Nadim Hanna v. Eric Holder, Jr. , 740 F.3d 379 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0016p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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NADIM SHAKOURI HANNA,
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Petitioner,
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No. 12-4272
v.
,
>
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Respondent. -
ERIC H. HOLDER, JR.,
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On Petition for Review of a Final Order of the
Board of Immigration Appeals.
No. A 46 737 768.
Argued: October 9, 2013
Decided and Filed: January 17, 2014
Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Faten Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER,
Farmington Hills, Michigan, for Petitioner. James E. Grimes, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Faten
Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER, Farmington Hills, Michigan,
Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for
Petitioner. James E. Grimes, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Nadim Shakouri
Hanna petitions for review of an order of the Board of Immigration Appeals (“BIA”).
Hanna was convicted of felonious assault under Mich. Comp. Laws § 750.82 and
conceded removability through his first counsel. Upon threat of removal from the
1
No. 12-4272 Hanna v. Holder Page 2
United States, Hanna applied for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”) and under the Convention Against Torture
(“CAT”). The Immigration Judge (“IJ”) ordered Hanna removed and denied his
applications for withholding of removal, and the BIA adopted and affirmed the IJ’s
decision. The BIA then reopened Hanna’s asylum application based on changed
conditions for Chaldean Christians in Iraq. On remand, Hanna, represented by new
counsel, contested his removability and pursued claims for asylum and withholding of
removal. The IJ granted Hanna’s application for withholding of removal but held Hanna
ineligible for asylum because he firmly resettled in Canada before entering the United
States. The IJ also held that Hanna was bound to his first attorney’s concession of
removability. The BIA affirmed. On appeal to this Court, Hanna maintains that he is
not removable and that the firm resettlement bar does not foreclose his asylum
application. For the reasons set forth below, we grant Hanna’s petition for review,
reverse the BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his
attorney’s concession of removability. Because the BIA’s determination that Hanna is
removable is predicated on this concession, we reverse the finding that Hanna is
removable. We remand to the BIA to determine, consistent with this opinion, whether
Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a crime involving moral
turpitude. Separately, we affirm the BIA’s determination that Hanna is ineligible for
asylum.
I.
Hanna, born on April 10, 1979, is a native and citizen of Iraq. Hanna and his
family are Chaldean Christians. Hanna left Iraq in February 1990 with his father,
mother, four sisters, and one brother. The family initially traveled to Greece, where they
remained until December 1991. From there, they traveled onward to Canada and entered
with “landed immigrant” status. As landed immigrants, Hanna and his family were
considered permanent residents of Canada with permission to live and work. In 1993,
Hanna’s parents obtained permanent resident status in the United States through a
petition filed by Hanna’s sister, who previously had entered and obtained citizenship.
No. 12-4272 Hanna v. Holder Page 3
In May 1993, Hanna entered the United States as a nonimmigrant visitor. Hanna’s
parents petitioned for permanent resident status for their remaining children, including
Hanna. While Hanna’s petition was pending, he resided in Ontario, Canada, attending
Catholic middle school there. Hanna also resided with his parents in the United States
for significant amounts of time, sometimes the majority of the year, as a nonimmigrant
visitor. By traveling to and from Canada and overstaying the visitor’s visas he received
upon entering the United States, Hanna attended high school in the United States,
worked at the family business, and obtained a Michigan driver’s license. During this
time, Hanna retained his landed immigrant status in Canada. Hanna was admitted as a
lawful permanent resident to the United States on November 17, 1998. Subsequently,
Hanna’s Canadian permanent resident status expired. See Immigration and Refugee
Protection Act of Canada, S.C. 2001, c. 27, §§ 28, 41(b) (Can.).
On November 28, 1996, Hanna, then seventeen years old, was cruising in a
parking lot in Southfield, Michigan, while waiting for friends who were attending a
nearby party. The attendant valet, Johny Asmer, told Hanna to stop cruising. Ensuing
words were exchanged, which escalated into shouting. While exiting the parking lot in
his car, Hanna, holding an opened, three-inch, folding knife, threatened to cut Asmer.
Hanna was arrested as a result of this incident, but the charges were twice dropped after
Asmer failed to appear in court. In 1999, however, the State of Michigan reinstated the
charges from the parking lot altercation. Hanna was charged with felonious assault, in
violation of Mich. Comp. Laws § 750.82, and driving with a suspended license. On
March 31, 2000, the Sixth Judicial Circuit Court for Oakland County, Michigan, a
Michigan trial court, found that Hanna committed these offenses after his seventeenth
but before his twenty-first birthday. The Michigan court assigned Hanna to Youthful
Trainee Status and sentenced him to thirty days in the county jail and two years of
probation. As result of the court order, the government commenced removal
proceedings against Hanna by filing of a Notice to Appear (“NTA”), dated January 8,
2002. The government alleged in the NTA that Hanna was convicted on March 31,
2000, for the offense of felonious assault, committed on or about November 28, 1996,
and, for that offense, a sentence of one year or longer may be imposed. The government
No. 12-4272 Hanna v. Holder Page 4
subsequently filed a Form I-261, specifically charging Hanna with an admission date of
May 1993 as a nonimmigrant visitor. The government charged Hanna as subject to
removal, having been convicted of a crime involving moral turpitude (“CIMT”) within
five years after admission and for which a sentence of one year or longer may be
imposed. See 8 U.S.C. § 1227(a)(2)(A)(i).
Removal proceedings were conducted on April 18, 2003, July 25, 2003, and
November 9, 2005, at the Immigration Court in Detroit. Hanna was initially represented
by his attorney, Nasir Daman. On April 18, 2003, the Michigan court order was
admitted into evidence as a record of Hanna’s conviction for felonious assault. Then,
on July 25, 2003, Hanna, through his counsel, admitted the charges in the NTA,
including the factual allegation that Hanna was convicted of the offense of felonious
assault. Hanna, through his counsel, also conceded his removability under 8 U.S.C.
