Maharaj v. Gonzales

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 Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted En Banc March 23, 2006
San Francisco, California
Filed June 9, 2006
6389
6390 MAHARAJ v. GONZALES
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Diarmuid F. O’Scannlain, Pamela Ann Rymer,
Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber,
William A. Fletcher, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Johnnie B. Rawlinson, Richard R. Clifton,
Jay S. Bybee, and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Rymer;
Parial Concurrence and Partial Dissent by
Judge O’Scannlain
MAHARAJ v. GONZALES 6393
COUNSEL
Robert B. Jobe (argued), San Francisco, California, and Ash-
wani K. Bhakhri (signed the briefs), Burlingame, California,
for the petitioners.
6394 MAHARAJ v. GONZALES
Alison Marie Igoe (argued), and Nancy E. Friedman (signed
the briefs), United States Department of Justice, Washington,
D.C., for the respondent.
OPINION
RYMER, Circuit Judge:
Vinodh 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 regula-
tions applicable to Maharaj’s application, the Attorney Gen-
eral 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 Maharajes 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 Maharajes 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 res-
idence in Canada, where they were able to work and receive
benefits, and their pending application for refugee status, the
MAHARAJ v. GONZALES 6395
Immigration Judge (IJ) applied a rebuttable presumption of
firm resettlement based upon our opinion in Cheo v. INS, 162
F.3d 1227 (9th Cir. 1998). As Maharaj provided no evidence
in rebuttal, the IJ found that he was statutorily ineligible for
asylum. The BIA affirmed.
A panel of this court denied Maharaj’s petition for review.
Maharaj v. Gonzales, 416 F.3d 1088 (9th Cir. 2005). We are
rehearing this petition en banc in order to consider afresh
what evidence the Department of Homeland Security (DHS)1
must produce in order to meet its initial burden of showing
that the mandatory bar applies, such that the burden shifts to
the alien to show that he was not firmly resettled. This is not
an easy task, because the circuit courts of appeals are not of
one mind and construing the regulation in accordance with its
plain language is not entirely satisfying. Nevertheless,
§ 208.15 reflects the agency’s interpretation of firm resettle-
ment, and it plainly requires DHS to make a threshold show-
ing that the alien had an offer of some type of official status
permitting him to reside in the third country indefinitely. As
have others, we conclude that this showing can be made by
direct evidence of an offer issued by the third country’s gov-
ernment or, where no direct evidence of a formal government
offer is obtainable, by circumstantial evidence of sufficient
force to indicate that the third country officially sanctions the
alien’s indefinite presence. Once DHS has adduced some evi-
dence of official recognition of the alien’s right to stay in the
third country, the burden shifts to the alien to show that he
falls within one of the regulatory exceptions, § 208.15(a) or
(b). At this stage, the IJ is to consider the conditions under
which other residents of the third country live, and how the
1
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 Maharajes, we will generally refer to the government
as DHS.
6396 MAHARAJ v. GONZALES
applicant was treated by comparison. 8 C.F.R. § 208.15(b). So
holding, we align ourselves with Judge Becker’s leading opin-
ion for the Court of Appeals for the Third Circuit in Abdille
v. Ashcroft, 242 F.3d 477 (3d Cir. 2001), and with the sub-
stantially similar approach embraced by the First, Seventh,
Eighth and Tenth Circuits.
In this case, the IJ lacked sufficient evidence that the man-
datory 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 appli-
cation for refugee status, or the benefits he received, mani-
fested some type of entitlement to stay indefinitely. However,
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
Maharaj can no longer have a well-founded fear of future per-
secution if returned. Because the BIA did not make an indi-
vidualized 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 Maharaj, 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, display-
ing CLP placards, posters, and flags. After the election, which
the CLP won, Maharaj received several threats from native
Fijians, including a threat to kill him and his family and to
MAHARAJ v. GONZALES 6397
burn down their residence. Maharaj believes that the native
Fijians blamed the CLP victory in part on his busing support-
ers to the polls.
Two months later, the Fijian army, which is composed
almost exclusively of native Fijians, overthrew the CLP gov-
ernment. 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 or July, Maharaj was attacked by native Fijian sol-
diers 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
Maharaj’s sister lived. The Maharaj family settled in Edmon-
ton 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 Cana-
dian government never asked him to leave and that he was
6398 MAHARAJ v. GONZALES
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 tes-
tified that he had work authorization 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 car driven by a Canadian citizen. Apparently
the two Canadian citizens in the front seat were asked for
identification, but the Maharajes 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 section 241(a)(1)(B) of the Immigra-
tion and Nationality Act. Maharaj (and his family deriva-
tively) conceded deportability but requested asylum and
withholding of removal.
MAHARAJ v. GONZALES 6399
Following a hearing at which Maharaj and his wife testi-
fied, the IJ found that the Canadian government has a reputa-
ble 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 Maharajes had spent a significant amount
of time in Canada, which is a safe country, and were “at-
tempting 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 lit-
tle or no possibility that the Maharajes would again suffer per-
secution 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 asy-
lum 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 Bur-
bano, 20 I. & N. Dec. 872, 874 (BIA 1994), which indicates
6400 MAHARAJ v. GONZALES
that the Board adopted the immigration judge’s decision.
Tchoukhrova v. Gonzales, 404 F.3d 1181, 1188 (9th Cir.
2005) (explaining that “[w]hen the BIA does not express any
disagreement with any part of the immigration judge’s deci-
sion, but instead cites Burbano, the BIA adopts his decision
in its entirety”). In the alternative, the BIA found that
Maharaj’s claim failed because the presumption of a well-
founded fear of persecution had been rebutted by evidence of
changed circumstances in Fiji. The BIA interpreted Maharaj’s
motion to reopen as a motion to supplement the record, which
it denied because the fax cover sheet was both unauthenti-
cated and not convincing.
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, not-
ing 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 condi-
tions was only relevant to Maharaj’s withholding of deporta-
tion 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.
Maharaj timely appeals the BIA decision affirming the IJ’s
denial of asylum and withholding of deportation. Maharaj did
not challenge the BIA’s denial of his motion to reopen in his
opening brief and thus has waived appeal on that issue. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996) (holding that a petitioner’s failure to address the BIA’s
denial of a motion to reopen in the argument portion of his
opening brief on appeal waived the issue).
II
A finding of “firm resettlement” is a factual determination
that we review under the deferential substantial evidence stan-
MAHARAJ v. GONZALES 6401
dard. See Nahrvani v. Gonzales, 399 F.3d 1148, 1151-52 (9th
Cir. 2005) (applying substantial evidence standard to firm
resettlement determination). Other circuits agree. See Sall v.
Gonzales, 437 F.3d 229, 232 (2d Cir. 2006) (per curiam); Fir-
mansjah v. Gonzales, 424 F.3d 598, 601 (7th Cir. 2005) (cit-
ing Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir. 2004));
Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir. 2004); Rife v.
