Sall v. Gonzales

• Citation: 437 F.3d 229
• Decision Date: 03 February 2006
• Docket Number: Docket No. 03-4840.
• Parties: Amadou SALL, Petitioner, v. Alberto GONZALES, Attorney General of the United States,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 229

437 F.3d 229

Amadou SALL, Petitioner, v. Alberto GONZALES, Attorney General of the United States,^* Respondent.

Docket No. 03-4840.

United States Court of Appeals, Second Circuit.

Argued: January 30, 2006.

Decided: February 3, 2006.

Ronald S. Salomon, New York, NY, for Petitioner.

Damian W. Wilmot, Assistant United States Attorney (Michael J. Sullivan, United States Attorney for the District of Massachusetts, on the brief), United States Attorney's Office for the District of Massachusetts, Boston, MA, for Respondent.

Before: WINTER, CABRANES, and B.D. PARKER, Circuit Judges.

PER CURIAM.

We consider here the proper standards for reviewing a finding by an immigration judge ("IJ") that an asylum applicant has "firmly resettled" in a third country before applying for asylum in the United States. See 8 C.F.R. § 208.15 (defining aliens who have "firmly resettled"); 8 U.S.C. § 1158(b)(2)(A)(vi) (barring such aliens from receiving asylum).

Petitioner Amadou Sall, who claims to be a native and citizen of Mauritania, petitions for review of an April 8, 2003 order of the Board of Immigration Appeals ("BIA") affirming without opinion an October 16, 1997 decision of IJ Joanna Miller Bukszpan denying him asylum and withholding of deportation¹ under the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1101 et seq. ("INA"). The IJ concluded that Sall had "firmly resettled" in a third country before applying for asylum in the United States and therefore was ineligible for asylum. He concluded as well that even if Sall were not barred from receiving asylum by the "firmly resettled" rule, he nonetheless did not meet the requirements for a grant of asylum because (1) he failed to demonstrate either past persecution or a well-founded fear of future persecution and (2) changed conditions in Mauritania permit Sall's safe return. Sall contests each of these findings.

The following facts are drawn from Sall's application for asylum and his testimony before the IJ. Sall was born in Mauritania and lived with his family near the river demarcating the border with Senegal. He supported himself by farming and herding. At the time relevant to this case, petitioner described Mauritania as being run by "white Moors" who were hostile to black persons such as Sall and his family. After various incidents of abuse, "white Moor" military men came to Sall's home in 1989, confiscated the family's identification documents, and informed Sall and his family that because they were black, they "were not Mauritanians" and must leave the country. The soldiers then took away Sall's brothers, who had argued with them. Sall later learned that his brothers had likely been killed. Meanwhile, soldiers separated Sall from his parents, briefly imprisoned him, and then forced him and about thirty others at gunpoint to cross into Senegal.

In Senegal he was met by Red Cross workers, who took him to a refugee camp where he was reunited with his parents.² Although the Red Cross provided some food, Sall and other young men performed odd jobs to help make ends meet. Residents slept in tents. He stayed at the refugee camp for about four-and-one-half years, during which time he was listed on his father's "card."³ Dissatisfied with conditions at the camp, Sall eventually secured a ride to Dakar, the capital of Senegal, where he helped unload and carry goods for tips. After nine months in Dakar, Sall paid someone to transport him to the United States, where he arrived in March 1995 and entered without inspection.

After being served a notice to appear by the Immigration and Naturalization Service ("INS"),⁴ Sall conceded deportability and applied for asylum, withholding of removal, and, in the alternative, voluntary departure. To support his claims, Sall testified and provided documents such as country reports and newspaper accounts of the situation of blacks in Mauritania, a letter Sall alleged to be from the Saint-Louis regional president of the Senegal Red Cross confirming Sall's presence at the Thilogne refugee camp, and a letter Sall alleged to be from his mother describing the refugee camp's difficult conditions. In addition, Sall submitted a letter from the United Nations High Commissioner for Refugees ("UNHCR") stating that UNHCR Senegal had no record of Sall or his parents.

After reviewing this evidence, the IJ first found that Sall was ineligible for asylum because he had been "firmly resettled" in Senegal before applying for asylum in the United States. She based this conclusion on findings that Sall had lived in Senegal for about five years "and was clearly under no impediments to work or to travel within the country."