§ 1227(a)(2)(A)(i). The IJ designated Iraq as the country of removal. Further, at the
July 25 hearing, Hanna filed I-589 applications for asylum and for withholding of
removal under the INA and protection under the CAT. Hanna’s withholding application
was supported by his claim that being a Chaldean Christian placed him at risk of harm
in Iraq. At the November 9 hearing, Hanna conceded ineligibility for asylum resulting
from his failure to file an asylum application within one year of entering the United
States. See 8 U.S.C. § 1158(a)(2)(B). Hanna and his father then testified in support of
his application for withholding of removal, averring that Hanna would be subject to
grave danger if removed to Iraq. The IJ denied Hanna’s applications for relief and
ordered Hanna removed to Iraq, with an alternative to Canada, on the charge contained
in the NTA.
Hanna appealed the IJ’s denial of asylum and withholding of removal. On May
30, 2007, the BIA adopted and affirmed the IJ’s decision and declined to remand. Hanna
subsequently moved to reopen removal proceedings on April 28, 2008, contending
entitlement to reopening under the Refugee Crisis in Iraq Act of 2007, Pub. L. No.
110–181, tit. XII, submit. C, § 1247, 122 Stat. 3 (2008) (codified at 8 U.S.C. § 1157),
because conditions in Iraq had deteriorated for Chaldean Christians. The BIA granted
No. 12-4272 Hanna v. Holder Page 5
this motion on October 30, 2008, finding Hanna produced previously unavailable
evidence of significantly worsening conditions in Iraq for its minority Christian
populations. The BIA reopened to allow Hanna to apply for asylum based on his status
as a Chaldean Christian and remanded to the IJ. Hanna reapplied for asylum on May 3,
2010.
After this point, Hanna was represented by Faten Tina Shuker. Continued
removal proceedings were conducted on January 8, 2009, May 3, 2010, and October 26,
2010. On remand, Hanna presented several hundred pages of documentary evidence,
and Hanna and his father testified in support of his applications. The hearings focused
on three issues: whether Hanna’s conviction was for a particularly serious crime
sufficient to preclude relief; whether Hanna merited asylum as a matter of discretion; and
whether Hanna firmly resettled in Canada before immigrating to the United States.
Hanna also raised the issue of his removability.
The IJ entered her decision on October 26, 2010. The IJ found Hanna and his
father credible with respect to a well-founded fear of Hanna’s future persecution as a
Chaldean Christian and held that Hanna’s offense of conviction was not a particularly
serious crime. The IJ accordingly granted Hanna’s application for withholding of
removal under 8 U.S.C. § 1231(b)(3) and held Hanna’s claim for protection under the
CAT moot. With respect to asylum, the IJ noted that an alien who “firmly resettled” in
another country before arriving in the United States is not eligible for asylum. See
8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.13(c)(2)(ii). The IJ held that the
government proffered sufficient evidence showing Hanna “firmly resettled” in Canada,
that Hanna failed to provide evidence sufficient to rebut this contention, and that Hanna
is statutorily ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(vi). As to
removability, the IJ noted that Hanna, through counsel, previously admitted all the
factual allegations contained within the NTA and conceded the charge of removability.
The IJ therefore held that Hanna’s removability was established by the requisite clear
and convincing evidence.
No. 12-4272 Hanna v. Holder Page 6
Hanna again appealed to the BIA, arguing that the IJ improperly placed the
burden on him to show that he had not firmly resettled and that the firm resettlement bar
did not apply because he entered the United States as an immigrant, not as a refugee in
flight from persecution. In the alternative, Hanna argued that the IJ erred in finding him
removable since the Michigan statute of felonious assault encompasses CIMT and non-
CIMT offenses and his specific offense is not a CIMT. Hanna subsequently filed a
separate motion to remand and terminate, arguing that his conviction had been vacated
and that his case had been set for a new trial. Hanna later withdrew this motion after the
Michigan Court of Appeals reinstated his conviction. See People v. Hanna, No. 304798,
2012 WL 833294 (Mich. Ct. App. Mar. 13, 2012).
The BIA dismissed Hanna’s appeal on September 27, 2012. The BIA adopted
and affirmed the IJ’s determination that the government presented prima facie evidence
that Hanna had an offer of firm resettlement before entering the United States. The BIA
held that, once the government met its initial burden, the burden shifted to Hanna to
establish an exception under 8 C.F.R. § 1208.15(a) or (b) and that Hanna had not
successfully rebutted the government’s firm resettlement showing. Further, the BIA
rejected Hanna’s claim that he is not subject to the firm resettlement bar because his
application for asylum is based on changed country conditions occurring after his
admission to the United States. The BIA found that Hanna’s circumstance fits the plain
language of 8 U.S.C. § 1158(b)(2)(A)(vi) and noted the absence of any language
indicating that firm resettlement must be a consequence of fleeing persecution. The BIA
also noted that an alien is considered to be firmly resettled if, prior to arrival in the
United States, he or she entered another country with, or while in that country received,
an offer of permanent resident status. See 8 C.F.R. § 1208.15. The BIA further found
that there is no temporal limitation or other indication that the resettlement must be
preceded by flight from persecution. As to Hanna’s removability, the BIA held Hanna’s
July 2003 concession of removability through counsel was binding. The BIA considered
the issue of Hanna’s removability resolved. Hanna filed a timely petition for review.
No. 12-4272 Hanna v. Holder Page 7
II.
This Court has “jurisdiction to review questions of law and constitutional claims”
arising from “‘removal orders of petitioners deemed removable for having committed
a [crime involving moral turpitude].’” Yeremin v. Holder, 707 F.3d 616, 621 (6th Cir.
2013) (alteration in original) (quoting Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.
2012)). “We review the BIA’s conclusions of law de novo.” Marku v. Ashcroft,
380 F.3d 982, 986 (6th Cir. 2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.
2004)). The determination of whether a conviction under a particular statute qualifies
as a crime involving moral turpitude is a question of law and thus is also subject to
judicial review. Yeremin, 707 F.3d at 621. “The BIA’s construction of ambiguous
statutory provisions—such as the term ‘crime involving moral turpitude’—is generally
entitled to Chevron deference.” Ruiz-Lopez, 682 F.3d at 516 (citing Kellermann v.
Holder, 592 F.3d 700, 702–03 (6th Cir. 2010)). “No deference is given, however, to the
BIA’s interpretation of a state criminal statute; that issue is reviewed de novo.” Id.
