provision set out in 8 C.F.R.
§ 208.13(c)(2)(i)(B). See Ali v. Ashcroft, 394 F.3d 780, 789 n.9 (9th Cir.
2005) (“Deqa Ali”).
4
In 1996, the firm resettlement bar to asylum was codified at 8 U.S.C.
§ 1158(b)(2)(A)(vi), but the definition at 8 C.F.R. § 208.15 remained the
same. Even when this provision applies, there are two exceptions under
which a petitioner may rebut a prima facie showing of firm resettlement.
These exceptions are:
(a) That his or her entry into that country was a necessary conse-
quence of his or her flight from persecution, that he or she
remained in that country only as long as was necessary to arrange
onward 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 immi-
10076 MAHARAJ v. GONZALES
has consistently held that, in the absence of evidence of such
offer, a petitioner’s extended, undisturbed residence in a third
country creates a presumption of firm resettlement that will
satisfy the definition. See Cheo v. INS, 162 F.3d 1227, 1229
(9th Cir. 1998); see also Andriasian, 180 F.3d at 1043.
This “Cheo” presumption is a useful complement to the
plain language of the firm resettlement regulation. In this con-
text, there is an incentive on the part of the petitioner to con-
ceal evidence of an offer of permanent resettlement in a third
country because producing it would defeat his claim. It is,
therefore, reasonable and necessary to look to the length of
the petitioner’s stay in the third country and to the circum-
stances of his life there to decide whether or not the presump-
tion of firm resettlement survives.
A
[2] Although not dictated by the text of 8 C.F.R. § 208.15,
the Cheo presumption is consistent with the Supreme Court’s
only exegesis of the firm resettlement doctrine. In 1971, the
Court decided the case of a native of Red China who had fled
for Hong Kong in 1953, where he lived until 1965, when he
applied for asylum in the United States. Rosenberg v. Yee
Chien Woo, 402 U.S. 49, 50 (1971). Although the Displaced
Persons Act of 1948 and its successor statute, the Refugee
Relief Act of 1953, had both explicitly included the concept
of “firm resettlement,” when the 1953 Act was extended in
gration judge shall consider the conditions under which other res-
idents 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, public relief,
or naturalization, ordinarily available to others resident in the
country.
MAHARAJ v. GONZALES 10077
1957, the reference to “firm resettlement” was omitted from
the statute. Id. at 54-55. The revised definition of “refugee,”
however, required that the petitioner have “fled” persecution
and, focusing on this provision, the Court held that the firm
resettlement doctrine persisted in the new definition of “refu-
gee” because “both the terms ‘firmly resettled’ and ‘fled’ are
closely related to the central theme of all 23 years of refugee
legislation—the creation of a haven for the world’s homeless
people.” Id. Writing for the Court, Justice Black explained
that:
[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 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 inter-
pretation would subvert the lofty goals embodied in
the whole pattern of our refugee legislation.
Id. at 56. The Court also announced that “the correct legal
standard” to apply in cases where a petitioner has fled perse-
cution is that the petitioner’s “physical presence [in the
United States] must be one which is reasonably proximate to
the flight and not one following a flight remote in point of
time or interrupted by intervening residence in a third country
reasonably constituting a termination of the original flight in
search of refuge.” Id. at 56-57 (internal quotation marks omit-
ted).
We have recognized that the Court’s reasoning in Woo
applies also to the current definition of firm resettlement.
Referring to Woo, we have held that “[f]irm resettlement has
long been a decisive factor in asylum policy. . . . Nothing in
the Refugee Act or its legislative history alters the long-
standing significance of firm resettlement to the asylum pro-
cess.” Yang v. INS, 79 F.3d 932, 939 (9th Cir. 1996); see also
10078 MAHARAJ v. GONZALES
Ali v. Reno, 237 F.3d 591, 594 (6th Cir. 2001) (extending the
Supreme Court’s holding in Woo to the Refugee Act of 1980).
1
[3] The Supreme Court’s reasoning in Woo is consistent
with both the origins of, and the continuing rationale support-
ing, 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.), announced 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 ful-
lest extent possible.
Refugee Act § 101. This statement, like the legislation it
accompanied and the current iteration of the statute, recog-
nizes the co-operative nature of the obligations described in
the 1967 United Nations Protocol Relating to the Status of
Refugees (the “1967 Protocol”), to which the United States
acceded in 1968. See Preamble to 1967 Protocol, Jan. 31,
1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (1968) (“[T]he grant
of asylum may place unduly heavy burdens on certain coun-
tries, and . . . a satisfactory solution of a problem of which the
United Nations has recognized the international scope and
nature cannot therefore be achieved without international co-
operation.”).
