Ghenet Naizghi v. Loretta Lynch , 623 F. App'x 53 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2511
GHENET DEBESAI NAIZGHI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General, 1
Respondent.
No. 14-1530
GHENET DEBESAI NAIZGHI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Argued: October 30, 2014 Decided: September 10, 2015
1 Loretta E. Lynch is substituted as Respondent for her
predecessor, Eric H. Holder Jr., as Attorney General of the
United States. See Fed. R. App. P. 43(c)(2).
Before TRAXLER, Chief Judge, and KING and THACKER, Circuit
Judges.
Petitions for review denied by unpublished per curiam opinion.
Chief Judge Traxler wrote a dissenting opinion.
ARGUED: Monalisa Dugue, Geoffrey James Heeren, VALPARAISO
UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner.
Corey Leigh Farrell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Sara Dietrich,
Cecilia Lopez, Michelle Prasad, VALPARAISO UNIVERSITY LAW
CLINIC, Valparaiso, Indiana, for Petitioner. Joyce R. Branda,
Acting Assistant Attorney General, Terri J. Scadron, Assistant
Director, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Ghenet Debesai Naizghi (“Petitioner”) fled Eritrea in
1994, lived in Italy until 2009, and then applied for United
States asylum status in 2010. The Government opposed
Petitioner’s request for asylum, arguing that she was firmly
resettled in Italy and, therefore, barred from asylum relief.
Specifically, the Government argued that Petitioner was firmly
resettled because she was eligible to apply for Italian
citizenship; secured an Italian work permit; and was able to
travel, work, and obtain medical care in Italy. For these
reasons, the Immigration Judge (“IJ”) and the Board of
Immigration Appeals (“Board”) denied Petitioner’s request.
Petitioner sought review by this court. Because we believe the
Board’s decision is supported by substantial evidence, we deny
the petitions for review.
I.
Petitioner and her family are Pentecostal Christians,
and Petitioner’s father was a Pentecostal preacher. Because of
their religion, Petitioner and her family suffered persecution
by the Eritrean government. In 1993, Eritrean soldiers abducted
Petitioner’s father, and in 1994, soldiers forcibly entered
Petitioner’s home and abducted her brother. Petitioner has not
seen or heard from her father or brother since.
3
Petitioner obtained travel documents and fled to Italy
in 1994. She had no legal status and no family or social
connections in Italy when she arrived. She managed to find work
as a housekeeper and eventually applied for asylum. But for
reasons absent from the record, the Italian government denied
her asylum application. Therefore, Petitioner resided in Italy
unlawfully from 1994 to 1996. Petitioner applied for a living
subsidy from the Italian government, which was also denied. In
1996, Petitioner obtained a temporary work permit, which
initially had to be renewed every year but later became
renewable every other year. According to Petitioner’s testimony
during her asylum hearing, she was required to show proof of
employment and to pay taxes in order to renew the temporary work
permit. Nonetheless, even at times when Petitioner was not
employed, Italy consistently renewed her work permit over a
period of 12 years. As such, Petitioner was able to reside in
Italy from 1996 to 2008 on a string of temporary work permits.
When she could afford rent, Petitioner rented a room in an
apartment; when she could not, she lived with a nun.
Although her testimony was not supported with specific
references to Italian law, Petitioner testified that Italian law
permits individuals who have resided in Italy for ten years to
apply for citizenship. Thus, Petitioner claims she became
eligible to apply for Italian citizenship in 2004. Two years
4
later, in 2006, Petitioner applied for citizenship. According
to Petitioner’s uncontroverted testimony, to complete the
application process she was “required . . . to go to the embassy
of Italy in Eritrea and have [a] document translated and
authenticated.” A.R. 150. 2 Fearing that returning to Eritrea
would expose her to the same fate that befell other members of
her family, Petitioner submitted her application with all
required forms except the authenticated document. Italy
eventually rejected Petitioner’s citizenship application -- its
reason for doing so is not in the record. However, Petitioner
remained in Italy on her temporary work permit.