(quoting Serrato–Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009)).
This court also has jurisdiction to review the final decision of the BIA “affirming
the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). “In
considering a petition for review of a decision of the Board of Immigration Appeals, we
review the Board’s legal determinations de novo and its factual findings under the
substantial evidence standard.” Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005)
(internal citations omitted). “In reviewing the factual determinations of the Board
regarding an alien’s eligibility for asylum and withholding of deportation, this court
must apply the substantial evidence standard of review.” Klawitter v. INS, 970 F.2d 149,
151 (6th Cir. 1992); see also Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en
banc) (“A finding of ‘firm resettlement’ is a factual determination that we review under
the deferential substantial evidence standard.”). The substantial evidence standard
requires this court to uphold the Board’s findings as long as they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Klawitter, 970 F.2d at 151–52.
No. 12-4272 Hanna v. Holder Page 8
“‘To reverse under the substantial evidence standard, the evidence must be so
compelling that no reasonable factfinder could fail to find the facts were as the alien
alleged.’” Mostafa, 395 F.3d at 624 (quoting Rhodagholian v. Ashcroft, 335 F.3d 1003,
1006 (9th Cir. 2003)). Where the BIA “did not summarily affirm or adopt the IJ’s
reasoning and provided an explanation for its decision,” this Court “review[s] the BIA’s
decision as the final agency determination.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047
(6th Cir. 2007). “Where the Board adopts the IJ’s decision and supplements that
decision with its own comments, as in this case, we review both the BIA’s and the IJ’s
opinions.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011).
Hanna argues that he is not removable because his adjudication under Michigan’s
Holmes Youthful Trainee Act (“YTA”), Mich. Comp. Laws §§ 762.11–16, is neither a
“conviction” under the INA, nor a crime involving moral turpitude (“CIMT”). Hanna
acknowledges that in Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005), this court
determined that YTA adjudications are “convictions” under the INA, 8 U.S.C.
§ 1101(a)(48)(A). Hanna contends, however, that this Court should reexamine Uritsky
in light of three subsequent Supreme Court decisions: Lafler v. Cooper, 132 S. Ct. 1376,
1385 (2012); Judulang v. Holder, 132 S. Ct. 476 (2011); and Padilla v. Kentucky,
559 U.S. 356, 366–71 (2010). Hanna also contends that YTA adjudications are
analogous to determinations of juvenile delinquency under the Federal Juvenile
Delinquency Act (“FJDA”), 18 U.S.C. §§ 5031–42, and, like FJDA delinquency
determinations, should not be considered “convictions” under the INA.
Alternatively, Hanna contends that his offense is not a CIMT, that the
government has the burden to prove otherwise, and that the government cannot meet this
burden. Hanna argues that Michigan’s felonious assault statute, Mich. Comp. Laws
§ 750.82, is divisible, encompassing both CIMT and non-CIMT offenses. Relying on
Singh v. Holder, 321 F. App’x 473, 478–80 (6th Cir. 2009), Hanna argues that his
particular offense is not a CIMT and, hence, does not trigger removability under 8
U.S.C. § 1227(a)(2)(A)(i). We find that Hanna presented this claim to the BIA, and thus
No. 12-4272 Hanna v. Holder Page 9
we may review it here. See 8 U.S.C. § 1252(d)(1); Gor v. Holder, 607 F.3d 180, 185
(6th Cir. 2010).
The government responds that Hanna’s removability is established by his
concessions, through his first counsel, of the factual allegations contained in the NTA
and of removability at the July 25, 2003 hearing. According to the government, by
conceding removability, Hanna conceded that he is removable for having been convicted
of a CIMT. The government contends that this concession is a binding judicial
admission sufficient to establish Hanna’s removability and that the concession forecloses
Hanna’s challenges to removability.
Separate from the issue of his removability, Hanna argues that he is eligible for
asylum. The government responds that Hanna is ineligible for asylum under the firm
resettlement bar, 8 U.S.C. § 1158(b)(2)(A)(vi). Hanna rejoins that he qualifies for an
exception to the firm resettlement bar under 8 C.F.R. § 1208.15. The government denies
that Hanna falls within any such exception.
A.
In a removal proceeding, “petitioners are bound by the concessions of their
attorneys to the IJ unless they can show ineffective assistance of counsel or some other
egregious circumstances.” Gill v. Gonzales, 127 F. App’x 860, 862–63 (6th Cir. 2005);
see also Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) (“Petitioners are
generally bound by the conduct of their attorneys, including admissions made by them,
absent egregious circumstances.”); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA
1986) (“Absent egregious circumstances, a distinct and formal admission made before,
during, or even after a proceeding by an attorney acting in his professional capacity
binds his client as a judicial admission.”). This court has yet to clarify those egregious
circumstances sufficient to relieve an alien of his counsel’s prejudicial admissions. The
BIA, however, clarified the meaning of “egregious circumstances” in Velasquez. See
19 I. & N. Dec. at 383. Building on Velasquez, other federal courts of appeals have
developed a framework to determine egregious circumstances. See, e.g., Santiago-
No. 12-4272 Hanna v. Holder Page 10
Rodriguez v. Holder, 657 F.3d 820, 831–36 (9th Cir. 2011); Hoodho v. Holder, 558 F.3d
184, 192 (2d Cir. 2009).
As a threshold matter, to establish egregious circumstances, an alien must argue
“that the factual admissions or concessions of [removability] were untrue or incorrect.”
Velasquez, 19 I. & N. Dec. at 383; see, e.g., Mai v. Gonzales, 473 F.3d 162, 167 (5th Cir.
2006) (reversing BIA’s denial of a motion to reopen, where alien’s prior attorney had
admitted NTA’s factual allegations that alien “strongly denied”); cf. Roman v. Mukasey,
553 F.3d 184, 187 (2d Cir. 2009) (rejecting that the government must submit evidence
of an alien’s prior conviction because the alien “does not allege that the admissions were
inaccurate”); Torres-Chavez v. Holder, 567 F.3d 1096, 1102 (9th Cir. 2009) (refusing
to permit alien to withdraw attorney’s tactical decision to admit alienage because
attorney “simply conceded that [client] was an alien, a fact that [client] has never
suggested is untrue”). Further, an alien’s argument that his attorney’s concessions were
incorrect must be supported by record evidence. See, e.g., Hulse v. Holder, 480 F.