Ashcroft, 374 F.3d 606, 611-12 (8th Cir. 2004); Elzour v. Ash-
croft, 378 F.3d 1143, 1150-51 & n.9 (10th Cir. 2004); Abdille,
242 F.3d at 483 (3d Cir. 2001); Mussie v. INS, 172 F.3d 329,
331 (4th Cir. 1999). Under this standard, the BIA’s finding of
firm resettlement “must be upheld if supported by reasonable,
substantial, and probative evidence on the record considered
as a whole,” and we will reverse only if a reasonable fact-
finder would have been compelled to reach a different conclu-
sion. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)
(internal quotation marks omitted); see also Kotasz v. INS, 31
F.3d 847, 851 (9th Cir. 1994).
III
[1] The Attorney General has discretion to grant asylum to
an alien who is a “refugee.” 8 U.S.C. § 1158(b)(1). A “refu-
gee” 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 offi-
cer 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).2 “Firm resettlement” is
2
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
6402 MAHARAJ v. GONZALES
defined for purposes of the mandatory bar in 8 C.F.R.
§ 208.15. Section 208.15 provides:
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, citi-
zenship, or some other type of permanent resettle-
ment unless he or she establishes:
(a) That his or her entry into that country was a nec-
essary consequence of his or her flight from persecu-
tion, 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 immigra-
tion judge shall consider the conditions under which
other residents of the country live; the type of hous-
ing, whether permanent or temporary, made avail-
able 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 natural-
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 reset-
tlement remained the same.
MAHARAJ v. GONZALES 6403
ization, ordinarily available to others resident in the
country.
8 C.F.R. § 208.15.3
Rather than recite the history of the resettlement doctrine
here, we rely on Judge Becker’s opinion in Abdille, which
comprehensively examines it. 242 F.3d at 483 & n.4. The bot-
tom line is that until October 1990, when §§ 208.13(c)(2)
(i)(B) and 208.15 created the rule of mandatory denial for a
firmly resettled alien seeking asylum and defined “firm reset-
tlement,” 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.
See Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971) (hold-
ing that despite a statutory change from “firm resettlement” to
“flight” from persecution in the Refugee Relief Acts of 1957,
1960, and 1965, firm resettlement was not irrelevant but was
one of the factors to be taken into account in determining
whether a refugee seeks asylum as a consequence of his flight
to avoid persecution); Matter of Soleimani, 20 I. & N. Dec.
99, 104 (BIA 1989) (holding that regulations requiring denial
of admission to a firmly resettled refugee were only binding
on INS directors, not immigration judges or the Board itself,
such that resettlement in a third country was a factor to be
considered in evaluating an asylum claim as a matter of dis-
cretion), superseded by regulation as stated in Abdille, 242
F.3d at 483 n.4.
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, eco-
nomic conditions in the third country, and the like” in favor
of, or against, a grant of asylum. Diallo, 381 F.3d at 693. The
3
Whether or not an asylum claim must be denied, it may be in the dis-
cretion 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.
6404 MAHARAJ v. GONZALES
cases most frequently cited for doing so are Chinese Ameri-
can Civic Council v. Attorney General, 566 F.2d 321 (D.C.
Cir. 1977), and Farbakhsh v. INS, 20 F.3d 877, 881 n.2 (8th
Cir. 1994) (noting that the mandatory bar did not apply to Far-
bakhsh’s application for asylum, which was filed before Octo-
ber 1, 1990).4 However, as one commentator has observed,
the 1990 regulations “deemphasiz[ed] the previously para-
mount question whether the refugee remains in flight,” and
“reoriented the central inquiry of firm resettlement to focus
the adjudicator on the actual existence vel non of an offer of
permanent resettlement.” Robert D. Sloane, An Offer of Firm
Resettlement, 36 GEO. WASH. INT’L L. REV. 47, 57 (2004).
Since then, most, but not all, circuits have oriented the focus
accordingly.
4
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.” 566
F.2d at 326, 328. It indicated that factors other than duration of residence
may be relevant to the firm resettlement inquiry, including “[a]n appli-
cant’s family ties, intent, business or property connections and other mat-
ters,” but that those factors were insufficient to rebut the finding that these
particular aliens were firmly resettled. Id. at 328 n.18. The court was also
influenced by governmental assurance of continued residence for, as the
court explained, under the Hong Kong Ordinance of 1971 aliens who lived
there at least seven years, whether legally or not, had reasonable assurance
they would not be deported and hence were firmly resettled. Id. at 328 &
n.17.
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 applica-
tion for refugee status there; his application for refugee status was pend-
ing; 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. 20 F.3d at 882.
MAHARAJ v. GONZALES 6405
A
[2] We have addressed the mandatory bar several times,
and have held that there must be evidence of an offer of per-
manent, not temporary, residence in a third country where the
applicant lived peacefully and without restriction. Ali v. Ash-
croft, 394 F.3d 780 (9th Cir. 2005); Camposeco-Montejo v.
Ashcroft, 384 F.3d 814 (9th Cir. 2004). The fact that an alien
no longer has travel authorization does not preclude a finding
of permanent resettlement when the applicant has permitted
his documentation to lapse. Vang v. INS, 146 F.3d 1114 (9th
Cir. 1998); Yang v. INS, 79 F.3d 932 (9th Cir. 1996). And in
the absence of direct evidence of an offer of some type of per-
manent resettlement, a lengthy and undisturbed residence in
the third country may establish a rebuttable presumption that
he has the right to return and remain there indefinitely, thus
shifting the burden to the applicant to show otherwise. Cheo,
162 F.3d at 1229; see also Andriasian v. INS, 180 F.3d 1033
(9th Cir. 1999).
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. “[T]here [was] no
direct evidence one way or the other as to whether the Cheos
have or had the right to return to Malaysia,” 162 F.3d at 1229,
but the IJ presumed a right to return from their three-year
undisturbed stay. We concluded this was permissible, reason-
ing that the regulations then in place provided that if a ground
for denial of asylum, such as firm resettlement, “may apply,”
the applicant has the burden of proving by a preponderance of
evidence that the ground does not apply.5 Three years of
5
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
6406 MAHARAJ v. GONZALES
peaceful residence established that the ground of firm resettle-
ment in Malaysia “might apply” because it was enough to
infer that Malaysia allowed the Cheos to stay indefinitely.
Thus, we held that “[a] duration of residence in a third coun-
try sufficient to support an inference of permanent resettle-
ment in the absence of evidence to the contrary shifts the
burden of proving absence of firm resettlement to the appli-
cant.” Id.6
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 exer-
cised its discretion to deny asylum on the ground of firm resettle-
ment,7 even though it had determined that the mandatory bar
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 appli-
cant, he or she shall have the burden of proving by a preponder-
ance of the evidence that he or she did not so act.
