Sultani v. Gonzales

• Citation: 455 F.3d 878
• Decision Date: 27 July 2006
• Docket Number: No. 05-2649.,05-2649.
• Parties: Ahmad Wali SULTANI; Saleha Sultani; Beejan Sultani; Mariam Sultani; Ahmad Wasim Sultani, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

455 F.3d 878

Ahmad Wali SULTANI; Saleha Sultani; Beejan Sultani; Mariam Sultani; Ahmad Wasim Sultani, Petitioners, v. Alberto GONZALES, Attorney General, Respondent.

No. 05-2649.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2006.

Filed: July 27, 2006.

COPYRIGHT MATERIAL OMITTED

R. Mark Frey, argued, St. Paul, MN, for appellant.

D. Gerald Wilhelm, Asst. U.S. Attorney, Minneapolis, MN, for appellee.

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.

BOWMAN, Circuit Judge.

Ahmad Wali and Saleha Sultani and their children, Beejan, Mariam, and Ahmad Wasim, challenge an order of the Board of Immigration Appeals (BIA), which summarily affirmed the decision of the Immigration Judge (IJ) denying the Sultanis' applications for asylum from Afghanistan. We deny the petition for review.

Ahmad Wali fled Afghanistan for Pakistan in September 1981 after Soviet forces invaded Afghanistan. In 1983, Saleha, Beejan, and Mariam joined Ahmad Wali in Pakistan. The family remained in Pakistan until 1988, during which time Ahmad Wali worked for various international relief agencies. While in Pakistan, the Sultanis applied for refugee status in Australia, and they were granted that status in August 1988. The family moved to Melbourne, Australia, where Ahmad Wasim was born.

In September 1989, the Sultani family came to the United States as visitors with permission to remain in the country for a temporary period in order to obtain medical treatment for Beejan. The Sultanis did not leave the United States when the visitation period ended. In September 1990, Ahmad Wali and Saleha were placed in deportation proceedings. Through their counsel, Ahmad Wali and Saleha conceded deportability, but requested a one-year voluntary departure period in order to complete Beejan's medical treatment in the United States. After hearing testimony from Ahmad Wali, the IJ continued the deportation proceedings to allow the Sultanis and their attorney an opportunity to consult with Australian authorities to determine the Sultanis' immigration status in Australia. The IJ instructed the Sultanis to use the break in proceedings to decide whether they intended to apply for asylum in the United States or to proceed with their request for voluntary departure.

When the deportation proceedings resumed in January 1991, the Sultanis' attorney stated that she had spoken with Australian authorities and those authorities confirmed that the Sultanis were resettled in Australia and that they could maintain their status in Australia by properly renewing their official documents. The Sultanis declined to apply for asylum in the United States and instead reiterated their request for voluntary departure, assuring the IJ and the government that they would maintain their status in Australia during the departure period. Based on these representations, the government did not oppose voluntary departure, and the IJ granted the request. The Sultanis were permitted to voluntarily depart the United States on or before January 4, 1992, or face deportation to Australia or, in the alternative, Afghanistan. Thereafter, the Sultanis received a number of extensions of their voluntary departure date, the last one expiring on April 12, 1993, but they did not leave the United States. The Sultanis renewed their status in Australia on several occasions — the last such renewal expiring in August 1994—but they eventually allowed their status in Australia to lapse.

On January 24, 2002, the Sultanis filed a motion to reopen the 1991 deportation proceedings, claiming that they were entitled to asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on their fear of persecution in Afghanistan.¹ The IJ denied the motion to reopen, concluding that the Sultanis were firmly resettled in Australia prior to their arrival in the United States and thus were ineligible for asylum from Afghanistan. The IJ also denied on the merits the Sultanis' applications for withholding of removal and relief under the CAT.