App’x 23, 26 (2d Cir. 2012) (denying petition for review of BIA decision denying
withholding of removal because admission of procuring benefit by entering into
fraudulent marriage was “not contradicted by the record evidence”); Hoodho, 558 F.3d
at 192 (denying petition for review of BIA decision because “[w]here, as here, an IJ
accepts a concession of removability from retained counsel and that concession is not
contradicted by the record evidence, the circumstances are not ‘egregious’ in any
respect”).
Where an alien has argued that his or her counsel’s admission is incorrect and
that argument is supported by the record, two types of egregious circumstances justify
relieving the alien of his or her counsel’s prejudicial admissions. The first circumstance
concerns admissions that “were the result of unreasonable professional judgment.”
Velasquez, 19 I. & N. Dec. at 383; see also Santiago-Rodriguez, 657 F.3d at 834–36
(holding that BIA erred in not permitting alien to withdraw attorney’s admission where
such admission was made without any factual basis and constituted deficient
performance); In re Morales-Bribiesca, No. A047 770 293, 2010 WL 4500889, at *2
No. 12-4272 Hanna v. Holder Page 11
(BIA Oct. 18, 2010) (“[T]he respondent’s prior attorney admitted that she conceded the
respondent’s removability [for alien smuggling] without first speaking to the respondent
or discussing the factual allegations with the respondent . . . [and] given the
egregiousness of the representation, we do not deem the attorney’s admission binding
on the respondent.” (citing Velasquez, 19 I. & N. Dec. at 382)); In re Shafiee, No. A24
107 368, 2007 WL 1168488, at *1 (BIA Mar. 2, 2007) (granting motion to reopen and
holding that attorney’s concession of removability based on alien’s “insistence on
expediting a case is no excuse for failing to research and advise a client that there is no
sound basis for the charges”).
The second circumstance in which an alien should be relieved of an admission
of counsel is if binding the alien to that admission would “produce[ ] an unjust result.”
Velasquez, 19 I. & N. Dec. at 383. An inadvertent admission would fall into this
category. See, e.g., Ali v. Reno, 829 F. Supp. 1415, 1425 (S.D.N.Y. 1993) (holding, in
habeas corpus proceeding reviewing the rescission of permanent resident status, that
alien could not withdraw the prior concessions of counsel because “there has been no
showing that counsel’s concessions regarding rescission and excludability were
inadvertent, unfair or extraordinary”), aff’d, 22 F.3d 442 (2d Cir. 1994); cf. Cortez-
Pineda v. Holder, 610 F.3d 1118, 1122 n.2 (9th Cir. 2010) (refusing to bind the
government to a mistaken factual assertion regarding the alien’s entry date). So too
would a circumstance “where the propriety of an admission or concession has been
undercut by an intervening change in law.” In re Chavez-Mendoza, No. A90 542 948,
2005 WL 649052, at, *1 n.3 (BIA Feb. 2, 2005); see, e.g., Santiago-Rodriguez, 657 F.3d
at 833 (“Binding [petitioner] to the admission that he smuggled his brother . . . even after
[an intervening change in the law] would ‘produce[ ] an unjust result,’ if [petitioner] can
make a prima facie showing that his actions would not constitute smuggling under the
clarified, correct interpretation of the smuggling statute.” (quoting Velasquez, 19 I. & N.
Dec. at 383)); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003)
(permitting alien to challenge removability despite concession because intervening
change in law meant alien was not removable).
No. 12-4272 Hanna v. Holder Page 12
Applying this framework, we relieve Hanna of his attorney’s July 25, 2003,
concession of removability. Hanna satisfies the threshold requirements for challenging
the binding effect of the prior admission: Hanna has contended and maintains the
concession of removability is incorrect because his crime did not involve moral
turpitude, and there is record evidence to support his position. Neither the charging
documents nor the record of conviction suggest that Hanna necessarily pled to facts
establishing that his offense is a CIMT. Cf. Wala v. Mukasey, 511 F.3d 102, 108 (2d Cir.
2007) (vacating BIA’s removal order because petitioner was not required to plead facts
establishing intent to commit a CIMT nor did his plea colloquy establish otherwise).
Other evidence in the record that an immigration court may consider suggests that
Hanna’s specific offense was not a CIMT. See Kellermann, 592 F.3d at 704 (noting that
if “the court finds that the statute of conviction criminalizes both conduct that does and
does not qualify as a CIMT, then the court should apply a more modified approach”
(citing In re Silva-Trevino, 24 I. & N. Dec. 687, 690 (A.G. 2008) (directing IJs to
consider any additional evidence deemed necessary to resolve accurately whether an
offense is a CIMT if the record of conviction is inconclusive))). For instance, on
remanded proceedings to determine whether to grant Hanna withholding of removal
from Iraq, the IJ made findings suggesting Hanna’s offense “fall[s] within the
apprehension-portion of the statute [that] would plainly stretch the concept of a CIMT.”
See Singh, 321 F. App’x at 480. After reviewing the record for the severity of the
offense, the IJ found that Hanna credibly testified that he was never in close proximity
of the individual and had no intention of attacking him. Further, the IJ held that Hanna’s
offense was not particularly serious and noted that it could not find Hanna was or is a
danger to the community.
Turning to the egregious circumstances under which an alien may be relieved of
a prior admission through counsel, the propriety of Hanna’s concession has been
undercut by an intervening change in law “produc[ing] an unjust result” if Hanna is
bound to the admission. See Velasquez, 19 I. & N. Dec. at 383. In Singh, the court
found that the Michigan statute under which Hanna was convicted, Mich. Comp. Laws
§ 750.82, is likely divisible. 321 F. App’x at 479–80. Under this statute,
No. 12-4272 Hanna v. Holder Page 13
a person who assaults another person with a gun, revolver, pistol, knife,
iron bar, club, brass knuckles, or other dangerous weapon without
intending to commit murder or to inflict great bodily harm less than
murder is guilty of a felony punishable by imprisonment for not more
than 4 years or a fine of not more than $2,000.00, or both.