8 C.F.R. § 208.13(c)(2)(ii) (2000) (emphasis added).
6
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, 43 F.3d 1397 (10th Cir. 1994),
in which the petitioner had lived for twenty years in the United Arab
Emirates after fleeing Sudan. He possessed a “residence” visa/permit. The
court found this sufficient to suggest “permanent residence status, citizen-
ship or some other permanent resettlement,” and accordingly shifted the
onus to Abdalla to prove that his “extended, officially sanctioned” stay in
Abu Dhabi did not constitute a firm resettlement. Id. at 1399 (citing Chi-
nese Am. Civic Council, 566 F.2d at 326) (internal quotation marks omit-
ted).
7
The regulations in effect when Andriasian was decided provided:
An asylum application may be denied in the discretion of the
MAHARAJ v. GONZALES 6407
did not apply. We held that the presumption shifting the bur-
den to the applicant was inapplicable because unlike Cheo,
the duration and circumstances of Andriasian’s stay in Arme-
nia did not indicate that he was offered a permanent refuge.
We also noted that when Andriasian asked the government
about temporary resident status, he was told to go back to
Karabakh, and that the INS conceded on appeal that he was
not firmly resettled.
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 appli-
cants’ stays in Cheo and Vang, and his stay was not “undis-
turbed” 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
Somalia who lived in Ethiopia for five years were firmly
resettled in Ethiopia. The Ethiopian government never offered
assistance or legal status, and the Alis couldn’t work (except
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 Janu-
ary 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 regu-
lations to avoid confusion”).
6408 MAHARAJ v. GONZALES
under the table) or go to school. We held that “the plain lan-
guage and structure of [§ 208.15] require that an asylum
applicant be offered permanent resident status or its equiva-
lent by the country of first asylum to be considered firmly
resettled.” Ali, 394 F.3d at 789-90 (citing Abdille, 242 F.3d at
485). We also held that the IJ incorrectly interpreted Cheo as
standing for the proposition that “where an individual resides
for a number of years in a third country without being both-
ered it is appropriate to presume firm resettlement.” Id. at 790
(internal quotation marks omitted). Rather, we explained,
Cheo turned on the absence of evidence to the contrary and,
as Ali testified that she never received an offer of permanent
residence in Ethiopia, the presumption did not arise. In addi-
tion, we emphasized that because the plain language of the
regulation requires an offer of permanent residence, an offer
of temporary residence does not compel a finding of firm
resettlement.
B
The IJ in this case understood a rebuttable 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 “informa-
tion” 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 per-
MAHARAJ v. GONZALES 6409
mission to work in Canada and a pending application for refu-
gee or asylum status when he left; the problem is that there
is no evidence about what his work permit, or pending appli-
cation, 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 Cana-
dian 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 liv-
ing, working, and applying for some type of refugee or asy-
lum status amounts to a formal offer of resettlement such that
the burden of showing that he was not in fact resettled shifted
to Maharaj.
[3] Thus, we must decide what role, if any, the Cheo pre-
sumption 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 pend-
ing. This leads us, in turn, to consider anew how best to inter-
pret the firm resettlement regulation, and to clarify the
construct under which we analyze whether the mandatory bar
applies.
C
[4] Unfortunately, the BIA has not revisited firm resettle-
ment in a published opinion since Soleimani was decided in
1989 under a different, discretionary regime. However, our
colleagues on other circuits have done so, and we benefit
from their wisdom. There is general agreement (among cir-
cuits to comment) on several points:
First, the government bears the initial burden of showing
“an offer of permanent resident status, citizenship, or some
6410 MAHARAJ v. GONZALES
other type of permanent resettlement” such that the firm reset-
tlement bar applies and the burden shifts to the alien to rebut
it. See, e.g., Sall, 437 F.3d at 233-34 (noting that the IJ mis-
stated the burden of proof by putting it on the applicant before
the government established a prima facie case of firm resettle-
ment); Diallo, 381 F.3d at 693 (holding that after the govern-
ment meets its initial burden of demonstrating firm
resettlement, the asylum-seeker may rebut the presumption by
presenting evidence to the contrary or show that he falls
within one of the two exceptions in § 208.15(a) and (b));
Salazar, 359 F.3d at 50-51 (noting that the government bears
the initial burden of showing firm resettlement); Abdille, 242
F.3d at 491 (holding that “[u]nder the regulations, the INS
bears the initial burden of producing evidence that indicates
that the firm resettlement bar applies, and, should the INS sat-
isfy this threshold burden of production, both the burden of
production and the risk of non-persuasion then shift to the
applicant to demonstrate, by a preponderance of the evidence,
that he or she had not firmly resettled in another country”);
Mussie, 172 F.3d at 332 (holding that “[o]nce the INS met its
burden of introducing some evidence indicating that [peti-
tioner] had been ‘firmly resettled’ in Germany, [the peti-
tioner] bore the burden of demonstrating, by a preponderance
of the evidence, that she had not been resettled”); see also
Abdalla, 43 F.3d at 1399 (holding that once the government
presents some evidence indicating that asylum is unavailable
on the grounds of firm resettlement, the petitioner bears the
burden of proving that such ground does not apply).
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 evidence in making a prima facie,
or threshold, showing. Compare Abdille, 242 F.3d at 486-87
(adopting an offer-based approach and allowing non-offer-
based evidence at the threshold showing stage as a surrogate
for offer-based evidence when direct evidence is not obtain-
able), and Diallo, 381 F.3d at 694 (same), with Sall, 437 F.3d
MAHARAJ v. GONZALES 6411
at 233 (adopting a broader, “totality of the circumstances
approach” and treating non-offer-based evidence on a par
with offer-based evidence).
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 virtu-
ally all published cases where a finding of firm resettlement
has been upheld. See, e.g., Firmansjah, 424 F.3d at 602 (peti-
tioner had a permanent residence permit and entitlement to
return to third country for residence purposes); Salazar, 359
F.3d at 51 (petitioner had the third-country residency stamp
on passport that the third country had honored twice); Rife,
374 F.3d at 611 (the Israeli government offered petitioner per-
manent resettlement under the Law of Return, issued certifi-
cates evidencing citizenship, and issued passports); Mussie,
172 F.3d at 331 (petitioner was granted asylum in third coun-
try and had travel documentation from that country); Abdalla,
43 F.3d at 1399 (petitioner had a “residence” visa/permit).
Farbakhsh is the notable exception, but it was decided under
the superseded regime where firm resettlement was only one
of several factors to be considered in deciding whether to
grant or deny asylum.
