Monday, June 12, 2006
Ninth Circuit Says Four Year Stay in Canada Does Not Bar Asylum
By a MetNews Staff Writer
Fijian asylum petitioners who lived for four years in Canada, where they had a child, worked, received health benefits, and had a refugee application pending before leaving for the United States are not necessarily barred from receiving asylum in this country, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court, sitting en banc, said the petitioners had not necessarily firmly resettled in Canada, which would have made them ineligible for asylum. The judges reversed a contrary ruling of the Board of Immigration Appeals and sent the case back to the immigration judge.
Judge Pamela Ann Rymer wrote the majority opinion, which was joined by Chief Judge Mary M. Schroeder and Judges Harry Pregerson, Andrew J. Kleinfeld, Sidney R. Thomas, Susan P. Graber, William A. Fletcher, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Richard R. Clifton, and Jay S. Bybee.
Judges Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and Consuelo M. Callahan concurred in the remand on other grounds, but dissented with respect to the court’s holding.
Vinodh and Sunita Maharaj are Fijian citizens of Indo-Fijian ethnicity.
There was testimony that in 1987, Vinodh Maharaj, a bus driver, was told by his boss to aid the Coalition Labor Party by bussing Indo-Fijian voters to the polls during a national election. The bus displayed CLP placards, posters and flags.
After the CLP party won the elections, native Fijians began threatening the Maharajs. Vinodh Maharaj believed that they blamed him, in part, for the CLP victory.
After the army, consisting mostly of native Fijians, overthrew the CLP government, soldiers began physically attacking the Maharajs, according to the testimony. They both had bones broken, Sunita was raped, and their rented room was burned down. They left for Canada with their two children later that year.
They lived in Canada for four years and had a child there. Both of them worked, the children attended public school, and the whole family received health benefits. They also applied to the Canadian government for refugee status.
In 1991, while their Canadian refugee application remained pending, the family entered the United States as visitors. After overstaying their visit, they were charged by the Department of Homeland Security in 1996 with being deportable, and they applied for asylum.
Under U.S. immigration laws, an alien is ineligible for asylum if, after leaving his home country, he becomes “firmly settled” in another country before entering the United States. An alien is considered “firmly resettled” if he “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.”
Rymer, writing for the court, explained that the court was sitting en banc to decide afresh an issue which has divided other Circuit Courts of Appeals, namely, “what evidence the Department of Homeland Security (DHS) must produce in order to meet its initial burden of showing that the mandatory bar [to asylum] applies, such that the burden shifts to the alien to show that he was not firmly resettled.”
Rymer, agreeing with the First, Third, Seventh, Eighth and Tenth Circuits, said:
“[P]lainly [the regulation] requires DHS to make a threshold showing that the alien had an offer of some type of official status permitting him to reside in the third country indefinitely.”
If no direct evidence of an official offer is available, Rymer said the showing can be made “by circumstantial evidence of sufficient force to indicate that the third country officially sanctions the alien’s indefinite presence.”
Rymer held that the record was not sufficiently established to allow the immigration judge to conclude that “under Canadian law the type of work permit that Maharaj had, or the progress of his application for refugee status, or the benefits he received, manifested some type of entitlement to stay indefinitely.”
In his dissenting opinion joined by Rawlinson and Callahan, O’Scannlain wrote:
“Dissatisfied with life in Canada—rather than with life in Fiji—the Maharajs decided to move to the United States. What a blatant abuse of the refugee and asylum system!”
He said, “This case is a perfect example of the difficulty DHS will face in future asylum proceedings: During their hearing, the Maharajs admitted to living a perfectly happy life in Canada yet . . . [i]f the evidence shows that they did not receive an offer [to stay], any other evidence—even if patently and obviously probative—is automatically disregarded. Simply, the majority’s construct will hamstring DHS to an intolerable and unreasonable degree in future asylum proceedings.”
The case is Maharaj v. Gonzales, 03-71066.
Copyright 2006, Metropolitan News Company