Mich. Comp. Laws § 750.82(1). In Singh, the court analyzed this statute in detail:
The elements of this crime, as interpreted by Michigan courts, are: (1) an
assault, (2) with a dangerous weapon, and (3) with the intent to injure or
place the victim in reasonable fear or apprehension of an immediate
battery. People v. Lawton, 196 Mich. App. 341, 492 N.W.2d 810, 815
(1992). . . . The statute requires one of two unlawful intents: either an
intent to injure (i.e., an attempted battery) or an intent to place the victim
in apprehension of an immediate battery. In People v. Reeves, 458 Mich.
236, 580 N.W.2d 433, 436–37 (1998), the Michigan Supreme Court
explained that these two types of assault have different mental elements,
noting that, at early common law, only the attempted-battery variety of
assault was criminalized.
Singh, 321 F. App’x at 478. The Singh court reasoned that “[b]ecause the Michigan
statute essentially encompasses two distinct offenses—assault with intent to harm, and
assault with intent merely to cause apprehension of harm[,] we must determine whether
both constitute CIMTs.” Id. at 479. As the BIA had neither addressed whether Mich.
Comp. Laws § 750.82 is divisible nor considered the circumstances under which assault
crimes are CIMTs, the Singh court analyzed the Michigan statute for divisibility:
The apprehension variety of assault is less morally turpitudinous than the
attempted-battery variety, as it requires no intention to physically harm
another person. This is apparent from a simple example: Under the
Michigan statute, holding a baseball bat as if to strike someone with it
(with the intention of placing that person in fear of being struck by the
bat), and actually swinging the bat in a failed attempt to strike the person
both satisfy the statute, but the latter is clearly more inherently base, vile,
or depraved, and contrary to the accepted rules of morality than the
former. We can imagine a range of factual circumstances that would fall
within the apprehension-portion of the statute but would plainly stretch
the concept of a CIMT.
Id. at 479–80 (internal citations and quotation marks omitted). Because the Singh court
found Mich. Comp. Laws § 750.82 likely divisible and because the BIA had not
No. 12-4272 Hanna v. Holder Page 14
considered the distinction between offenses of assault with the intention to physically
harm another and offenses of assault with the intention to cause apprehension of harm,
the Singh court remanded the case for the BIA to determine whether “Singh’s assault
conviction under the particular Michigan statute is not a CIMT.” Id. at 480. On remand,
the BIA treated Mich. Comp. Laws § 750.82 as divisible and remanded to the IJ “to
make relevant findings of fact and enter a legal determination on the issue of whether the
respondent’s convictions for assault in violation of [the statute] . . . qualify as crimes
involving moral turpitude in the first instance that is consistent with the Sixth Circuit’s
decision described above.” In re Singh, No. A092 407 108 (BIA Oct. 19, 2009) (unpub.)
(citing Silva-Trevino, 24 I. & N. Dec. 687).
There has been “an intervening change in law” since Hanna’s attorney’s 2003
concession of removability. Chavez-Mendoza, 2005 WL 649052, at *1 n.3. We now
recognize Mich. Comp. Laws § 750.82 as divisible, and, as such, the statute
encompasses non-CIMT offenses. Binding Hanna to his 2003 admission—where there
has been an intervening change in the law as to the divisibility of his statute of
conviction, where Hanna argues that is offense is not a CIMT, and where his argument
is supported by record evidence that an immigration court may consider—would
“produce[] an unjust result.” Velasquez, 19 I. & N. Dec. at 383; see also Santiago-
Rodriguez, 657 F.3d at 833; Huerta-Guevara, 321 F.3d at 886. Accordingly, we relieve
Hanna of his attorney’s July 25, 2003, concession that he is removable, and we reverse
the BIA’s holding that this concession is binding. Because the BIA’s determination that
Hanna is removable is predicated upon this concession of removability, we reverse that
determination.
B.
Since Hanna is not bound by his attorney’s 2003 concession of removability, we
now address Hanna’s arguments that he is not removable. First, Hanna argues that he
is not removable because his YTA adjudication is not a “conviction” under 8 U.S.C.
§ 1101(a)(48)(A). This contention is unavailing. The INA defines “conviction” as
follows:
No. 12-4272 Hanna v. Holder Page 15
The term “conviction” means, with respect to an alien, a formal judgment
of guilt of the alien entered by a court or, if adjudication of guilt has been
withheld, where—
(i) a judge or jury has found the alien guilty or the alien
has entered a plea of guilty or nolo contendere or has
admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment,
penalty, or restraint on the alien’s liberty to be imposed.
8 U.S.C. § 1101(a)(48)(A). Hanna’s disposition under the YTA satisfies both
conditions.
We have already determined that YTA adjudications are convictions under the
INA. See Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (holding “the Board’s
conclusion that youthful trainee designations in Michigan represent convictions for
immigration purposes represents the kind of ‘permissible construction’ of the INA
sanctioned by Chevron”). Contrary to Hanna’s contentions, neither Padilla, 559 U.S.
at 366–71, Lafler, 132 S. Ct. at 1385, nor Judulang, 132 S. Ct. at 485 provides grounds
to reexamine the holding of Uritsky.
In Padilla, the Supreme Court held that an attorney’s failure to advise a
defendant-client regarding the immigration consequences of a guilty plea constitutes
deficient performance where the consequences of the defendant’s guilty plea could easily
be determined from reading the removal statute, his deportation was presumptively
mandatory, and his counsel’s advice was incorrect. 559 U.S. at 368–69. In Lafler, the
Court held that the petitioner was prejudiced by his counsel’s deficient performance in
advising petitioner to reject a plea offer and proceed to trial. 132 S. Ct. at 1391. The
Lafler court held the “Sixth Amendment requires effective assistance of counsel at
critical stages of a criminal proceeding,” including plea negotiations, id. at 1385, and
“[i]f a plea bargain has been offered, a defendant has the right to effective assistance of
counsel in considering whether to accept it,” id. at 1387. Neither Padilla nor Lafler
bears on whether YTA adjudications are “convictions” under the INA. Nor has Hanna
made a claim for ineffective assistance of counsel and, therefore, neither decision
informs our determination.