The Sultanis appealed to the BIA, which remanded the case to the IJ to consider whether the Sultanis had a "well-founded fear of persecution based upon the current political situation" in Afghanistan. Decision of BIA, Apr. 1, 2003. On remand, the IJ again concluded that the Sultanis had firmly resettled in Australia and thus were ineligible for asylum in the United States, notwithstanding the current conditions in Afghanistan. The IJ granted the Sultanis withholding of removal to Afghanistan and ordered the family deported or removed to Australia or to any country other than Afghanistan that would accept them. The BIA summarily affirmed the IJ's order. The Sultanis appeal, arguing that the IJ improperly concluded that they were firmly resettled in Australia, failed to follow the BIA's directive to consider their claim of persecution in light of current conditions in Afghanistan, and ignored evidence regarding conditions in Australia for Afghans.

When the BIA summarily affirms an IJ's decision, we review the IJ's decision as the final agency determination. Habtemicael v. Ashcroft, 370 F.3d 774, 779 (8th Cir.2004). A finding of firm resettlement is a factual determination that we review under the deferential substantial-evidence standard. Rife v. Ashcroft, 374 F.3d 606, 611-12 (8th Cir.2004). Under this standard, the IJ's findings must be upheld unless the alien demonstrates that the evidence he presented not only supports a contrary conclusion but compels it. 8 U.S.C. § 1252(b)(4)(B) (stating that "the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary"). We review the IJ's legal conclusions de novo, giving deference where appropriate to the agency's interpretation of the law it is charged with administering. Fisher v. INS, 291 F.3d 491, 496 (8th Cir.2002).

The Sultanis first challenge the IJ's finding that they were firmly resettled in Australia prior to entering the United States. While an alien who is unable or unwilling to return to his country of origin "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" may be granted asylum in this country, 8 U.S.C. § 1101(a)(42)(A), asylum is not available to an alien who was firmly resettled in another country before coming to the United States, 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15. The firm-resettlement bar to asylum ensures that "asylum is not granted to aliens who have found a haven from persecution" elsewhere. Ali v. Reno, 237 F.3d 591, 595 (6th Cir.2001).

"An 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. While the question of whether a third country formally offered permanent resident status, citizenship, or some form of permanent resettlement is "an important factor and, indeed, the proper place to begin the firm resettlement analysis," in some cases direct evidence of such an offer may be difficult or impossible to procure. Rife, 374 F.3d at 611. Consequently, other factors may be considered to determine whether an alien's stay in a third country was more than simply "a stopover en route to refuge in the United States." Farbakhsh v. INS, 20 F.3d 877, 882 (8th Cir. 1994). See also Abdille v. Ashcroft, 242 F.3d 477, 487 (3d Cir.2001), cited with approval in Rife, 374 F.3d at 611, and recognizing that other factors may be considered if evidence of a resettlement offer is unobtainable.

Here, the IJ concluded in both its order denying the Sultanis' motion to reopen and in its decision on remand from the BIA that the Sultanis were firmly resettled in Australia prior to arriving in the United States. While residing in Pakistan, the Sultanis applied for and were granted refugee status in Australia. The Australian government issued Certificates of Identity to the Sultanis that listed their status as refugees and permitted indefinite renewal of that status. The Certificates of Identity indicated that the Sultanis enjoyed "unrestricted" employment status and were permitted to travel from Australia to the United States and back. Ahmad Wali testified at the 1991 deportation proceedings that the family was in fact resettled in Australia. During those proceedings, the Sultanis and their attorney consulted with the Australian embassy to confirm that the family would be permitted to return to Australia if they maintained their status in that country. Ahmad Wali assured the IJ and the government that his family members had renewed their status in Australia in the past and intended to maintain their status in the future. Other facts in the record also support the IJ's conclusion that the Sultanis were firmly resettled in Australia. While living in Melbourne, the family rented an apartment, Ahmad Wali obtained employment, Beejan and Mariam attended public school, Saleha gave birth to a child, the family traveled freely throughout the city, and the family received free medical care and monetary assistance from the government. See Abdille, 242 F.3d at 487 (noting factors IJ may consider other than offer of permanent resettlement to resolve issue of firm...