Second, although a finding of "firm resettlement" precludes a grant of asylum, see 8 C.F.R. § 208.15, the IJ found in the alternative that Sall had not demonstrated a well-founded fear of persecution and therefore did not meet the definition of a "refugee." Her conclusion was based on findings that the UNHCR "is the authority involved in the refugee camps" for Mauritanian refugees in Senegal and that the Red Cross letter had "limited probative value." She also found that she could not verify the legitimacy of the letter Sall said was from his mother. Based on these findings, the IJ found that Sall did not meet his burden of showing a well-founded fear of persecution.

Accordingly, the IJ denied Sall's application for asylum and withholding of deportation. The BIA affirmed without opinion, and this petition for review followed.

I. Standard for "Firm Resettlement" Findings

In general, we review an IJ's findings of fact for "substantial evidence," see, e.g., Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005), and the "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We agree with the conclusion of our sister circuits that the "substantial evidence" standard applies when reviewing findings of firm resettlement. See, e.g., Nahrvani v. Gonzales, 399 F.3d 1148, 1152 (9th Cir.2005); Salazar v. Ashcroft, 359 F.3d 45, 50 (1st Cir.2004); Diallo v. Ashcroft, 381 F.3d 687, 695 (7th Cir.2004); Elzour v. Ashcroft, 378 F.3d 1143, 1150-51 (10th Cir.2004); Rife v. Ashcroft, 374 F.3d 606, 611-12 (8th Cir.2004); Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir.2001); Mussie v. INS, 172 F.3d 329, 331 (4th Cir.1999).

Our sister circuits have diverged, however, as to what constitutes "firm resettlement" as a matter of law. According to the relevant regulation,

[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 (emphasis supplied). In some circuits, absent "an offer" of some kind of permanent resettlement, "firm resettlement" is not demonstrated. See Diallo, 381 F.3d at 694-95; Abdille, 242 F.3d at 486. Even in circuits hewing closely to the regulation, however, an "extended, undisturbed residence in a third country creates a presumption of firm resettlement that will satisfy the definition." Maharaj v. Gonzales, 416 F.3d 1088, 1092 (9th Cir.2005) (citing Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir.1998)).

Other circuits have adopted a broader conception of "firm resettlement" by applying a "totality of the alien's circumstances" test. See Mussie, 172 F.3d at 331-32 (denying petition for review upon a finding of firm resettlement in part based on six-year stay in third country, receipt of government assistance, and renting of personal apartment); Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir.1994) (considering family ties); Farbakhsh v. INS, 20 F.3d 877, 881 (8th Cir.1994) (listing factors relevant to determination of firm resettlement, such as "family ties" and "business or property connections") (internal quotation marks omitted); Chinese Am. Civil Council v. Att'y Gen., 566 F.2d 321, 326 (D.C.Cir.1977) (finding Chinese asylum applicants had firmly resettled during lengthy stay in Hong Kong); but see Diallo, 381 F.3d at 695 (rejecting "the now outdated `totality of the circumstances' analysis").

We are convinced by the reasoning of those circuits that have applied the "totality of the circumstances" test for two reasons. First, as discussed below, the plain language of the regulation supports this understanding of firm resettlement. 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 refuge abroad, regardless of whether a formal "offer" of permanent settlement has been received.

The regulation states that one is "firmly resettled" if "prior to arrival in the United States" he has "received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement...." 8 C.F.R. § 208.15. By its terms, the regulation places particular importance on the presence vel non of an actual offer of permanent resident status issued by an intermediate third country prior to arrival in the United States. While "permanent resident status" has an analog in American law, see, e.g., 8 C.F.R. § 101.1, as of course does "citizenship," the regulation presumably refers to "some other type of permanent resettlement" so that foreign statutes not precisely analogous to United States immigration provisions could be recognized by IJs evaluating whether an applicant has firmly resettled. Because not every nation employs an immigration regime as elaborate as that of the United States, "offers" of "some other type of permanent resettlement" may not always include written documentation, much less formal state-issued identification cards. The language of the regulation therefore also requires an IJ to examine...