No. 12-4272 Hanna v. Holder Page 16
In Judulang, the Supreme Court held that the BIA’s “comparable-grounds” test
to determine eligibility for discretionary relief under 8 U.S.C. § 1182(c) (repealed 1996)
is “arbitrary and capricious” under the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A). 132 S. Ct. at 483–84. The Court’s holding in Judulang does not bear upon
the permissible interpretations of “conviction” under 8 U.S.C. § 1101(a)(48)(A). Hanna
principally relies on Judulang as an example of the Court’s setting aside a BIA decision
as “arbitrary and capricious” under the APA. The crux of Hanna’s contention is that the
BIA’s method of determining whether state youthful offender dispositions are
“convictions” under 8 U.S.C. § 1101(a)(48)(A) is arbitrary and capricious. Hanna
suggests the distinction drawn by the BIA in In re Uritsky, No. A78 652 707, 2003 WL
23216944, at *2 (BIA Oct. 6, 2003), between, on the one hand, findings of juvenile
delinquency—including adjudications of youthful offender status pursuant to N.Y. Crim.
Pro. Law § 720 and determinations of juvenile delinquency under the Federal Juvenile
Delinquency Act, 18 U.S.C. §§ 5031–5042 (1994 & Supp. II 1996) (“FJDA”)—which
are not “convictions,” and, on the other hand, proceedings akin to expungement or
deferred adjudications—including Michigan’s YTA adjudications—which are
“convictions,” is arbitrary and capricious.
Our opinion in Uritsky forecloses Hanna’s suggestion based on Judulang. In
Uritsky, applying principles of Chevron deference, see Chevron, U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), we upheld the BIA’s conclusion that
Michigan YTA adjudications are convictions, thus implicitly deciding that the BIA
conclusion was neither arbitrary nor capricious. See Uritsky, 399 F.3d at 735. Uritsky
binds us here.
C.
Focusing on his November 1996 assault, Hanna argues that because he merely
intended to place the victim in apprehension of an immediate battery, his conviction
under Mich. Comp. Laws § 750.82 was not for a CIMT and, therefore, he is not
removable. There may well be merit to Hanna’s argument. Mich. Comp. Laws § 750.82
is a divisible statute, encompassing offenses that are and are not CIMTs. Although it is
No. 12-4272 Hanna v. Holder Page 17
not dispositive, Hanna’s record of conviction does not suggest facts qualifying his
offense as a CIMT. Cf. Wala, 511 F.3d at 109 (holding BIA erred in finding petitioner
removable because petitioner, convicted under a divisible statute, did not necessarily
plead to facts qualifying his particular offense as a CIMT). In our review of the record,
we find nothing suggesting that Hanna’s November 1996 assault necessarily involved
the intent to injure as opposed to the intent to place the victim in apprehension of an
immediate battery. Our conclusion is supported by Singh, which declined to hold that
a much more egregious conviction under Mich. Comp. Laws § 750.82 was a CIMT. In
Singh, the petitioner, Gurminder Singh, was convicted under the Michigan statute for an
assault based on the following events:
Singh and an acquaintance were arguing while driving in a pickup truck
after an evening of consuming alcohol; they came to blows, and the
acquaintance fell from the moving vehicle; Singh and his cousin, who
was also in the truck, continued driving and left the acquaintance—the
vehicle’s owner—on the road. Singh was charged with kidnapping, car-
jacking, and attempted murder but pleaded guilty to felonious assault
with a dangerous weapon.
Singh, 321 F. App’x at 475–476. After finding Mich. Comp. Laws § 750.82 likely
divisible, the court remanded to the BIA to determine whether Singh’s assault conviction
is a CIMT. Hanna and Singh were convicted under the same statute. Based on these
facts, Hanna’s offense appears not only significantly less egregious than Singh’s offense
but also may well “fall within the apprehension-portion of the statute [that] would
plainly stretch the concept of a CIMT.” Singh, 321 F. App’x at 480.
We recognize, however, that given the previous exclusive focus on Hanna’s
attorney’s 2003 concession of removability, the immigration courts have yet to consider
the substantive merits of Hanna’s claim that he is not removable because his offense is
not a CIMT. Although the IJ held—when making its determination to grant Hanna
withholding of removal to Iraq—that Hanna’s offense was not particularly serious and
that Hanna was not a threat to the community, the immigration courts have yet to
consider directly whether Hanna’s underlying offense is a CIMT. The immigration
courts should have the opportunity to review the record and to determine this precise
No. 12-4272 Hanna v. Holder Page 18
issue. See Kellermann, 592 F.3d at 704 (providing a framework to determine whether
an offense under a divisible statute is a CIMT); Singh, 321 F. App’x at 480 (remanding
for BIA to determine whether felonious assault conviction under Mich. Comp. Laws
§ 750.82 is a CIMT); see also Garcia-Meza v. Mukasey, 516 F.3d 535, 537–38 (7th Cir.
2008) (remanding for reconsideration where BIA mistakenly read a bodily-injury
requirement into a state assault statute). Therefore, we remand to the BIA so that it may
consider whether Hanna’s Michigan offense is a CIMT.
III.
We now turn to the separate issue of Hanna’s eligibility for asylum. “Any
alien”—any person not a citizen or national of the United States—“who is physically
present in the United States or who arrives in the United States . . . irrespective of such
alien’s status, may apply for asylum . . . .” 8 U.S.C. § 1158(a)(1). An alien is ineligible
for asylum, however, if “the alien was firmly resettled in another country prior to
arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see also Rosenberg v. Woo,
402 U.S. 49, 56 (1971) (holding that the presence of firm resettlement constituted a
factor for consideration in asylum petitions). Immigration regulations further provide
that “[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. § 1208.15 (2000); see also Ali v. Reno, 237 F.3d 591, 595 (6th Cir. 2001)
(affirming BIA’s ruling that asylum applicant had firmly resettled in Denmark because
applicant received a Danish passport and residence permit). An alien is not considered
to be firmly resettled, however, if he or she establishes:
(a) That his or her entry into that country was a necessary consequence
of his or her flight from persecution, that he or she remained in that
country only as long as was necessary to arrange onward travel, and that
he or she did not establish significant ties in that country; or
(b) That the conditions of his or her residence in that country were so
substantially and consciously restricted by the authority of the country of
refuge that he or she was not in fact resettled. In making his or her
determination, the asylum officer or immigration judge shall consider the
No. 12-4272 Hanna v. Holder Page 19
conditions under which other residents of the country live; the type of
housing, whether permanent or temporary, made available to the refugee;
the types and extent of employment available to the refugee; and the
extent to which the refugee 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 others resident in the country.