[5] We agree with the consensus view that DHS bears the
initial burden of showing “an offer of permanent resident sta-
tus, citizenship, or some other type of permanent resettle-
ment” 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 ques-
tion is the nature of the threshold showing that will cause the
burden to shift to the alien, or support a finding of firm reset-
tlement 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 evi-
dence of permanent resettlement, allowing indirect, non-offer-
6412 MAHARAJ v. GONZALES
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 circum-
stances,” 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 “to-
tality of the circumstances” approach stem from the law on
firm resettlement as it developed under the pre-1990, discre-
tionary regime. See Abdille, 242 F.3d at 485-86 (describing
genesis of “totality of the circumstances” analysis).
[6] 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 ques-
tion 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 omit-
ted). The Seventh Circuit takes the same view. Diallo, 381
F.3d at 693 (stating that the “primary and initial consideration
. . . is a simple one — whether or not the intermediary country
has made some sort of offer of permanent resettlement”).8 We
8
Others have a similar position. See Salazar, 359 F.3d at 50-51 (opining
that the initial burden could be met “by producing evidence that the reset-
tling country’s government formally and affirmatively offered the alien
permanent resettlement, a term which includes — but is potentially more
expansive than — offers of citizenship or permanent residence”); Rife, 374
F.3d at 611 (stating that “the text of 8 C.F.R. § 208.15 makes this [whether
the country of prior resettlement offered citizenship, permanent resident
status, or some form of permanent resettlement] an important factor and,
indeed, the proper place to begin the firm resettlement analysis,” but leav-
ing room for a formal offer not to be dispositive in accord with the Eighth
Circuit’s prior decision in Farbakhsh); Elzour, 378 F.3d at 1151 (agreeing
with Abdille that § 208.15 “explicitly centers” the inquiry on an offer of
some type of official status).
MAHARAJ v. GONZALES 6413
implicitly employed this analysis in Cheo, and explicitly
adopted it in Ali. To the extent there is any doubt, we reaffirm
agreement with Abdille that § 208.15 plainly focuses the firm
resettlement inquiry on the existence vel non of an offer.
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.” 242 F.3d at 486-87 (noting
that we faced such a situation in Cheo). In the event that
direct evidence is unobtainable, “the IJ or BIA may find it
necessary to rely on non-offer-based factors, such as the
length of an alien’s stay in a third country, the alien’s intent
to remain in the country, and the extent of the social and eco-
nomic ties developed by the alien, as circumstantial evidence
of the existence of a government-issued offer.” Id. at 487.
Such factors may serve as a surrogate for direct evidence of
a formal offer “if they rise to a sufficient level of clarity and
force.” Id. Again, the Seventh Circuit is in accord. Diallo, 381
F.3d at 694 (recognizing that such circumstances may exist,
but holding that the IJ erred as he neither considered whether
there was an offer at all, nor suggested that he was using non-
offer-based factors as a surrogate).9
Opting for a “totality of the circumstances” approach, the
Second Circuit recently adopted a test under which immigra-
tion 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
9
The First Circuit recognized the principle in Salazar, 359 F.3d at 50-51
& n.4, but found it unnecessary to resolve the disagreement among circuits
because the IJ in that case did not rely on non-offer-based elements.
6414 MAHARAJ v. GONZALES
persons can expect to have. Of particular importance to this
inquiry is whether he received an actual offer of permanent
resident status.” Sall, 437 F.3d at 235 (footnote omitted). The
court gave two reasons, neither persuasive to us, for prefer-
ring the “broader conception of ‘firm resettlement’ ” reflected
in Mussie, Abdalla, Farbakhsh, and Chinese American Civic
Council.10 Sall, 437 F.3d at 232. First, the regulation refers to
“some other type of permanent resettlement” and thus pre-
sumably contemplates that foreign statutes which are not the
same as United States immigration provisions, and a foreign
system which does not include written documentation or for-
mal, state-issued identification cards, could nevertheless be
recognized by immigration judges determining whether an
alien was firmly resettled. Sall, 437 F.3d at 233. And second,
“the underlying purpose of asylum regulations — to provide
refuge to desperate refugees who reach our shores with
nowhere else to turn — accords with reserving the grant of
asylum for those applicants without alternative places of ref-
uge abroad, regardless of whether a formal ‘offer’ of perma-
nent settlement has been received.” Id.
10
Sall notes in parentheticals that the Fourth Circuit found firm resettle-
ment 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, 437 F.3d at 232-33. It notes that the Tenth Cir-
cuit in Abdalla considered family ties, but does not take note of the fact
that in addition to family ties, the petitioner possessed a “residence” visa/
permit for the UAE. Sall notes that the Eighth Circuit in Farbakhsh listed
a number of factors relevant to determining firm resettlement, and that the
D.C. Circuit in Chinese American Civic Council found that Chinese asy-
lum applicants had firmly resettled during a lengthy stay in Hong Kong,
but does not take note of the different regime under which Farbakhsh and
Chinese American Civic Council were decided, or of the importance that
the D.C. Circuit attached to “the added assurance” that a Hong Kong ordi-
nance gave to residents of more than seven years that they would not be
deported.
MAHARAJ v. GONZALES 6415
We remain convinced by Abdille’s reasoning and approach.
The regulation defining “firm resettlement” for purposes of
the mandatory bar could have reserved the grant of asylum for
aliens without other places of sanctuary “regardless of
whether a formal ‘offer’ of permanent settlement has been
received,” as Sall and the dissent suggest, but it doesn’t.
Instead, semantically, § 208.15 expressly focuses the initial
inquiry on entering the third country with, or receipt of, an
offer of some type of permanent resettlement. It is only after
this that, structurally, the regulation shifts the burden to the
alien and permits consideration of the conditions of his stay
in the third country. As the Seventh Circuit explained in
Diallo, “[t]he regulations do allow the immigration judge to
consider factors such as the length of time spent in the coun-
try, housing, and the type and extent of the refugee’s employ-
ment, among others, but only after making a preliminary
finding of a genuine offer vel non of permanent resettlement,
and only then when the applicant seeks to demonstrate that
she falls into one of the two exceptions.” 381 F.3d at 693; see
Abdille, 242 F.3d at 486 (explaining that § 208.15(b) prompts
the IJ to consider the enumerated non-offer-based elements
only in determining whether an exception applies).
Our dissenting colleagues would instead have “offer of”
mean offer or — “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.” Dis. op. at 6427. They
suggest that “firm resettlement” is not coextensive with
receipt of an offer of permanent resettlement because the reg-
ulation does not state that an offer is the exclusive means of
showing firm resettlement, id. at 6427 n.4 & 6434, and
because otherwise, the phrase “firm resettlement” wouldn’t be
necessary, id. at 6427 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
6416 MAHARAJ v. GONZALES
with an offer. Section 208.15 requires the existence vel non of
an offer even though it doesn’t say that “only” an offer quali-
fies, for an alien cannot possibly enter a third country with a
history there of residence, work, or social services. Put differ-
ently, 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 contem-
plates 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 “citi-
zenship.” 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 6434.
