Maharaj v. Gonzales, 03-71066.

• Decision Date: 09 June 2006
• Docket Number: No. 03-71066.,No. 03-73995.,03-71066.,03-73995.
• Citation: 450 F.3d 961
• 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

450 F.3d 961

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 En Banc March 23, 2006.

Filed June 9, 2006.

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Robert B. Jobe (argued), San Francisco, CA, and Ashwani K. Bhakhri (signed the briefs), Burlingame, CA, for the petitioners.

Alison Marie Igoe (argued), and Nancy E. Friedman (signed the briefs), United States Department of Justice, Washington, D.C., for the respondent.

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

Before MARY M. SCHROEDER, Chief Judge, HARRY PREGERSON, DIARMUID F. O'SCANNLAIN, PAMELA ANN RYMER, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, SUSAN P. GRABER, W. 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.

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 regulations applicable to Maharaj's application, the Attorney General 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 residence in Canada, where they were able to work and receive benefits, and their pending application for refugee status, the 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 resettlement, and it plainly requires DHS to make a threshold showing 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 government 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 evidence 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 applicant was treated by comparison. 8 C.F.R. § 208.15(b). So holding, we align ourselves with Judge Becker's leading opinion for the Court of Appeals for the Third Circuit in Abdille v. Ashcroft, 242 F.3d 477 (3d Cir.2001), and with the substantially similar approach embraced by the First, Seventh, Eighth and Tenth Circuits.

In this case, the IJ lacked sufficient evidence that the mandatory 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 application for refugee status, or the benefits he received, manifested 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 persecution if returned. Because the BIA did not make an individualized 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, displaying 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 burn down their residence. Maharaj believes that the native Fijians blamed the CLP victory in part on his busing supporters to the polls.

Two months later, the Fijian army, which is composed almost exclusively of native Fijians, overthrew the CLP government. 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 soldiers 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 Edmonton 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 Canadian government never asked him to leave and that he was 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 testified 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...