KAHESAY v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-03-17No. No. 18-72050

Summary · law.co

Holding. The petition was granted and the case remanded because the Board of Immigration Appeals' decision that Kahesay was firmly resettled in Italy was not supported by substantial evidence; the government failed to prove her refugee status in Italy was permanent rather than subject to renewal.

Meron Zeray Kahesay, an Eritrean citizen, sought asylum in the United States but was deemed ineligible because an immigration judge and the Board of Immigration Appeals found she was firmly resettled in Italy before arriving. The court reviewed whether this firm resettlement determination had adequate evidentiary support. The Department of Homeland Security's only evidence was a brief investigative report showing Kahesay had traveled from Italy using an Italian refugee travel document, but the court found this insufficient to establish firm resettlement.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether firm resettlement in a third country bars asylum eligibility
What evidentiary standard applies to demonstrate firm resettlement
Whether temporary renewable refugee status constitutes firm resettlement
Sufficiency of travel document evidence to prove permanent resettlement

Procedural posture

Kahesay petitioned for review of the Board of Immigration Appeals' affirmance of the immigration judge's asylum denial on firm resettlement grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM *

Meron Zeray Kahesay is a citizen of Eritrea. The immigration judge (“IJ”) presiding over Kahesays 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 Immigration Appeals’ (“BIA”) decision affirming the IJs 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 IJs discretionary denial of asylum, that issue is not before us.

As an initial matter, we reject the governments argument that we lack jurisdiction over Kahesays 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 BIAs 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 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 Kahesays status in Italy was permanent. In sum, DHS failed to carry its prima facie burden, and the BIAs determination that Kahesay was firmly resettled is not supported by substantial evidence.

In light of our conclusion, we need not reach Kahesays 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.