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 alternative, 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, discre-
tionary, non-burden-shifting regime. See Diallo, 381 F.3d
693-94 (observing that the “totality of the circumstances”
analysis is now outdated).
If direct evidence is unobtainable and circumstantial evi-
dence is received as a surrogate at the threshold stage, in order
to shift the burden to the alien the evidence must be of suffi-
cient force to show that the alien’s length of residence, intent,
and ties in the third country indicate that the third country
officially sanctions the alien’s indefinite presence. The focus
MAHARAJ v. GONZALES 6417
does not change; it remains on receipt of an offer of perma-
nent resettlement. See Firmansjah, 424 F.3d at 602 (distin-
guishing the use of circumstantial evidence to prove an offer
from the totality of the circumstances test).
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 invita-
tion”; 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 coun-
tries around the globe and was not meant to be a catch-all that
would undo the requirement of a governmental ‘offer.’ ”
Diallo, 381 F.3d at 694 n.5. It could include, for example, the
type of ordinance that the D.C. Circuit found significant in
Chinese American Civic Council for the assurance it gave of
the alien’s continued ability to stay in Hong Kong without
deportation after living there for seven years. Apart from this,
we leave the possibilities for “some other type” of permanent
resettlement to evolve on a case-by-case basis.
While we also acknowledge the dissent’s concern about
opening “the door to rampant country-shopping,” dis. op. at
6440, 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 unreason-
able thing for a regulation interpreting a mandatory bar to do,
as it makes sense to require a more definitive showing of per-
manent 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
6418 MAHARAJ v. GONZALES
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 reg-
ulation.
[7] 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 resettle-
ment, 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 sanc-
tions 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 to show that the nature of his stay and ties was
too tenuous, or the conditions of his residence too restricted,
for him to be firmly resettled.
D
[8] Here, the IJ found both that Maharaj was never “actu-
ally granted refugee status, but it clearly was offered to him”
— 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 per-
manent resettlement” under Canadian law.
[9] 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
MAHARAJ v. GONZALES 6419
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 unilater-
ally 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 per-
manent refuge or just had the possibility of asylum:
[A] third country’s offer of permanent resettlement
may consist of providing a defined class of aliens a
process through which they are entitled to claim per-
manent refuge. If an alien who is entitled to perma-
nent 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, 378 F.3d at 1152. In other words, an alien may have
an “offer” if the alien is entitled to permanent resettlement
and all that remains in the process is for the alien to complete
some ministerial act. The firm resettlement bar may apply if,
instead of completing the process and accepting the offer of
permanent resettlement to which the alien is entitled, the alien
chooses to walk away. DHS bears the burden of adducing evi-
dence that indicates the significance Canada attaches to the
process in which Maharaj was engaged, and to the progress
of his application. See Abdille, 242 F.3d at 489-92. As there
6420 MAHARAJ v. GONZALES
is no evidence in this record to indicate that Maharaj was enti-
tled to permanent resettlement when he left Canada, there was
no basis upon which to find an offer of permanent resettle-
ment and so to shift the burden of rebuttal to Maharaj. We
must remand so that the record can be developed with respect
to whether Maharaj chose not to accept permanent refuge to
which he was entitled, or turned his back only on the mere
possibility of it.11
[10] Likewise, the IJ’s determination was not based on sub-
stantial evidence to the extent that he found firm resettlement
and shifted the burden to Maharaj on account of four years’
residence, work, and benefits. DHS made no showing that
offer-based evidence was unobtainable. Therefore, it had to
adduce direct evidence of an offer of some type of permanent
resettlement. A four-year residence alone is not sufficient, see
Diallo, 381 F.3d at 696-97, and we cannot tell what made
Maharaj eligible for the benefits he received, or what his work
permit allowed, and whether eligibility for either means that
Canadian authorities thereby recognized a right to stay indefi-
nitely in that country. One can be allowed to work, or receive
benefits, without being offered permanent resident status or
some other type of permanent resettlement in this country,
and we suppose also in Canada. But the record is undeveloped
on this point as well.
11
Although not applicable to Maharaj, we note that The Agreement
Between the Government of the United States of America and the Govern-
ment of Canada for Cooperation in the Examination of Refugee Status
Claims from Nationals of Third Countries, U.S.-Can., Dec. 5, 2002, avail-
able at http://canada.usembassy.gov/content/can_usa/Safe3rd_finaltext12-
5-021.pdf, which became effective December 29, 2004, recognizes that
both countries “offer generous systems of refugee protection” and pro-
vides, subject 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
protection under Canadian immigration law. The Agreement indicates that
an alien may apply for asylum, withholding of removal or protection under
the Convention Against Torture in one or the other, but not both, coun-
tries. Id.; see also 8 U.S.C. § 1158(a)(2)(A); 8 C.F.R. § 208.30(e)(6).
MAHARAJ v. GONZALES 6421
[11] The IJ’s determination accordingly lacks support, and
we remand for further proceedings consistent with this opin-
ion.
IV
[12] 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 particu-
larly high level of violence, including looting, arson, and
physical intimidation directed against Indo-Fijians.” How-
ever, we cannot make a determination on changed country
conditions in the first instance. INS v. Ventura, 537 U.S. 12,
16-17 (2002) (per curiam) (requiring remand where the BIA
had not decided the “changed circumstances” question). In its
October 8, 2003 denial of Maharaj’s motion to reopen, the
Board stated that information about the 2000 coup was before
it when it issued its prior decision. Yet, the BIA’s February
27, 2003 decision affirming the IJ’s denial of asylum and
withholding of removal states only “that the record rebuts the
assumption of future harm,” and it gives no indication that the
BIA considered evidence of changed conditions following the
May 2000 coup. In any event, the BIA did not “make an indi-
vidualized determination as to the effect of country condi-
tions,” Lopez v. Ashcroft, 366 F.3d 799, 806 (9th Cir. 2004),
and remand is appropriate to allow the BIA to consider the
issue in a way that allows for principled appellate review of
its decision. In addition, we note that “remand could lead to
the presentation of further evidence of current circumstances
in [Fiji].” Ventura, 537 U.S. at 18.
V
We conclude that the IJ’s determination that Maharaj was
firmly resettled lacks support. We grant the petition, and
6422 MAHARAJ v. GONZALES
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 risk to Maharaj
of being returned to Fiji in light of changed country condi-
tions.
PETITION GRANTED.
