Su Hwa She v. Holder

Decision Date14 December 2010
Docket NumberNo. 06-71794,06-71794
Citation629 F.3d 958
PartiesSU HWA SHE, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Joren Lyons, Asian Law Caucus, San Francisco, CA, for the petitioner.

James A. Hunolt and Jessica E. Sherman, Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A71 582 092.

Before: PROCTER HUG, JR. and MILAN D. SMITH, JR., Circuit Judges, and THOMAS F. HOGAN, District Judge.*

OPINION

HOGAN, District Judge:

Petitioner Su Hwa She ("Petitioner" or "She") seeks review of an order of the Board of Immigration Appeals ("BIA") dismissing her appeal from an Immigration Judge's ("IJ's") denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Upon due consideration, we grant the petition for review in part, deny it in part, and remand for further proceedings consistent with this opinion.

I

Su Hwa She was born in Burma,1 where she and other members of her family were allegedly persecuted by ethnic Burmese officials from the mid-1960s until 1981, when she traveled to Hong Kong. She entered Taiwan shortly thereafter, at the age of thirty-seven. She stayed with a family friend there and her name was put on a household register that was used tohelp her obtain a Taiwanese passport. (Br. at 6.) She remained in Taiwan for some eighteen months, ultimately gaining recognition as a citizen of the Republic of China (i.e., Taiwan). On May 28, 1983, She entered the United States on a visitor's visa with a 1985 expiration date. A.R. 78. She overstayed her visa and, several years after entering the United States, filed an asylum petition in Los Angeles. She also applied for withholding of removal to Burma and relief under CAT.2Id. Her asylum petition was referred to the Immigration Court in 2003 after an asylum officer opined that She's treatment in Burma did not amount to persecution and that she had firmly resettled in a third country before entering the United States. The record indicates that She repeatedly renewed her Taiwanese passport for over twenty years, but remained in the United States since her entry, never returning to Taiwan or Burma.

The Immigration Court designated Burma, Taiwan, and the People's Republic of China for purposes of removal. A.R. 58. The IJ thereafter heard argument along with She's testimony, including testimony about her time in Taiwan. The IJ's decision notes that

[in Taiwan] she lived with family friends or people who put her on their family list. And by being placed on their family list, or what is commonly known as the household registration, she was able to get a passport. The respondent testified that she was not related to the people who befriended her by blood or in any manner. But it seems to reason if the respondent would pretend to be a member of that family it's quite likely she might embellish other facts as well.

(A.R.51-52.) Nonetheless, the IJ continued: "The Court in this case makes no comment on her credibility as yet. But suffice it to say that the respondent's claim of asylum as to Burma is moot and she can return to Taiwan as she was a citizen of Taiwan." (A.R.52.) The IJ therefore pretermitted her applications, noting that "[She] has a country to which she can return, and ... all that is necessary is that [DHS] establish that there is a country that she could reside [in]." ( Id.) Notwithstanding the fact that the IJ's decision does not mention the term "firm resettlement," the BIA affirmed the Immigration Court's decision without argument, stating: "We agree with the Immigration Judge that the respondent is ineligible for asylum because she was firmly resettled in Taiwan prior to entering the United States.... If Taiwan refuses to provide valid travel documents allowing [She] to return there, she may seek reopening to assert claims as against return to Burma." (A.R.2-3.)

II

"Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA." Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). "We review questions of law, and the application of legal principles to facts, de novo." Hoque v. Ashcroft, 367 F.3d 1190, 1195 (9th Cir.2004); Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003) (noting that due process claims are reviewed de novo); Mengstu v. Holder, 560 F.3d 1055, 1058 (9th Cir.2009). Factual findings, including a determination of firm resettlement, are reviewed for substantial evidence, and are overturned only where "any reasonable adjudicator would be compelled to conclude to the contrary." Farah, 348 F.3d at 1156; 8 U.S.C. § 1252(b)(4)(B) (defining the substantial evidence standard); cf. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)(holding that an asylum eligibility determination "must be upheld if 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' ") (quoting 8 U.S.C. § 1105a(a)(4) (1992)). But we lack jurisdiction to review an IJ's resolution of certain disputed facts. See 8 U.S.C. § 1158(a)(3); see also Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007) (per curiam) (finding jurisdiction only over questions of law or mixed questions of fact and law insofar as determinations within the scope of 8 U.S.C. § 1158(a)(2) are concerned).

III

Asylum may not be granted to an alien who the Attorney General determines to have "firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b)(2)(A)(vi) (2010); 8 C.F.R. § 208.13(c)(2)(i)(B) (2010). An alien is considered to be firmly resettled if, prior to arriving in the United States, she "entered 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 (2010). The definition of firm resettlement does not encompass an alien who can demonstrate that "his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country." Id. at § 208.15(a). So far as we are aware, based on the parties' briefs, Department of Homeland Security ("DHS") regulations do not define "significant ties" or otherwise elaborate on the interpretation of this exception. "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." Maharaj, 450 F.3d 961, 976 (9th Cir.2006); see also Ali v. Ashcroft, 394 F.3d 780, 789-90 (9th Cir.2005). If the government establishes firm resettlement, the burden shifts to the alien to show, by a preponderance of the evidence, "that the nature of his stay and ties was too tenuous ... for [her] to be firmly resettled." Maharaj, 450 F.3d at 969, 976-77; Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir.1998) ("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."); see also 8 C.F.R. § 208.13(c)(2)(ii) (2000); Mussie v. INS, 172 F.3d 329 (4th Cir.1999). Firm resettlement does not preclude eligibility for withholding of removal. Siong v. INS, 376 F.3d 1030, 1040-41 (9th Cir.2004).

A

She first argues that the BIA and IJ improperly concluded that she had firmly resettled in Taiwan because she fraudulently obtained her Taiwanese passport and household registration. She points to Ali for the proposition that a person unlawfully in a third country cannot be found to be firmly resettled there. 394 F.3d at 789. But She miscasts Ali, wherein the petitioner testified that "she never received an offer of permanent residence." Id. at 790. In Ali, a panel of this Court explained that "the fact that [Petitioner] Ali fortuitously evaded detection by the government while living illegally in Ethiopia does not allow for a finding that Ali was firmly resettled in Ethiopia.... Absent some government dispensation, an immigrant who surreptitiously enters a nation without its authorization cannot obtain official resident status...." Id. at 790 (emphasis added) (citation and internal quotation marks omitted). Here, there has been some government dispensation:She's recognition as a national of Taiwan. She's argument that her status in Taiwan should be disregarded because it was fraudulently obtained is hence unfounded. She also argues that the BIA erred on the Taiwan resettlement question by ignoring her testimony before the Immigration Court, although that testimony must be accepted as true. More specifically, Petitioner argues that she satisfied the burden of establishing that she falls under an exception to firm resettlement definition. In support of this argument, Petitioner cites her testimony that (1) her entry into Taiwan was a necessary consequence of her flight from persecution, (2) she remained there only long enough to obtain a passport and arrange onward travel, and (3) she did not establish significant ties in Taiwan.

For its part, the government emphasizes that She remained in Taiwan longer than the one year necessary to obtain a passport and arrange onward travel, pointing out that by staying an additional six months, she was able to obtain status as a Taiwanese national. Duration of residence is undoubtedly an important consideration in the firm resettlement analysis, Cheo, 162 F.3d at 1229-30, but it must be weighed against Petitioner's testimony that she remained just long enough to arrange travel to the United States. Absent from the record is any discussion of how She...

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