Meron Kahesay v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERON ZERAY KAHESAY, No. 18-72050
Petitioner, Agency No. A209-763-746
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Meron Zeray Kahesay is a citizen of Eritrea. The immigration judge (“IJ”)
presiding over Kahesay’s removal proceedings granted her withholding of removal
from Eritrea and Ethiopia and relief under the Convention Against Torture, but
denied her application for asylum. Kahesay petitions for review of the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Immigration Appeals’ (“BIA”) decision affirming the IJ’s determination that
Kahesay is statutorily ineligible for asylum because she was firmly resettled in
Italy prior to entering the United States. See 8 U.S.C. § 1158(b)(2)(A)(vi).
Because the BIA declined to affirm the IJ’s discretionary denial of asylum, that
issue is not before us.
As an initial matter, we reject the government’s argument that we lack
jurisdiction over Kahesay’s challenge because it was not adequately exhausted
before the BIA. The BIA expressly addressed whether the IJ properly determined
that Kahesay was firmly resettled in Italy, which is sufficient for purposes of
exhaustion. Parada v. Sessions, 902 F.3d 901, 914 (9th Cir. 2018) (“It is well-
established that we may review any issue addressed on the merits by the BIA,
regardless of whether the petitioner raised it before the agency.”). We therefore
have jurisdiction pursuant to 8 U.S.C. § 1252(a) to address that issue.
We conclude that the BIA’s holding that Kahesay was firmly resettled in
Italy is not supported by substantial evidence. See Maharaj v. Gonzales, 450 F.3d
961, 967 (9th Cir. 2006) (en banc). The Department of Homeland Security
(“DHS”) bore the burden of demonstrating that Kahesay was firmly resettled in
another country before entering the United States. See Arrey v. Barr, 916 F.3d
1149, 1159 (9th Cir. 2019); see also 8 C.F.R. § 1208.15. The only evidence DHS
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submitted on that point was a three-page investigation report noting that before
entering the United States, Kahesay had flown from Italy to Mexico “utilizing an
Italian travel document . . . with refugee status in Italy.” In concluding that
Kahesay was firmly resettled in Italy, it appears both the IJ and BIA misread her
testimony as establishing that her refugee status was permanent, when she testified
without contradiction before the IJ that her travel and work permits were subject to
renewal. She testified that she could “renew [her refugee status] every two years.”
DHS provided no evidence that Kahesay’s status in Italy was permanent. In sum,
DHS failed to carry its prima facie burden, and the BIA’s determination that
Kahesay was firmly resettled is not supported by substantial evidence.
In light of our conclusion, we need not reach Kahesay’s alternative argument
that her treatment in Italy amounted to persecution and precluded a finding of firm
resettlement. See Arrey, 916 F.3d at 1160 (quoting Yang v. INS, 79 F.3d 932, 939
(9th Cir. 1996)) (“firmly resettled aliens are by definition no longer subject to
persecution”).
GRANTED and REMANDED.
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