O’SCANNLAIN, Circuit Judge, with whom KLEINFELD,
RAWLINSON, and CALLAHAN, Circuit Judges, join, con-
curring in part and dissenting in part:
While I agree that a remand to consider changed circum-
stances in Fiji is warranted with respect to the Maharajs’
request for withholding of removal, I must respectfully dis-
sent 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 mis-
construes 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 sub-
stantial persecution, see Maj. Op. at 6395-97, 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 full-
time janitor and bakery deliveryman, while Mrs. Maharaj
MAHARAJ v. GONZALES 6423
received training to become a nurse’s assistant and worked
full-time caring for the elderly. The Maharajs rented an apart-
ment, 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 autho-
rization. Though the Maharajs disliked working menial jobs
and felt that there was stigma attached to their status as refu-
gees, 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 deportability, 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
6424 MAHARAJ v. GONZALES
Canada and not even know it,” Mr. Maharaj answered,
“Could be.”1
The IJ concluded that the Maharajs “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 prob-
lem.” Because the IJ concluded that the Maharajs had been
firmly resettled in Canada, the IJ, in my view quite properly,
denied asylum because of statutory ineligibility. See 8 C.F.R.
§§ 208.13(c)(2)(i)(B), 208.15. The IJ also denied the
Maharajs’ request for withholding of removal on the grounds
of changed circumstances in Fiji, which we are, quite prop-
erly, remanding to the IJ.
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 revers-
ing the IJ’s legal conclusion, the majority misreads the firm
resettlement regulation in two respects. First, it too narrowly
construes the catch-all provision. Second, it ignores the his-
1
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.
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 Can-
ada and not even know it?
A. Could be.
MAHARAJ v. GONZALES 6425
tory 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 signifi-
cant latitude for finding that an alien “has been firmly reset-
tled” 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 per-
manent resettlement” must be read in the context of the pre-
ceding examples. See, e.g., Circuit City Stores v. Adams, 532
U.S. 105, 114-115 (2001) (“ ‘[W]here general words follow
specific words in a statutory enumeration, the general words
are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.’ ”
(quoting 2A N. Singer, Sutherland on Statutes and Statutory
Construction § 47.17 (1991))). Here the preceding objects—
“permanent resident status” and “citizenship”—are non-
temporary classifications which, if granted by a third country,
relieve the fear of persecution in the native country. Similarly,
“some other type of permanent resettlement” can include
informal understandings, as might be seen in less developed
immigration systems, as the majority concedes, but need not
necessarily be so limited. Rather, the phrase could also
encompass others types of “permanent resettlement” short of
full citizenship, so long as circumstances of the arrangement
are such that the alien is not at risk of being deported back to
his native country.
Moreover, the regulation by its plain text does not require
that the alien actually receive permanent resident status, citi-
zenship, 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
6426 MAHARAJ v. GONZALES
“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.
The text of the regulation clearly empowers the IJ to make
just such an inquiry.
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 pro-
tection may at some point culminate in a formal “offer” of cit-
izenship 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 rea-
sonably 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 end-
ing point—and therefore necessarily means that the immi-
grant 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. Sim-
ply, the lack of a formal “offer” is not dispositive where the
conditions of the aliens’ stay are such that there was no risk
of deportation when they chose to leave.2
2
In any event, there is a certain irony to the majority’s holding, under
these circumstances, that the Maharajs never received an “offer” of perma-
nent resettlement. It was, after all, the Maharajs’ voluntary choice to aban-
don prematurely their asylum application in Canada.
MAHARAJ v. GONZALES 6427
B
1
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, citizen-
ship, 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.3
These factors, however, are discretionary and do not necessar-
ily disqualify the asylum applicant.4
3
The majority suggests that we misread “offer of” for “offer or.” Maj.
Op. at 6415. While we agree, of course, with the majority that the manda-
tory bar applies if the alien receives “an offer of permanent resident status,
citizenship, or some other type of permanent resettlement,” § 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.
4
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 6412 (quoting Abdille v. Ashcroft, 242 F.3d 477, 485 (3d Cir.
2001)) (emphasis added), such conclusion is insufficient to construe the
regulation definitively. Rather, we must still consider whether, as the
majority concludes, the existence vel non of an “offer” should be the
exclusive element in the firm resettlement inquiry. Though the existence
of an “offer” is the proper starting place when considering firm resettle-
ment, according to the regulations, the existence of an “offer” is merely
one (of many) methods of determining whether an immigrant has been
firmly resettled. By reading the existence of an “offer” for permanent
resettlement as precisely coextensive with “firm resettlement,” the major-
ity dramatically, unnecessarily, and wrongly decreases the universe of fac-
tors that can contribute to a finding of firm resettlement.
Indeed, by reading the “firm resettlement” as coextensive with receipt
of an “offer” of permanent resettlement, the majority renders the phrase
6428 MAHARAJ v. GONZALES
This interpretation fits with the purpose of the Refugee Act:
to help those fleeing persecution. As the facts of this case
show, it is not only those who have been offered permanent
resettlement that are no longer fleeing persecution. The
Maharajs did not receive a formal “offer” of permanent reset-
tlement; yet, considering the circumstances of their stay, it is
clear that they were not fleeing persecution. Over the course
of four years, Mr. and Mrs. Maharaj were employed and
received social services in the form of health care and educa-
tion. On the basis of these factors, the IJ rightly determined
that the Maharajs had firmly resettled in Canada.
2
The focus of the firm resettlement analysis has always been
—and remains—whether the refugee remains in flight. Thus,
“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 interpreta-
tion. In my view, the text and structure of the regulations treat “firm reset-
tlement” 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 6415-16. The majority is mistaken. The regu-
lation 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 perma-
nent 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 lan-
guage.
MAHARAJ v. GONZALES 6429
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, 402 U.S. 49, 50
(1971). Considering the 1957 extension of the Refugee Relief
Act, which omitted reference to “firm resettlement,” the Court
held that the firm resettlement doctrine still persisted in the
new definition of “refugee” 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. at 55. The Court 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
6430 MAHARAJ v. GONZALES
search of refuge.” Id. at 56-57 (internal quotation marks omit-
ted and emphasis added).
In adopting the 1990 amendments, the INS intended to rec-
ognize the importance of the existence of an “offer” to analyz-
ing firm resettlement.5 I would not, however, take an
unwarranted additional step and conclude that the INS
intended to make the existence vel non of an “offer” for per-
manent resettlement the exclusive sine qua non of the refugee
analysis. The Supreme Court’s guidance in Woo should not be
ignored; “firm resettlement” must still be understood with an
eye towards overall refugee policy, whose “central theme” is
related to the concepts “firmly resettled” and “fled.” Id. at 55.
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 origi-
nal congressional declaration of policies and objectives for the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codi-
fied as amended in scattered sections of 8 U.S.C.), recognized
that
5
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 evaluat-
ing an asylum claim as a matter of discretion.” Maj. Op. at 6403. After
1990, however, “the INS amended its regulations concerning firm resettle-
ment, providing for a mandatory denial of asylum upon a finding of firm
resettlement.” Abdille v. Ashcroft, 242 F.3d 477, 483 n.4 (3d Cir. 2001).