A consequence of the international and co-operative nature
of our obligations under the 1967 Protocol is that these obli-
gations, though freely undertaken and diligently executed, are
not boundless. The most obvious limitations are the discretion
bestowed on the Attorney General to accept or to reject the
MAHARAJ v. GONZALES 10079
asylum application of a qualified refugee, see 8 U.S.C.
§ 1158(b)(1) (“The Attorney General may grant asylum to an
alien who has applied for asylum in accordance with the
requirements and procedures established by the Attorney
General under this section if the Attorney General determines
that such alien is a refugee . . . .”) (emphasis added), and the
numerical limit on the number of refugees that may be admit-
ted into the United States each year. See 8 U.S.C. § 1157(a).
These limitations are consistent with the Supreme Court’s
observation in Woo that “refugees in flight from persecution”
should not be forced to compete with “the world’s settled ref-
ugees,” 402 U.S. at 56, for the finite number of places avail-
able in the United States each year. Adherence to this limiting
rule most justly discharges our nation’s obligations and most
effectively encourages those of our fellow contracting nations.
B
Those cases in which we have held that evidence of an
offer vel non of permanent resettlement is the determinative
factor in applying the firm resettlement bar have also affirmed
the continuing vitality of the Cheo presumption and of the
Supreme Court’s holding in Woo.
1
In Andriasian, the petitioner was an Azeri who had fled
with his family to Armenia to escape persecution in his native
country. 180 F.3d at 1036. For forty-four months the family
traveled between Russia, Armenia and the Ukraine, moving
nine times to avoid further persecution. Id. When they finally
reached the United States and applied for asylum, the IJ found
that, “ ‘except for a brief reference on cross-examination to
having problems with religious practice in Armenia . . . the
respondent did not assert any problems while living in Arme-
nia . . .’ [and] the Armenian government had neither pre-
vented Mr. Andriasian’s resettlement nor imposed restrictions
on the Andriasian family.” Id. at 1039. On the basis of these
10080 MAHARAJ v. GONZALES
findings, the IJ held that the Andriasian family had been
firmly resettled in Armenia. Id. On appeal, the BIA reversed
the IJ’s application of the firm resettlement bar but denied
Andriasian’s appeal on other grounds. Id.
On petition to this court, the government did not challenge
the BIA’s reversal of the IJ’s firm resettlement finding.
Though the issue was not properly before us, we gave our
imprimatur to the BIA’s decision and observed that
the INS regulation . . . mandates a denial of asylum
if a third country in which an alien has resided after
becoming a refugee offers him permanent resettle-
ment; such “resettlement” precludes asylum, unless
the application can demonstrate that his stay in the
third country lasted only until he could arrange for
further travel or that the conditions of life in that
country would be unduly restrictive.
Id. at 1043. This statement generally follows the text of 8
C.F.R. § 208.15, including the two exceptions to firm resettle-
ment, and is consistent with the Court’s acknowledgment in
Woo that:
Certainly many refugees make their escape to free-
dom 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 aban-
doned. . . . [T]he 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 inter-
rupted by intervening residence in a third country.”
402 U.S. at 57 n.6.
[4] These articulations of asylum policy also support the
extension of the Cheo presumption of firm resettlement to the
MAHARAJ v. GONZALES 10081
facts of this case. The Maharaj family was not temporarily
delayed in Canada in the course of an “escape to freedom”
and the family’s four-year, undisturbed residence in Edmon-
ton was not one of a series of “successive stages” on a contin-
uous journey from Fiji to the United States. All the relevant
evidence in the record, including Mr. and Mrs. Maharaj’s tes-
timony, establishes that Canada was the family’s chosen des-
tination when they left Fiji in 1987 and that it was only in
1991, after they became discouraged by their jobs in Canada,
that they chose to abandon their pending asylum claim there
to come to the United States.
2
In Deqa Ali, we considered the case of a Somali petitioner
who had fled persecution in her native country. She and her
family first sought refuge in Ethiopia, where members of cer-
tain high-caste Somali clans have been offered refugee status,
but, as a member of the low-caste Muuse Diriiye clan, she
was not offered that protection. 394 F.3d at 783. Ali spent five
years in Ethiopia as an undocumented alien trying to arrange
further travel to somewhere that would offer her permanent
settlement before she was able to make her way to the United
States. Id. at 783-84. Despite the length of her stay in Ethio-
pia, we held that the firm resettlement bar did not apply
because “the fact that Ali fortuitously evaded detection by the
government while living illegally in Ethiopia does not allow
for a finding that Ali was firmly resettled.” Id. at 790. We also
held that “the Cheo presumption ‘does not mean that as soon
as a person has come to rest at a country other than the coun-
try of danger, he cannot get asylum in the United States.’ ” Id.
