Shahabdeen v. Holder , 362 F. App'x 208 ( 2010 )

09-1855-ag
Shahabdeen v. Holder
BIA
Abrams, IJ
A099 927 169
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27 th day of January, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 MOHAMED SHIFAN MOHAMED SHAHABDEEN,
14 Petitioner,
15
16 v. 09-1855-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Benjamin B. Xue, New York, New York.
24
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General, Civil Division; M. Jocelyn
3 Lopez Wright, Senior Litigation
4 Counsel; Kristin K. Edison,
5 Attorney, Office of Immigration
6 Litigation, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED, that the petition for review
12 is GRANTED.
13 Mohamed Shifan Mohamed Shahabdeen, a native and citizen
14 of Sri Lanka, seeks review of an April 9, 2009 order of the
15 BIA, affirming the November 7, 2007 decision of Immigration
16 Judge (“IJ”) Steven R. Abrams, which denied his application
17 for asylum, granted withholding of removal to Sri Lanka, and
18 declined to reach his request for relief under the
19 Convention Against Torture (“CAT”). In re Mohamed Shifan
20 Mohamed Shahabdeen, No. A099 927 169 (B.I.A. Apr. 9, 2009),
21 aff’g No. A099 927 169 (Immig. Ct. N.Y. City Nov. 7, 2007).
22 We assume the parties’ familiarity with the underlying facts
23 and procedural history in this case.
24 Under the circumstances of this case, we review both
25 the BIA’s and the IJ’s decisions. See Yan Chen v. Gonzales,
26 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards
27 of review are well-established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,
2 95 (2d Cir. 2008).
3 In denying Shahahbdeen’s application for asylum, the
4 agency concluded that he was firmly resettled in Dubai,
5 United Arab Emirates (“U.A.E.”) prior to his arrival in the
6 United States. 8 C.F.R. § 1208.15. We have held that in
7 determining the issue of firm resettlement, the agency
8 should apply a totality of the circumstances test. See Sall
9 v. Gonzales, 437 F.3d 229, 232-33 (2d Cir. 2006). Under
10 this test, the agency may look beyond the presence of a
11 formal offer of permanent residence from a third country and
12 examine the “totality of the alien’s circumstances” to
13 determine whether the applicant has found an “alternative
14 place[] of refuge abroad.” Id; see also Jin Yi Liao v.
15 Holder, 558 F.3d 152, 157-58 (2d Cir. 2009). Factors the
16 agency may consider include: “whether [the applicant]
17 intended to settle in [the country] when he arrived there,
18 whether he has family ties there, whether he has business or
19 property connections that connote permanence, and whether he
20 enjoyed the legal rights–such as the right to work and enter
21 and leave the country at will–that permanently settled
22 persons can expect to have.” Sall, 437 F.3d at 235.
23 Here, the agency found that Shahabdeen had resettled in
3
1 the U.A.E. because he lived there for three and a half
2 years, had work authorization, employment, and lodging at a
3 hotel, was able to renew his residence permit, and had
4 family ties to the country. However, we find that the
5 agency erred by failing to consider material evidence
6 weighing against this conclusion. See Jorge-Tzoc v.
7 Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). Specifically,
8 the agency neglected to consider that Shahabdeen’s residence
9 permit was valid for only a temporary period, that he had
10 difficulty renewing it, and that his continued ability to
11 remain in the U.A.E. was entirely dependent on his continued
12 employment. Although Shahabdeen’s brother lived in the
13 U.A.E., he was also a temporary worker. Finally, the agency
14 failed to discuss Shahabdeen’s testimony that the U.A.E.
15 does not offer citizenship, permanent residence, or asylum
16 to non-nationals, and thus, as a temporary resident of that
17 country, he was not guaranteed safety from persecution. *
18 While Shahabdeen further argues that he qualifies for
19 an exception to the statutory bar to asylum for firm
*
We also note the argument Shahabdeen raised in his
brief before the BIA that foreign workers in Dubai have
few of the same rights as U.A.E. citizens, including
redress for employment grievances and rights to own real
property.
4
1 resettlement, he failed to raise this issue in his appeal to
2 the BIA. Because the Government has raised this failure to
3 exhaust in its brief to this Court, we decline to consider
4 this issue. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
5 104, 119-20, 124 (2d Cir. 2007).
6 Ultimately, the agency erred by failing to consider
7 material evidence relevant to whether Shahabdeen was firmly
8 resettled in the U.A.E. See Jorge-Tzoc, 435 F.3d at 150.
9 Because the IJ found that Shahabdeen established that he
10 would face persecution if returned to Sri Lanka, remand is
11 warranted for reconsideration of the record evidence and of
12 Shahabdeen’s eligibility for asylum.
13 For the foregoing reasons, the petition for review is
14 GRANTED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
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