However, even assuming, as the majority argues, that the amendments
“ ‘deemphasiz[ed] the previously paramount question whether the refugee
remains in flight,’ ” and instead focused on “ ‘the actual existence vel non
of an offer of permanent resettlement,’ ” Maj. Op. at 6404 (quoting Robert
D. Sloane, An Offer of Firm Resettlement, 36 GEO. WASH. INT’L L. REV.
47, 57 (2004)), that does not preclude the reality that the firm resettlement
question—and the existence of an “offer”—is intertwined with the ques-
tion of whether the refugee remains in flight.
MAHARAJ v. GONZALES 6431
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.
Of course, a consequence of the international and co-
operative 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 applica-
tion 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 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. Further, these limitations
underscore the importance of our task: Our refugee system is
intended for those in flight, and in need of a safe harbor; in
contrast, immigrants who voluntarily choose to abandon a
perfectly safe haven may be abusing the generosity of the
Refugee Act.6
6
Not surprisingly, we have imported this policy objective into our case
law. Most pertinently, in Yang v. INS, 79 F.3d 932 (9th Cir. 1996), the
applicants sought asylum from Laos, having spent fourteen unmolested
years in France subsequent to fleeing Laos. Yang noted that the statute is
aimed at “the urgent needs of persons subject to persecution in their home-
lands,” id. at 939, citing Refugee Act of 1980, § 101, and noted that per-
sons firmly resettled elsewhere “are by definition no longer subject to
persecution.” Id.
6432 MAHARAJ v. GONZALES
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, 162 F.3d 1227 (9th Cir. 1998), Meng Ly Cheo
and Meng Heng Cheo, Cambodian nationals, fled to Vietnam
and thence to Thailand, where they stayed for three years
before entering the United States through Mexico. Id. at 1228.
We concluded, however, that:
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, 43 F.3d
1397, 1399 (10th Cir. 1994), and Chinese Am. Civic Council
v. Attorney General, 185 U.S. App. D.C. 1, 566 F.2d 321, 328
n. 18 (D.C. Cir. 1977)). We did not state that the Cheo pre-
sumption requires an immigrant prove that he or she has “not
received an offer,” but rightly required the immigrant prove
that he or she is “not firmly resettled.” Critically, therefore,
MAHARAJ v. GONZALES 6433
Cheo concluded that other facts besides the existence of an
“offer” can show firm resettlement.7
Our later case law applying Cheo is consistent with a
broader reading of the regulation. In Andriasian v. INS, 180
F.3d 1033 (9th Cir. 1999), the petitioner fled Azerbaijan with
his family, escaping to Armenia. Id. at 1036. The family
moved between Russia, Armenia, and the Ukraine, nine times
over the next forty-four months, though the petitioner testified
that the family did not report any substantial problems living
in Armenia. Id. at 1039. On this basis, the IJ concluded that
the petitioner firmly resettled in Armenia. We reversed, con-
cluding that firm 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 in no way precludes the consideration of
additional factors to determine whether the petitioner has
firmly resettled. Indeed, Andriasian is consistent with Woo’s
explanation that:
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 inter-
vening residence in a third country.”
7
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 reset-
tlement is whether or not the stopover country has made some type of
“offer” of permanent resettlement.” Diallo v. Ashcroft, 381 F.3d 687, 693-
94 (7th Cir. 2004) (explicitly rejecting Cheo); Firmansjah, 424 F.3d at 602
(same).
6434 MAHARAJ v. GONZALES
402 U.S. at 57 n.6. Unlike the Supreme Court’s warning in
Woo, or the meanderings in Andriasian itself, the Maharajs
stayed in Canada—and Canada alone—for four years. It is
clear from these facts that Canada was not a mere stopover;
it was the destination in which they first intended to resettle
and did so.8
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 one 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.
8
Ali v. Ashcroft, 394 F.3d 780 (9th Cir. 2005), to which the majority
repeatedly cites, simply does not apply to the facts of this case. In Ali, the
petitioner, a Somali refugee, spent five years in Ethiopia as an undocu-
mented alien attempting to arrange travel to a safe third country that would
offer her permanent resettlement. Ali, 394 F.3d at 783-84. Ali properly
concluded that “the fact that Ali fortuitously evaded detection by the gov-
ernment while living illegally in Ethiopia does not allow for a finding that
Ali was firmly resettled.” Id. at 790. In contrast, the Maharajs lived openly
and freely in Canadian society. Ali, as an illegal, undocumented worker
in an inhospitable environment was not similarly situated to the Maharajs.
For similar reasons, Camposeco-Montejo v. Ashcroft, 384 F.3d 814 (9th
Cir 2004), is inapplicable. As we noted in that case, the petitioner “cer-
tainly did not experience in [the third country] the freedom and complete
lack of ‘molestation or persecution’ that seemed to characterize the appli-
cants’ stays in Cheo and Vang.” Id. at 820 (citing Cheo, 162 F.3d at 1228).
Because of the various restrictions and difficulties suffered by that peti-
tioner, his application would not be barred under § 208.15(b) regardless.
MAHARAJ v. GONZALES 6435
C
Under a proper reading of the regulations, a variety of fac-
tors may be considered as part of the analysis of firm resettle-
ment. 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. How-
ever, if no “offer” of permanent resident status, citizenship, or
other type of permanent resettlement is made, the IJ may still
consider the facts of the case to determine whether the totality
of the circumstances indicate that the petitioner had firmly
resettled in the third country. This interpretation fits with the
broader asylum policy, and the concept that asylum is for
those in need. See Sall v. Gonzales, 437 F.3d 229, 233 (2d
Cir. 2006) (per curiam) (noting that “the underlying purpose
of asylum regulations—to provide refuge to desperate refu-
gees who reach our shores with nowhere else to turn—
accords with reserving the grant of asylum for those appli-
cants without alternative places of refuge abroad”); see also
id. (noting that while aliens physically present in the United
States are generally allowed to apply for asylum, 8 U.S.C.
§ 1158(a)(2)(A) exempts any alien who could be removed to
a “[s]afe third country”).
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 discrim-
ination, and appeared to enjoy a relatively peaceful existence.
Thus, the IJ had the authority to conclude 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
6436 MAHARAJ v. GONZALES
with a broader choice of safe homelands, but rather, to protect
those arrivals with nowhere else to turn.” Id. I would, there-
fore, deny the petition for review.
III
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. 437 F.3d at 231. Sall stayed in a Red Cross camp for
four-and-one-half years, then moved to the capital of Senegal,
Dakar, where he stayed for another nine months before paying
for transportation to the United States. Id. The IJ concluded
that Sall was ineligible for asylum because he had firmly
resettled in Senegal, having lived there for approximately five
years with no impediments to work or travel. Id. at 232. On
review, the Second Circuit reviewed the IJ’s conclusion with
an eye toward the purpose of the asylum regulations: “to pro-
vide refuge to desperate refugees who reach our shores with
nowhere else to turn.” Id. at 233. Thus, it was proper to “re-
serv[e] the grant of asylum for those applicants without alter-
native places of refuge abroad, regardless of whether a formal
‘offer’ of permanent settlement has been received.” Id.