In 2008, while still in Italy, Petitioner was raped by
patrons of the restaurant where she worked. By virtue of her
temporary work permit, she received medical care at an Italian
hospital. Petitioner’s testimony as well as the IJ’s findings
indicate that the Italian government covered her medical
expenses. Following the sexual assault, Petitioner traveled
back to Eritrea on August 6, 2008, to be with her mother. At
the time, she did not intend to return to Italy. While in
Eritrea, Petitioner did not attempt to obtain the required form
needed for Italian citizenship.
2
Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.
5
On August 18, 12 days after she arrived in Eritrea,
Petitioner was attending a prayer meeting at her mother’s home.
Government soldiers interrupted the meeting and demanded to
question Petitioner. When she hesitated to comply, the soldiers
dragged Petitioner out of the house and beat her. The soldiers
then took her to another location, where they held her captive
in a small, poorly ventilated structure. They beat, sexually
assaulted, and starved her for eight days before her mother was
finally able to successfully bribe the soldiers to release her.
On September 8, 2008, Petitioner fled once again to
Italy, intending to use the country as a stepping-stone for
entry into the United States. She arrived with no job, but she
was later able to resume work as a housekeeper pursuant to her
temporary work permit, which remained active. In February 2009,
the United States granted Petitioner a B-2 travel visa for a
period of seven months. She left Italy for the United States on
June 1, 2009. At that point, Petitioner had spent approximately
14 years in Italy. Petitioner claims that after coming to the
United States, her Italian legal documents, including her
temporary work permit, were stolen.
6
Petitioner applied for asylum in the United States on
March 4, 2010. 3 The Government served Petitioner with a Notice
to Appear on April 20, 2010, alleging she had overstayed her B-2
travel visa. Petitioner appeared before the IJ on April 30,
2012, and conceded her removability, but she requested asylum
and withholding of removal. The Government did not oppose
withholding of removal, but argued that Petitioner was subject
to the firm resettlement bar to asylum. The Government relied
on Petitioner’s testimony regarding Italy’s citizenship
application process, the amount of time she lived in Italy, the
renewal of her work permit, and her ability to receive
subsidized medical care.
The IJ granted Petitioner’s application for
withholding of removal but denied her asylum petition because it
concluded that she had been firmly resettled in Italy before
arriving in the United States and was, therefore, barred from
asylum relief. On November 25, 2013, the Board affirmed the
IJ’s finding of firm resettlement, providing its own analysis.
3By this point, Petitioner had overstayed her travel visa
by two months, and during that time, she had not attempted to
even begin the asylum process in the United States.
7
Petitioner filed a timely petition for review with this court on
June 4, 2014. 4
II.
When the Board affirms the IJ’s opinion and
supplements the IJ’s reasoning, as it did here, we review both
opinions. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir.
2014). We review for substantial evidence a Board’s decision
that an individual is firmly resettled. See Mussie v. U.S.
Immigration & Naturalization Serv., 172 F.3d 329, 331 (4th Cir.
1999). Under this standard, we treat the Board’s findings as
conclusive “unless any reasonable adjudicator would be compelled
to conclude to the contrary.” Cordova, 759 F.3d at 337
(internal quotation marks omitted).
III.
A.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) statutorily bars an alien
from being eligible for asylum if he or she was “firmly
resettled in another country prior to arriving in the United
4
Petitioner filed two petitions for review. The first, No.
13-2511, sets forth the arguments outlined in this opinion. The
second, No. 14-1530, was filed in response to the Government’s
motion to dismiss for lack of jurisdiction, which was denied.
The second petition for review does not add any substantive
arguments for our review.
8
States.” 8 U.S.C. § 1158(b)(2)(A)(vi). Although IIRIRA does
not define the term “firm resettlement,” the Code of Federal
Regulations fills this definitional gap, defining “firm
resettlement” as follows:
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. § 1208.15. Additionally, the Board has provided a
framework to streamline the case-by-case adjudication of asylum
claims pursuant to this definition of firm resettlement. See
Matter of A-G-G-, 25 I. & N. Dec. 486, 500-03 (B.I.A. 2011).
