Maharaj v. Gonzales, 03-71066.

• Decision Date: 04 August 2005
• Docket Number: No. 03-71066.,No. 03-73995.,03-71066.,03-73995.
• Citation: 416 F.3d 1088
• Parties: Vinodh Parsad MAHARAJ; Sunita Devi Maharaj; Preetika Maharaj; Meenal Maharaj; Vineet Maharaj, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent. Vinodh Parsad Maharaj; Sunita Devi Maharaj; Preetika Maharaj; Meenal Maharaj; Vineet Maharaj, Petitioners, v. Alberto R. Gonzales, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1088

416 F.3d 1088

Vinodh Parsad MAHARAJ; Sunita Devi Maharaj; Preetika Maharaj; Meenal Maharaj; Vineet Maharaj, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

Vinodh Parsad Maharaj; Sunita Devi Maharaj; Preetika Maharaj; Meenal Maharaj; Vineet Maharaj, Petitioners, v. Alberto R. Gonzales, Attorney General, Respondent.

No. 03-71066.

No. 03-73995.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2005.

Filed August 4, 2005.

Ashwani K. Bhakhri, Law Offices of Ashwani K. Bhakhri, Burlingame, CA, argued the cause for the petitioner, and filed a brief.

James E. Grimes, Office of Immigration Litigation, United States Department of Justice, Washington, DC, argued the cause for the respondent. Peter D. Keisler, Assistant Attorney General, Richard E. Evans, Assistant Director, and Nancy E. Friedman, Office of Immigration Litigation, United States Department of Justice, Washington, DC, were on the briefs.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A71-788-923, A71-788-924, A72-402-323, A72-402-324, A72-402-325.

Before: GOODWIN, O'SCANNLAIN, and KLEINFELD, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a Fijian citizen's four-year residence in Canada, which ended when he entered the United States, constituted "firm resettlement" under federal immigration law, thus barring his claim for asylum here.

I

Vinodh Maharaj, his wife, and two of their three children are citizens of Fiji,¹ where they lived until November, 1987. In March, 1987, Maharaj, who worked as a bus driver, was instructed by his boss to help the Coalition Labor Party (CLP) mobilize voters for the upcoming national election. His election-related work involved transporting Indo-Fijian voters to and from the polls in a bus festooned with CLP placards, posters and flags. Although Mr. and Mrs. Maharaj were not affiliated with any political party, they believe that ideological support for the CLP party was imputed to them because of his busing of voters and her non-partisan work at a polling station located at the school where she worked as a secretary. This is quite likely given the close identification of race and politics in Fiji. In the 1987 election, native Fijians, who make up 51% of the population, voted overwhelmingly for native Fijian parties, and Indo-Fijians like the Maharajs, who make up 44% of the population, voted overwhelmingly for the CLP and other Indo-Fijian parties. After the election, which the CLP won, Mr. Maharaj received several threats from native Fijians, who blamed his busing for helping the CLP to gain power and threatened to kill him and his family and to burn down his house.

Two months later, the Fijian army, which is almost exclusively native Fijian, overthrew the newly elected CLP government. In the immediate wake of the coup, the Maharaj family's rented room was invaded by two soldiers, who stole various items, tied Maharaj up and forced his wife to conduct traffic in her underwear at gunpoint. Shortly after this incident, Mrs. Maharaj was assaulted by two soldiers on her way to work. They forced her into an empty house and raped her, breaking her right arm and burning her with cigarettes. When she went to the police and to the hospital, she was turned away and told that their services were only for native Fijians.

In June or July, Maharaj was attacked on his bus route by native Fijians. They demanded money from him and, when he refused, they broke two of his ribs, knocked him unconscious, and left him with a seriously bruised jaw and cuts on his face. Although he was able to receive medical attention in a hospital, when he went to the police they turned him away because he was Indo-Fijian.

The next month, in August, the family's rented room was burned down and Mrs. Maharaj was burned, though not seriously, in the fire. There were no witnesses, but Mr. Maharaj believes that the fire was set by native Fijians.

Although no further attacks occurred after August, Mr. Maharaj continued to receive general threats and harassment at work from native Fijians, and he was hindered in his practice of Hindu worship. In November, the family left Fiji for Canada and settled in Edmonton, where Mr. Maharaj has some distant family. In Canada, they applied for permanent residence as refugees.