(emphasis added).
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, Sall instructed the IJ to
consider the totality of the circumstances, including
whether Sall intended to settle in Senegal when he
MAHARAJ v. GONZALES 6437
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 set-
tled persons can expect to have. Of particular impor-
tance 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 Sall’s statement that an “offer” of permanent resi-
dent 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, 20
F.3d 877 (8th Cir. 1994). Shortly after arriving in Spain, the
petitioner “filed an application for refugee status in Spain.”
Id. at 880. Farbakhsh stayed in Spain for almost four years,
though he “did not have official permission to work or study
in Spain.” Id. When the petitioner left, his application for ref-
ugee status was still pending. Id. Nevertheless, the IJ con-
cluded, and the BIA agreed, that the petitioner “had ‘firmly
resettled’ in Spain and was no longer fleeing persecution
when he entered the United States.” Id.
On review, the Eighth Circuit concluded:
We hold the record supports the Board’s finding that
petitioner had firmly resettled in Spain. Petitioner
6438 MAHARAJ v. GONZALES
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 sta-
tus 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.
20 F.3d at 882.
In short, the “firm resettlement” bar prohibited consider-
ation 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 applica-
tion, coupled with an undisturbed and lengthy stay in the third
country, was sufficient to bar the application at the IJ’s discre-
tion (as opposed to a finding of firm resettlement, which man-
dates denial of the application). See also Chinese American
Civic Council v. Attorney General, 566 F.2d 321 (D.C. Cir.
1977) (noting that “[a]ppellants did not present any facts to
rebut the normal conclusion from such extended residence
that appellants were firmly resettled and no longer in flight”
and citing Woo, 402 U.S. at 49, for support).
The Eighth Circuit recently reiterated this view in Rife v.
Ashcroft, 374 F.3d 606 (8th Cir. 2004):
We agree with the Third Circuit in Abdille that the
text of 8 C.F.R. § 208.15 makes [an offer of perma-
nent resettlement] an important factor and, indeed,
the proper place to begin the firm resettlement analy-
sis. But in some cases it will not be dispositive. For
example, in our only decision resolving a firm reset-
tlement issue, we affirmed the BIA’s determination
that the alien’s four-year stay in Spain constituted
firm resettlement even though his application for ref-
MAHARAJ v. GONZALES 6439
ugee 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 place to end the firm resettlement analysis.
The Fourth Circuit adopted a similar approach. In Mussie
v. INS, 172 F.3d 329 (4th Cir. 1999), the petitioner was a
native and citizen of Ethiopia who fled to Germany. Id. at
330. Mussie applied for, and was granted, asylum in Ger-
many, though the record did not disclose whether she received
permanent resident status. Id. Mussie received government-
paid language schooling, and monetary assistance for trans-
portation, rent, and food. Id. at 330-31. With some relatively
minor exceptions, Mussie lived peacefully in Germany for
approximately six years. Id. at 331.
On review, the Fourth Circuit noted that although “the
record is silent as to whether Mussie actually received a for-
mal “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 con-
clusion, Mussie noted that the petitioner “received govern-
ment assistance for language schooling, transportation, rent,
and food; held a job; paid taxes; and rented her own apart-
ment.” Id. at 332.
9
As noted by the majority, Farbakhsh relied on In re Soleimani, 20 I.
& N. Dec. 99, 104 (1989), which is arguably outdated. Yet, the Eighth
Circuit’s pronouncement in Rice clearly treats Farbakhsh as precedential
authority. Thus, despite the majority’s claims to the contrary, its analysis
conflicts with the Eighth Circuit’s.
6440 MAHARAJ v. GONZALES
Similarly here, the Maharajs received a variety of govern-
ment benefits, including free health care and schooling, held
jobs, and rented an apartment. Unlike Mussie, the Maharajs’
asylum petition was still pending when they chose to leave
Canada; yet, the evidence indicated that the Maharajs and the
Canadian government were in stasis, much like the relation-
ship 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 cir-
cumstances surrounding their lives in Canada and Germany,
respectively, indicate that an IJ could have reasonably con-
cluded 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 majority. More-
over, 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 immi-
gration laws have long sought to avoid. See, e.g., Kalubi v.
Ashcroft, 364 F.3d 1134, 1140 (9th Cir. 2004) (noting that
“[i]n an appropriate case, ‘forum shopping’ might conceiv-
ably be part of the totality of circumstances that sheds light
on a request for asylum in this country”); Susan F. Martin and
Andrew I. Schoenholtz, Asylum in Practice: Successes, Fail-
ures, and the Challenges Ahead, 14 GEO. IMMIGR. L.J. 589,
606 (noting that “[m]ost advanced Western nations have
adopted the principle in their asylum laws that the first safe
haven country to which a refugee flees should be the one in
which he or she seeks asylum” in order to reduce “asylum-
shopping”). Indeed, the facts of this case demonstrate the
likely effect of the majority’s narrow reading of § 208.15. The
MAHARAJ v. GONZALES 6441
Maharajs lived peacefully in Canada for four years, enjoying
that country’s social and economic benefits. Dissatisfied with
life in Canada—rather than with life in Fiji—the Maharajs
decided to move to the United States. What a blatant abuse of
the refugee and asylum system! It is undisputed that the
Maharajs were no longer fleeing from persecution when they
came to the United States. By their own admission, they were
merely dissatisfied with their job prospects in Canada. While
the desire to enjoy improved economic circumstances may
motivate many immigrants, it is emphatically not a reasonable
or a proper basis for granting an asylum petition.
Indeed, the Maharajs—who apparently immigrated for eco-
nomic 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 reset-
tlement), 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 immi-
grant 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. Consider-
ing 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 peti-
tion 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 peti-
tioners 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
6442 MAHARAJ v. GONZALES
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 case is a
perfect example of the difficulty DHS will face in future asy-
lum proceedings: During their hearing, the Maharajs admitted
to living a perfectly happy life in Canada; yet the circum-
stances 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 majori-
ty’s construct will hamstring DHS to an intolerable and unrea-
sonable degree in future asylum proceedings.
V
The Maharajs emigrated from Canada, where they had
lived peacefully for four years, not from Fiji, where they were
persecuted. The majority’s unnecessarily narrow reading of
“firm resettlement”—focusing exclusively on an “offer”—
ignores the Supreme Court’s guidance on how to interpret our
asylum laws. As a result, the majority opinion puts us on the
wrong side of a circuit split and invites blatant country-
shopping. I respectfully dissent.