Nanda Si v. Holder

SUMMARY ORDER 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 *128 removal to Burma. In re Nanda Si, Nyan Thar Min Nyo, Nos. A094 824 671, A094 824 672 (B.I.A. July 16, 2008), affg 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 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 placet ] 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 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 l'ent 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 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 *129 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 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.