The Board’s framework consists of four steps. In step
one, the government proffers prima facie evidence that the
petitioner has been firmly resettled in a third country. See A-
G-G-, 25 I. & N. Dec. at 501. If the government fails to
present a prima facie case of an offer of permanent residence,
the inquiry ends. If the government succeeds, then the court
moves on to step two, which shifts the burden to the asylum
applicant to show “by a preponderance of the evidence that such
an offer has not, in fact, been made or that he or she would not
qualify for it.” Id. at 503. Then, in step three, the IJ
evaluates the totality of the evidence to determine whether the
applicant has, in fact, rebutted the government’s proffer. See
9
id. If the IJ determines the applicant effectively rebutted the
government’s case, the applicant may be granted asylum. See id.
But if the applicant has failed, the IJ proceeds to step four,
and the applicant must establish that she meets one of the
regulatory exceptions to a finding of firm resettlement. 5 See
id.
At the first step, the Government bears the initial
burden of proffering prima facie evidence of firm resettlement.
See A-G-G-, 25 I. & N. Dec. at 501. According to A-G-G-, the
Government may carry its burden preferably via direct evidence
or, in the absence of direct evidence, via sufficiently clear
and forceful indirect evidence:
In order to make a prima facie showing
that an offer of firm resettlement exists,
the [government] should first secure and
produce direct evidence of governmental
documents indicating an alien’s ability to
stay in a country indefinitely. Such
documents may include evidence of refugee
status, a passport, a travel document, or
other evidence indicative of permanent
residence.
If direct evidence of an offer of firm
resettlement is unavailable, indirect
evidence may be used to show that an offer
5 There are two regulatory exceptions to the firm
resettlement bar: the alien remained in the third country only
for so long as necessary to secure onward travel, or the third
country “substantially and consciously restricted” the alien’s
residence such that “he or she was not in fact resettled.” 8
C.F.R. §§ 1208.15(a), (b).
10
of firm resettlement has been made if it has
a sufficient level of clarity and force to
establish that an alien is able to
permanently reside in the country. Indirect
evidence may include the following: the
immigration laws or refugee process of the
country of proposed resettlement; the length
of the alien’s stay in a third country; the
alien’s intent to settle in the country;
family ties and business or property
connections; the extent of social and
economic ties developed by the alien in the
country; the receipt of government benefits
or assistance, such as assistance for rent,
food, and transportation; and whether the
alien had legal rights normally given to
people who have some official status, such
as the right to work and enter and exit the
country.
Id. at 501-02 (footnote omitted).
This test “focuses exclusively on the existence of an
offer.” A-G-G-, 25 I. & N. Dec. at 501. Indirect evidence is
not afforded weight equal to that afforded to direct evidence:
“according equal weight to indirect evidence, such as the
country’s residence laws, length of an alien’s residence in an
intervening country, or the alien’s intent, is inconsistent with
the fact that only the government of the intervening country can
grant an alien the right to lawfully and permanently reside
there.” Id. Nonetheless, indirect evidence may
circumstantially demonstrate that the alien was offered
permanent residence status, and the legal rights it entails, by
a foreign country if “it has a sufficient level of clarity and
force.” Id. at 502.
11
While the Board did not mention what forms of indirect
evidence are sufficient to prove firm resettlement, alone or in
combination, it did indicate that some types of evidence carry
less weight than others. For example, the Board held that a
lengthy period of residence in a third country cannot, by
itself, establish a prima facie case of firm resettlement. Cf.
A-G-G-, 25 I. & N. Dec. at 501 (“Such a right ‘cannot be gained
through adverse possession.’” (quoting Abdille v. Ashcroft, 242
F.3d 477, 487 (3d Cir. 2001))). However, the Board made clear
that “[t]he existence of a legal mechanism in the country by
which an alien can obtain permanent residence may be sufficient
to make a prima facie showing of an offer of firm resettlement.”
Id. at 502 (emphasis in original). Furthermore, section 1208.15
“only require[s] that an offer of firm resettlement was
available, not that the alien accepted the offer.” Id. at 503.
The Board justified this rule as necessary to protect “the
purpose of the firm resettlement bar, which is to limit refugee
protection to those with nowhere else to turn.” Id.