8 C.F.R. § 1208.15(a)–(b).
In determining firm resettlement, the BIA applies “a four-step analysis, which
follows the language of the regulations at 8 C.F.R. § 1208.15 and focuses exclusively
on the existence of an offer.” In re A-G-G-, 25 I. & N. Dec. 486, 503 (BIA 2011). “In
the first step of the analysis, the DHS bears the burden of presenting prima facie
evidence of an offer of firm resettlement.” Id. at 501. “In the second step of . . . [this]
framework, the alien can rebut the DHS’s prima facie evidence of an offer of firm
resettlement by showing 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. “In the third step, the
Immigration Judge will consider the totality of the evidence presented by the parties to
determine whether an alien has rebutted the DHS’s evidence of an offer of firm
resettlement.” Id. “In the final step, if the Immigration Judge finds the alien firmly
resettled, the burden then shifts to the alien pursuant to 8 C.F.R. §§ 1208.15(a) and (b)
to establish that an exception to firm resettlement applies by a preponderance of the
evidence.” Id.
We have not expressly adopted this four-step framework to determine firm
resettlement. See Thiam v. Holder, 677 F.3d 299, 303 (6th Cir. 2012). In Thiam, we
found that since “the BIA did not follow its own framework for firm-resettlement
determinations” it “remand[ed] the case to the BIA to let it determine how to consider
the record in light of its framework.” Id. at 303. We also paranthetically noted that “[i]n
giving the BIA the first crack, of course, we are not taking a position on the extent to
which the A-G-G- framework is consistent with the law.” Id. We have held, however,
that we “must defer to the agency’s interpretation of its own regulations unless the text
is unambiguous or the agency’s interpretation is ‘plainly erroneous or inconsistent with
No. 12-4272 Hanna v. Holder Page 20
the regulation.’” Intermodel Techs, Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir. 2008)
(quoting Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 474–75 (6th Cir. 2008));
see also Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (“When an agency
interprets its own regulation, the Court, as a general rule, defers to it unless that
interpretation is ‘plainly erroneous or inconsistent with the regulation.’”) (quoting Chase
Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011))).
Turning to the arguments, Hanna first contends that, within the context of the
BIA’s framework, the government did not offer prima facie evidence that Hanna was
firmly resettled in Canada. The government counters that both Hanna and his father
testified that Hanna was granted landed immigrant status in Canada, and that such
testimony constitutes prima facie evidence of firm resettlement. Applying the burden-
shifting framework, the testimony is prima facie evidence of firm resettlement. “Prima
facie evidence of an offer of firm resettlement may already be a part of the record of
proceedings as testimony or other documentary evidence.” A-G-G-, 25 I. & N. Dec. at
502 n.17; see also Firmansjah v. Gonzales, 424 F.3d 598, 602 (7th Cir. 2005) (applying
the burden-shifting framework and finding that government satisfied initial burden by
pointing to applicant’s “statements on her asylum application and her testimony at the
hearing”). Therefore, applying its own framework, the BIA did not abuse its discretion
in adopting and affirming the IJ’s determination that the Department of Homeland
Security presented prima facie evidence that the respondent had an offer of firm
resettlement before entering the United States.
Second, substantial evidence supports the BIA’s conclusion that Hanna firmly
resettled in Canada and is therefore ineligible for asylum. We have treated the receipt
of permanent residency status in a third country as strongly indicative of firm
resettlement. See Ibrahim v. Holder, 344 F. App’x 149, 152–53 (6th Cir. 2009) (finding
firm resettlement because “[m]ost importantly, [petitioner] received a green card which
would have permitted him to remain in [the third country] so long as he remained
married”); Jomaa v. Ashcroft, 112 F. App’x 427, 429 (6th Cir. 2004) (finding firm
resettlement because “factors [including petitioner’s asylum application] noted by the
No. 12-4272 Hanna v. Holder Page 21
IJ indicate[d] that [petitioner] had an implicit offer of some type of permanent
residence”); Ali, 237 F.3d at 595 (finding firm resettlement because petitioner was
granted asylum in third country upon her arrival, and received a passport and a residency
permit); cf. Garadah v. Ashcroft, 86 F. App’x 76, 81 (6th Cir. 2004) (rejecting the IJ’s
finding of firm resettlement because the length of petitioner’s stay in third country and
temporary residency permits cannot be construed as an offer of permanent resident
status). Both Hanna and his father testified to receiving landed immigrant status upon
arriving in Canada in December 1991 through Hanna’s sister, who is a Canadian
citizen.1 Hanna and his family remained in Canada for a year and ten months before the
family came to the United States on visitor’s visas in 1993. Hanna stresses that he was
a minor when he obtained landed immigrant status in Canada and when he accompanied
his family in entering the United States. The BIA found, however, that Hanna
maintained his Canadian lawful permanent resident status after becoming an adult and
that Hanna frequently traveled between countries until he became eligible for lawful
permanent resident status in the United States in November 1998. Because Hanna
received lawful permanent residency status in Canada before receiving such status in the
United States, substantial evidence supports the IJ’s and BIA’s findings that Hanna
firmly resettled in Canada. See Xiaomei Xu v. Gonzales, 238 F. App’x 312, 313 (9th Cir.
2007) (“Substantial evidence supports the IJ and BIA’s findings that [petitioner] is
firmly resettled in Canada . . . because [petitioner] admitted that she received ‘landed
immigrant’ status in Canada approximately eight years before her most recent entry into
the United States.”).
