Nanda Si v. Holder , 375 F. App'x 126 ( 2010 )

08-4025-ag (L); 09-3373-ag (Con)
Si v. Holder
BIA
Nelson, IJ
A094 824 671
A094 824 672
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 30 th day of April, two thousand ten.
PRESENT:
ROGER J. MINER,
GUIDO CALABRESI,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
NANDA SI, NYAN THAR MIN NYO,
Petitioners,
v. 08-4025-ag (L);
09-3373-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent. *
_______________________________________
FOR PETITIONER: Lawrence T. Kass, New York, N.Y.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Shelley R.
Goad, Senior Litigation Counsel;
Katharine E. Clark, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is GRANTED.
Nanda Si, a native and citizen of Burma, and Nyan Thar
Min Nyo, a native of Japan, seek review of a July 16, 2008,
order of the BIA, affirming the October 24, 2007, decision
of Immigration Judge (“IJ”) Barbara A. Nelson, which denied
their applications for asylum and withholding of removal to
Japan and granted withholding of removal to Burma. In re
Nanda Si, Nyan Thar Min Nyo, Nos. A094 824 671, A094 824 672
(B.I.A. July 16, 2008), aff’g Nos. A094 824 671, A094 824
672 (Immig. Ct. N.Y. City Oct. 24, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history in this case.
Under the circumstances of this case, we review both
the BIA’s and the IJ’s decisions. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We “review [] the
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agency’s factual findings under the substantial evidence
standard, which requires that the IJ’s findings be supported
by reasonable, substantial and probative evidence in the
record.” Jin Yi Liao v. Holder, 558 F.3d 152, 156 (2d Cir.
2009)(internal quotation marks omitted); see 8 U.S.C.
§ 1252(b)(4)(B); see also Sall v. Gonzales, 437 F.3d 229,
232 (2d Cir. 2006).
In denying Si and Min Nyo’s applications for asylum,
the agency concluded that they were firmly resettled in
Japan prior to their arrival in the United States. 8 C.F.R.
§ 1208.15. We have held that in determining the issue of
firm resettlement, the agency should apply a totality of the
circumstances test. Sall, 437 F.3d at 233. Under this
test, the agency may look beyond the absence of a formal
offer of permanent residence from a third country and
examine the “totality of the alien’s circumstances” to
determine whether the applicant has found an “alternative
place[] of refuge abroad.” Id at 232,233; see also Jin Yi
Liao, 558 F.3d at 157. Factors the agency may consider
include: “whether [an applicant] intended to settle in [the
country] when he arrived there, whether he has family ties
there, whether he has business or property connections that
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connote permanence, and whether he enjoyed the legal rights
– such as the right to work and to enter and leave the
country at will – that permanently settled persons can
expect to have.” Sall, 437 F.3d at 235.
Here, the agency reasonably found that Si and Min Nyo
had resettled in Japan because they lived in the country for
over fifteen years, their husband/father continues to live
there, and they have status in Japan derivative to their
refugee husband/father, which, although expired at the
present time, can apparently be renewed and has been renewed
in the past without complication. Furthermore, the BIA
reasonably noted that Si was able to work in Japan as an
assistant cook, and although she was trained in mathematics,
her inability to find work in her field was “insufficient to
establish that she did not have the right to freely work in
Japan.” Moreover, the BIA noted that Si and her husband
were allowed to rent property, travel to and from Australia,
and send their child to public school. Thus, the BIA’s
finding of firm resettlement was supported by substantial
evidence. See 8 U.S.C.
§ 1252(b)(4)(B).
When the government carries its burden of establishing
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a prima facie case of firm resettlement, the burden then
shifts to the applicants to show that they meet one of the
statutory exceptions to rebut a finding of firm
resettlement. 8 C.F.R. § 1208.15. The exceptions include
establishing that their residence in the country was “so
substantially and consciously restricted” by the country’s
government so as to preclude resettlement. Id. §
1208.15(b). Here, the BIA erred by failing to consider
material evidence regarding whether Si and Min Nyo met their
burden of proving an exception to their firm resettlement.
Id.; see Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir.
2006). Specifically, the agency neglected to consider
evidence of the conditions under which the petitioners lived
compared to other residents of the country; “the type of
housing . . . made available to [petitioners]; the types and
extent of employment available to [petitioners]; the extent
to which [petitioners] received permission to hold property
and to enjoy other rights and privileges, such as travel
documentation that includes a right of entry or reentry,
education, public relief, or naturalization, ordinarily
available to other residents in the country.” 8 C.F.R.
§ 1208.15(b). While the BIA analyzed much of this evidence
in the context of whether the government met its burden of
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establishing a prima facie case of firm resettlement, it did
not do so with respect to whether petitioners met their
burden of qualifying for an exception to the firm
resettlement bar. See Jorge-Tzoc, 435 F.3d at 150(concluding that the agency errs when it ignores material
evidence relevant to petitioner’s claim).
Ultimately, the agency erred by failing to consider
material evidence relevant to whether Si and Min Nyo
qualified for an exception to the firm resettlement bar. See
id. Accordingly, remand is warranted for reconsideration of
the record evidence and of Si and Min Nyo’s eligibility for
asylum.
For the foregoing reasons, the petition for review is
GRANTED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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