B.
We have held that when an agency interprets its own
regulation, “the agency’s interpretation controls unless that
interpretation is ‘plainly erroneous or inconsistent with the
regulation.’” Dickenson-Russell Coal Co., LLC v. Sec’y of Labor,
747 F.3d 251, 257 (4th Cir. 2014) (quoting Auer v. Robbins, 519
12
U.S. 452, 461 (1997)). The parties agree that the Board’s
decision in A-G-G- is “a reasonable interpretation of the firm
resettlement statute and regulation, and should be given
deference.” Gov’t’s Br. 23 n.3; see also Pet’r’s Br. 20. We
also agree.
C.
Applying the Board’s framework as laid out in A-G-G-,
substantial evidence supports the Board’s conclusion that
Petitioner was firmly resettled in Italy. The Government
offered sufficient indirect evidence 6 to present a prima facie
case that Petitioner was firmly resettled in Italy before
arriving in the United States, and Petitioner did not
sufficiently rebut that evidence.
In order to make its prima facie case, the Government
offered Petitioner’s uncontroverted testimony that, by virtue of
her ten-year stay in Italy, she was eligible to apply for
citizenship pursuant to Italian citizenship law. The Government
also proffered the duration of Petitioner’s stay in Italy; her
temporary work permit, which she renewed several times; her
ability to travel pursuant to the permit; her receipt of
government subsidized medical care as a work permit holder; and
6
Neither party argues that the Government provided direct
evidence. Thus, we proceed under the indirect evidence
analysis.
13
her ability to obtain housing. This evidence is sufficient to
shift the burden to Petitioner. See Mussie v. United States
Immigration & Naturalization Service, 172 F.3d 329, 332 (4th
Cir. 1999) (“A duration of residence in a third country
sufficient to support an inference of permanent resettlement in
the absence of evidence to the contrary shifts the burden of
proving absence of firm resettlement to the applicant.” (quoting
Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir. 1998))); Hanna v.
Holder, 740 F.3d 379, 394 (6th Cir. 2014) (concluding that
testimony of a petitioner and her father that the petitioner was
granted “landed immigrant status” in Canada was enough for the
Government to satisfy its prima facie case).
At A-G-G- steps two and three, we believe substantial
evidence supports the Board’s conclusion that Petitioner did not
rebut the prima facie case of firm resettlement “by a
preponderance of the evidence.” 25 I. & N. Dec. at 503.
Petitioner provided scant evidence that she did not receive an
offer of citizenship from Italy or that she would not qualify
for citizenship. See id. Indeed, we find specious her argument
that she was unable to complete Italy’s citizenship process
because she could not obtain a required form from Eritrea, but
she then returned to Eritrea and still did not obtain the proper
paperwork. Therefore, we cannot say that a “reasonable
14
adjudicator would be compelled to conclude” that Petitioner was
not firmly resettled in Italy. Cordova, 759 F.3d at 337.
IV.
For the foregoing reasons, we deny the petitions for
review.
PETITIONS FOR REVIEW DENIED
15
TRAXLER, Chief Judge, dissenting:
With respect to the views of my distinguished colleagues, I
would grant the petition for review. In my view, Naizghi
rebutted the Government’s evidence of an Italian offer of
permanent status. She testified without contradiction that the
Italian application process required her to return to Eritrea,
the country from which she was fleeing persecution, and submit
various authenticated documents through the Italian Embassy
there. In my opinion, this is not an offer of permanent status
by Italy. The fact that Naizghi retreated to Eritrea to be with
her family after being raped in Italy and subsequently returned
to Italy without the required paperwork does not convince me
otherwise. Twelve days after her arrival, Naizghi was abducted
by the government from a prayer meeting and subjected to a
variety of abuses by her captors. After her mother secured her
release by bribing officials, Naizghi returned to Italy. In my
opinion, it would be unreasonable to expect her to remain in
Eritrea to secure documentation. Accordingly, Naizghi satisfied
her burden of rebutting the Government’s prima facie case. I
therefore would grant Naizghi’s petition for review and allow
her to continue seeking asylum in this country.
16