Firmansjah v. Gonzales

• Decision Date: 16 September 2005
• Docket Number: No. 03-3111.,No. 03-3965.,03-3111.,03-3965.
• Citation: 424 F.3d 598
• Parties: Yulia FIRMANSJAH, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

424 F.3d 598

Yulia FIRMANSJAH, Petitioner, v. Alberto R. GONZALES,¹ Respondent.

No. 03-3111.

No. 03-3965.

United States Court of Appeals, Seventh Circuit.

Argued June 17, 2004.

Decided September 16, 2005.

Godfrey Y. Muwonge (argued), Milwaukee, WI, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Carol Federighi (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Yulia Firmansjah, a citizen of Indonesia, entered the United States as a student and overstayed her visa. She subsequently filed an application for asylum and withholding of removal. After a hearing, the immigration judge denied Firmansjah's asylum request on the ground that Firmansjah was firmly resettled in Singapore prior to her arrival in the United States. The immigration judge also denied her request for withholding of removal, reasoning that she had not shown a clear probability that she would be persecuted if removed to Indonesia. The Bureau of Immigration Affairs affirmed without discussion, and Firmansjah appeals. For the reasons that follow, we find that substantial evidence supports the immigration judge's determinations and deny the petitions for review.

I. BACKGROUND

Yulia Firmansjah was born in Indonesia and is an Indonesian citizen. She is ethnically Chinese. At her asylum hearing, she recounted that in 1986, when she was twelve years old, she and her family moved from their home in Jakarta, Indonesia to the western outskirts of Jakarta in an effort to avoid anti-Chinese violence in the city. In 1988, at the age of sixteen, she moved with her family to Singapore, where she attended high school for four years. She lived with her family in Singapore from 1988 to 1992 when, at the age of nineteen, she entered the United States on a student visa. She studied at the University of Dayton, where she received a bachelor's degree in environmental engineering technology and a master's degree in business administration.

Firmansjah testified that in approximately 1990, her father removed all his money from Singapore and reinvested it in business in Indonesia. In 1995 or 1996, after her siblings finished high school and she was already living in the United States, her parents moved back to Indonesia. In 1998, as a result of anti-Chinese violence in Indonesia, her parents twice left Indonesia and headed to Singapore. She testified that as of December 2000, her parents lived in Indonesia but retained their residency in Singapore.

Firmansjah's most recent visa expired on December 26, 1997, and she acknowledged that she stayed in the United States beyond her visa's expiration. She stated that at the time of her graduation from college, she had planned to return to Indonesia. However, after riots in Indonesia in May 1998 during which ethnic Chinese persons were harmed, her parents advised her not to do so. Instead, she completed an application for asylum. On her application for asylum dated September 16, 1998, she stated that she had a "Singapore residence permit" and was "entitled to return to Singapore for residence reasons." At her hearing, she testified that although her parents were still Singapore residents, she no longer had "residency" in Singapore because it had expired in March of 2000.

Firmansjah asserted that if returned to Indonesia, she feared persecution based on her ethnicity (Chinese), religion (Catholic), and status as a young westernized Chinese woman. She expressed fear that the government was unable to control violence towards Christians or Chinese in Indonesia. She also testified that she did not know anyone personally who had been the victim of anti-Chinese violence in Indonesia.

The immigration judge denied Firmansjah's request for asylum on the ground that she had firmly resettled in Singapore prior to entering the United States. The immigration judge also denied her request for withholding of removal, reasoning that she had not established a clear probability that she would face persecution if returned to Indonesia. Her request for voluntary departure was granted, with an alternative order of removal to Indonesia. Firmansjah appealed the immigration judge's decision to the Board of Immigration Appeals, which summarily affirmed the immigration judge's decision without opinion.

II. ANALYSIS

Firmansjah raises two issues in her petition for review. First, she contends that the immigration judge erred when he determined that she had firmly resettled in Singapore prior to her arrival in the United States. In addition, she maintains that the immigration judge's finding that she was not entitled to withholding of removal was not supported by substantial evidence. Where, as here, the Board of Immigration Appeals affirms the immigration judge's decision without opinion, we review the decision of the immigration judge as the "final agency determination." Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004).

A. Asylum

To be eligible for a discretionary grant of asylum, an applicant must establish that she is a "refugee" within the meaning of the Immigration and Nationality Act. 8 U.S.C. § 1158(b)(1); Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005). The Act defines a "refugee" as one who is unable or unwilling to return to her native country "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). The petitioner carries the burden of establishing eligibility for asylum. Jamal-Daoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a).

Although it has not always been the case, under the current statute, an alien is not eligible for asylum if she was "firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b)(2)(A)(vi);² see Abdille v. Ashcroft, 242 F.3d 477, 483 n. 4 (3d Cir.2001) (discussing history of firm resettlement and noting that prior to 1990, firm resettlement was only one factor for immigration judge to consider in deciding whether to grant asylum); see also Diallo v. Ashcroft, 381 F.3d 687, 692 n. 4, 693 (7th Cir. 2004). Here, the immigration judge found that Firmansjah had firmly resettled in Singapore prior to entering the United States and denied her asylum request on that basis. Firmansjah maintains that this finding was erroneous.

"A finding of firm resettlement is a factual determination." Diallo, 381 F.3d at 695. Therefore, we will review the immigration judge's decision only to determine whether substantial evidence supports it. Id. The finding that Firmansjah was firmly resettled "must be upheld if it is 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 be compelled to reach a different conclusion. Id. (citations omitted).

We considered the firm resettlement provision in the current statute for the first time in Diallo v. Ashcroft, 381 F.3d 687 (7th Cir.2004). There, we observed that the statute does not define the term "firm resettlement" or provide guidance for how to determine whether a refugee was firmly resettled. 381 F.3d at 692. The regulations, however, provide that:

[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement....

8 C.F.R. § 208.15.³

We decided in Diallo, after examining the text of the statute, that "the primary and most important inquiry in any analysis of firm resettlement is whether or not the stopover country has made some type of offer of permanent resettlement." Id. at 693-94. Not all circuits take this approach, as some employ a "totality of the circumstances" test that also examines non-offer based elements such as an applicant's length of stay and social and economic ties in the third country. See, e.g., Mussie v. U.S. I.N.S., 172 F.3d 329, 332 (4th Cir.1999); Cheo v. I.N.S., 162 F.3d 1227, 1229 (9th Cir.1998). Although we recognized in Diallo 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,'" we made clear that our initial inquiry asks whether the third country extended an offer of permanent resettlement. 381 F.3d at 694 (citing Abdille, 242 F.3d at 486-87).

The government has the initial burden of demonstrating that an applicant was firmly resettled in a third country prior to entering the United States. Diallo, 381 F.3d at 693. If the government satisfies its burden, the applicant may rebut the presumption by presenting evidence to the contrary. Id.

Firmansjah argues that the only evidence the government produced in its attempt to demonstrate her permanent residence in Singapore was a stamp on her Indonesian passport. The stamp, dated March 14, 1995, states it is a "multiple-journey visa for Singapore" valid until March 14, 2000. Firmansjah contends that there is no evidence that this time-limited stamp granted her "permanent" residency in Singapore.

Firmansjah's focus on the five-year nature of her visa stamp ignores significant other evidence in the record. In support of its position that it met its initial burden of demonstrating that Firmansjah was firmly resettled prior to entering the United States, the government points to Firmansjah's statements on her asylum application and her testimony at the hearing. First, in answer to a question on the asylum application that asked, "Do you ... now hold, or have you ever held, permanent residence, other permanent status, or citizenship, in any country other than the one from which you are now claiming asylum?",...