(quoting Cheo, 162 F.3d at 1230).
We further opined that, as a general rule, “the [Cheo] pre-
sumption only applies when ‘there is no direct evidence one
way or the other as to whether the [asylum applicants] have
or had the right’ of permanent resettlement in their country of
first asylum.” Id. (quoting Cheo, 162 F.3d at 1229). Of
10082 MAHARAJ v. GONZALES
course, in Deqa Ali we did not consider the case of a peti-
tioner who voluntarily terminates an active asylum applica-
tion in a safe third country. Without passing on the
applicability of Deqa Ali’s general statement of the firm reset-
tlement rule in other contexts, its scope does not extend to the
facts of this case.
[5] Here, we know that the Maharaj family’s asylum claim
was still pending when it chose to leave Canada and so we
have direct evidence that the members of the family never
actually received an offer of permanent resettlement.5 Never-
theless, it would be contrary to the limited, co-operative and
reciprocal nature of our national asylum obligations, and to
the Supreme Court’s holding in Woo, to apply the general rule
announced in Deqa Ali to the facts of this case. Forum-
shopping among aliens who are no longer actively fleeing
persecution undermines the integrity of the international asy-
lum regime established by the 1967 Protocol, and it would be
contrary to our national obligations under that treaty to
indulge the Maharaj family’s economic preference for asylum
in the United States over Canada.
5
Maharaj contends that he cannot return to Canada because, since his
family’s departure fourteen years ago, his application for asylum there was
denied for failure to appear at a hearing. When determining whether an
asylum applicant was firmly resettled, we look to his status in the third
country immediately prior to his entry into the United States. See Vang v.
INS, 146 F.3d 1114, 1117 (9th Cir. 1998) (“[T]he fact that Vang allowed
his French travel document to expire after he entered the United States
cannot alter the disposition of his asylum claim.”); Yang v. INS, 79 F.3d
932, 934 (9th Cir. 1996) (holding that petitioners were firmly resettled
despite their claim that they would no longer be able to return to the coun-
try of firm resettlement due to the expiration of travel documents). In this
case, Mr. and Mrs. Maharaj testified that their family lived in Canada for
four years, enjoying the protection of the government of Canada, including
free health care, free public schooling, work authorization, Social Insur-
ance Numbers, driver’s licenses and the freedom to move unimpeded
around the country. They had also applied for asylum in Canada and that
claim was pending when they left to come to the United States. That is the
status we must consider in evaluating Maharaj’s petition.
MAHARAJ v. GONZALES 10083
C
[6] When a petitioner has enjoyed an extended, undisturbed
stay in a safe, third country and has begun the process of
applying for permanent residence, citizenship, or another
form of permanent resettlement, which he subsequently repu-
diates or abandons in favor of entry into the United States, the
burden is on the petitioner to rebut the Cheo presumption of
firm resettlement. Cf. Cheo, 162 F.3d at 1230 (“[W]here the
duration and circumstances indicate that the asylum seeker
may remain in the third country, then it is incumbent upon
him to show the contrary.”). This burden cannot be met sim-
ply by showing that, because his immigration or asylum status
had not yet been resolved when he left the third country, he
never received an offer of permanent resettlement; he must
show that at least one of the two exceptions to “firm resettle-
ment” applies. See 8 C.F.R. § 208.15(a)-(b).
[7] Maharaj freely chose to apply for asylum in Canada
and, while that process was pending, enjoyed a sufficiently
extended and undisturbed stay there to establish a Cheo pre-
sumption of firm resettlement. The burden is on him to rebut
this presumption. Because we agree with the IJ’s conclusion
that “the suggestion that [the Maharaj family] w[as] perse-
cuted in Canada simply is not acceptable on the facts of the
case,” and because Maharaj has not presented any other rele-
vant evidence to rebut the presumption of firm resettlement,
he has not met his burden.
III
[8] Maharaj also contends that, in light of the coup that
occurred in May 2000, he is eligible for withholding of
removal because it is more likely than not that he will be per-
secuted upon return to Fiji. However, Maharaj has failed to
show that his minor role in an election 18 years ago, which
he claims triggered his persecution in the wake of the 1987
coup, would motivate similar persecution today, and the
10084 MAHARAJ v. GONZALES
Country Reports contain evidence of a significant lessening of
political and racial tension since 2000. We are, therefore, sat-
isfied that the BIA’s denial of withholding of removal is sup-
ported by substantial evidence in the record concerning the
circumstances of the original persecution and current country
conditions. See Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.
1995).
The petition for review is DENIED.