Hanna contends, however, that he qualifies for the exception to the firm
resettlement bar under 8 C.F.R. § 1208.15(a), which clarifies that an alien is not firmly
resettled in another country if “his or her entry into that country was a necessary
consequence of his or her flight from persecution, that he or she remained in that country
only as long as was necessary to arrange onward travel, and that he or she did not
1
“Landed immigrant” status, although no longer employed in Canadian immigration law, refers
to Canadian lawful permanent resident status. See Bajwa and Minister of Public Safety and Emergency
Preparedness, [2011] F.C. 192, para 8 (Can. Que.).
No. 12-4272 Hanna v. Holder Page 22
establish significant ties in that country.” 8 C.F.R. § 1208.15(a). Hanna argues that he
remained in Canada only as long as necessary to join his parents in the United States and
that he remained in the United States in violation of law for the majority of the time from
1993 to 1998. Indeed, the decision that Hanna would accompany his family to the
United States in 1993 was made by Hanna’s father. The BIA, adopting the IJ’s
explanation, found that Hanna did not qualify for the exception. The IJ found sufficient
evidence to refute the notion that the family only intended to remain in Canada only as
long as necessary to make further travel arrangements. See 8 C.F.R. § 1208.15(a). This
evidence included findings that Hanna’s family started a business in Canada; that Hanna
and his father traveled to the United States for a wedding in 1991 and were allowed to
return to Canada; that Hanna attended middle school and church in Canada; and that
Hanna has a sister who is a Canadian citizen living in Canada. Therefore, substantial
evidence supports the finding that Hanna’s stay in Canada from 1991 through 1993, as
well as his intermittent travels to Canada through 1998, exceeded that which is
“necessary to arrange onward travel.” See 8 C.F.R. § 1208.15(a); see also Ali, 237 F.3d
at 595–96 (finding asylum applicant did not qualify for an exception since she “did not
remain as long as necessary to arrange onward travel” and “clearly established
significant ties in Denmark” (internal quotations omitted)). The BIA did not abuse its
discretion in affirming the IJ’s finding that Hanna does not qualify for an exception to
the firm resettlement bar under 8 C.F.R. § 1208.15(a).
In the alternative, Hanna argues that because his claim for asylum occurred well
after he obtained permanent resident status in Canada and in the United States, the firm
resettlement bar does not apply. Hanna obtained landed immigrant status in Canada in
November 1998, lawful permanent resident status in the United States in July 2003, and
then applied for asylum based on his fear of persecution as a Chaldean Christian in May
2010. Hanna observes that since he did not seek asylum based on his fear of persecution
as a Chaldean Christian until nearly a decade after he acquired lawful permanent resident
status in the United States, the relevant time period for the firm resettlement analysis has
been reset. Hanna contends that when the fear of persecution does not arise until after
an asylum applicant is resettled in the United States, the intervening acquisition of lawful
No. 12-4272 Hanna v. Holder Page 23
status in a third country does not trigger the firm resettlement bar. The BIA rejected this
argument, concluding that the denial of asylum is required for anyone who has firmly
resettled before arriving in the United States, regardless of when the fear of persecution
arose. The government additionally responds that the firm resettlement bar applies to
Hanna because his circumstances fit within the plain language of both 8 U.S.C.
§ 1158(b)(2)(A)(vi) and 8 C.F.R. § 1208.15. The government contends that the statute
and regulation concern an asylum applicant’s contacts with a third country “prior to”
entering the United States, not the reason the alien entered that third country. See
8 U.S.C. § 1158(b)(2)(A)(vi).
Hanna’s argument fares no better now than it did before the BIA.
Determinations of firm resettlement depend on an alien’s contacts with a third country
prior to entering the United States. The statute is unambiguous on this point and
contains no suggestion that events occurring after an alien enters the United States have
any bearing on whether the alien had previously firmly resettled in a third country. See
8 U.S.C. § 1158(b)(2)(A)(vi) (providing ineligibility for asylum if “the alien was firmly
resettled in another country prior to arriving in the United States”). This interpretation
is buoyed by Sixth Circuit case law. See Ali, 237 F.3d at 596. In Ali, petitioner was
granted refugee status by Denmark, and upon arrival in that country she received a
Danish passport and a residence permit. Id. at 595. Subsequently, petitioner allowed her
Danish passport to expire. Id. at 593. Danish authorities confiscated the passport and
informed her that she no longer had refugee status. Id. As a result, petitioner argued that
the BIA erred in finding that she had firmly resettled in Denmark. The Ali court rejected
petitioner’s argument, noting that “‘[t]he pertinent regulations specifically focus on
resettlement status prior to the alien’s entry into this country.’” Id. at 596 (alterations
in original) (quoting Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir. 1994)); see also
Tchitchui v. Holder, 657 F.3d 132, 136–37 (2d Cir. 2011) (rejecting petitioner’s
argument that the IJ and BIA erred in determining petitioner did not qualify for
§ 208.15(a) exception by considering his ties to third country extant prior to persecution
giving rise to petitioner’s asylum application). Applying the plain text of the statute and
the principle noted by the Ali court, the fact that Hanna’s claim for asylum arose after
No. 12-4272 Hanna v. Holder Page 24
acquiring lawful permanent residence in the United States does not affect whether Hanna
was firmly resettled in Canada before entering the United States. Nor do we believe that
Hanna’s contention that his Canadian permanent resident has lapsed after entering the
United States alters the conclusion that he was firmly resettled in Canada before entering
the United States. See Immigration and Refugee Protection Act of Canada, S.C. 2001,
c. 27, §§ 28, 41(b) (Can.). Since substantial evidence supports Hanna’s firm
resettlement in Canada prior to entering the United States, he is ineligible for asylum.
See 8 U.S.C. § 1158 (b)(2)(A)(vi); see also Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir.
2006) (“The United States offers asylum to refugees not to provide them with a broader
choice of safe homelands, but rather, to protect those arrivals with nowhere else to
turn.”).
IV.
For the foregoing reasons, we grant Hanna’s petition for review, reverse the
BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his attorney’s
2003 concession of removability. Because the BIA’s determination that Hanna is
removable is predicated upon this concession of removability, we reverse that
determination. We remand to the BIA to decide, consistent with the reasoning provided
above, whether Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a CIMT
and whether he is removable without giving his attorney’s 2003 concession binding
effect. Separately, we affirm the BIA’s conclusion that Hanna is ineligible for asylum.