Mr. Maharaj worked in Edmonton as a full-time janitor and also as a bakery deliveryman while his wife received training to become a nurse's assistant and worked full-time for a year caring for the elderly. Both Mr. and Mrs. Maharaj were given Social Insurance Numbers and work authorization, their third child was born in Edmonton, their children attended free public school and the family received free health care from the Canadian government. Although Mr. and Mrs. Maharaj complained about working menial jobs that they did not enjoy, and about stigma associated with being refugees, they were able to worship freely at a Hindu temple and had non-Indian and non-Fijian friends in Edmonton. The Immigration Judge (the "IJ") found that there is no question that they were free from persecution in Canada.

After four years in Canada, the Maharaj family entered the United States in March, 1991, at the border crossing between Vancouver, Canada, and Blaine, Washington, in a vehicle driven by a Canadian citizen. Both Mr. and Mrs. Maharaj later testified about their reasons for leaving Canada for the United States. Mr. Maharaj testified that he "wanted to move to United States because, uh, [he] wanted to see what United States looks like" and that the "main thing was job. We never had a good job." Mrs. Maharaj testified that "we were not 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."

After the family overstayed its permitted time in the United States,² Mr. and Mrs. Maharaj were served with Orders to Show Cause by the INS charging them and their children as deportable. At their hearing, the family conceded deportability but Maharaj requested asylum and withholding of removal. The IJ denied Maharaj's request because he and his family had been firmly resettled in Canada and he was, therefore, ineligible for asylum. The IJ also denied him withholding of removal because, although he had endured past persecution, the IJ held that, because circumstances in Fiji had changed since his departure in 1987, there is no clear probability that Maharaj's life or freedom would be in danger upon his return. The IJ designated Fiji as the country of removal for the family, with the exception of the youngest child, who is a Canadian citizen by birth, whose country of removal was designated as Canada.

Before his appeal had been heard by the Board of Immigration Appeals (the "BIA"), Maharaj filed a motion to reopen the case (not with the Immigration Court, but with the BIA) based on new evidence of conditions in Fiji and also submitted a one-page fax purporting to show that his Canadian asylum application had been denied. In due course, the BIA affirmed the IJ's decision in a written opinion. It agreed that Maharaj was ineligible for asylum because his family had been firmly resettled in Canada, and, in the alternative, it held that the presumption of a well-founded fear of persecution had been rebutted by evidence of changed circumstances in Fiji. It also affirmed the IJ's decision to deny withholding of removal. Maharaj's motion to reopen, together with the fax, was treated by the BIA as a motion to supplement the record and was denied.

Maharaj again petitioned the BIA to reopen his case, based on the coup that had occurred in Fiji in May, 2000, which had also been the basis for his first motion to reopen. The BIA issued a second opinion, which held that the evidence of changed conditions in Fiji had already been considered and rejected and did not warrant reopening the case.

Maharaj timely appeals the BIA decision affirming the IJ's original decisions to deny him asylum and withholding of removal. He has not challenged the BIA's denial of his motion to reopen and thus that claim has been waived. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996).

II

The plain language of the firm resettlement regulation³ requires that a petitioner be denied asylum if he has been "firmly resettled" in a third country prior to entering the United States. See 8 C.F.R. § 208.13(c)(2)(i)(B) (1999); see also Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir.1999). "Firmly resettled" means that, "prior to arriving in the United States, [the petitioner] entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." 8 C.F.R. § 208.15.⁴ Despite this language, this court has consistently held that, in the absence of evidence of such offer, a petitioner's extended, undisturbed residence in a third country creates a presumption of firm resettlement that will satisfy the definition. See Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir.1998); see also Andriasian, 180 F.3d at 1043.

This "Cheo" presumption is a useful complement to the plain language of the firm resettlement regulation. In this context, there is an incentive on the part of the petitioner to conceal evidence of an offer of permanent resettlement in a third country because producing it would defeat his claim. It is, therefore, reasonable and necessary to look to the length of the petitioner's stay in the third country and to the circumstances of his life there to decide whether or not the presumption of firm resettlement survives.

A

Although not dictated by the text of 8 C.F.R. § 208.15, the Cheo presumption is consistent with the Supreme Court's only exegesis of the firm resettlement doctrine. In 1971, the Court decided the...