Salazar v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-2486

ALDO SALAZAR, CARMEN RODRIGUEZ SALAZAR,

Petitioners,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.

Robert M. Warren for petitioners.

Thankful T. Vanderstar, Office of Immigration Litigation, with
whom Linda S. Wernery, Senior Litigation Counsel, Office of
Immigration Litigation, and Peter D. Keisler, Assistant Attorney
General, Civil Division, were on brief for respondent.

February 26, 2004
 LYNCH, Circuit Judge. Aldo Salazar, a native and citizen

of Peru, petitions for review of the Board of Immigration Appeals's

denial of his application for asylum and withholding of removal.

Carmen Rodriguez Salazar, his wife and a native and citizen of

Venezuela, is a derivative asylum applicant. Both Salazars were

admitted to the United States as visitors for pleasure and

overstayed. The Salazars are apparently hardworking members of

their community; they have many supporters and present a

sympathetic case. Whether that outweighs their illegal presence

was something the immigration authorities might have considered in

the exercise of their prosecutorial discretion as to whether to

seek deportation. A court, restricted in its review of the

decisions made by immigration authorities, has no such discretion.

The agency's determination that Salazar was "firmly

resettled" in Venezuela, and so ineligible for asylum in the United

States, is supported by substantial evidence. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992); 8 C.F.R. §§ 208.13(c)(2)(1)(B),

208.15. We must deny the petition for review because firm

resettlement in a third country is a mandatory bar to the granting

of asylum. This marks our first occasion to address the firm

resettlement doctrine.

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 I.

The Immigration Judge ("IJ") found Salazar's testimony

credible. We describe the historical facts as Salazar recounted

them at his hearing and in his application for asylum.

Salazar asserts that he would be in danger if returned to

Peru because of the terrorist group Sendero Luminoso, or Shining

Path, which has operated in Peru for over twenty years. The

Shining Path opposes landowners and seeks to destroy farm ownership

arrangements. Its members, Salazar explained, "do not want [those

who] have money to exist."

Salazar's father owned a 103 acre farm in San José, Peru

on which the family raised cattle for milking. In 1984, the

Shining Path destroyed the nearest neighboring farm and damaged the

Salazar farm. In response to that attack and to the Shining Path's

announcement of its intent to "destroy the rest of the people that

continue having properties" and "redistribute the wealth to

everybody," Salazar's father "sold a great piece of the land" and

sold many of the animals. He also resigned in 1984 as a rural

judge, a position that he had held for a few years. No one else in

the Salazar family held any political or official positions. In

1986, the Shining Path stole many of the Salazars's remaining

horses, cows, and sheep, as well as most of their food supply.

From that point, the Shining Path constantly harassed the Salazar

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family -- coming to the farm and disturbing them at all different

hours and distributing their land to others.

As a result of the threat from the Shining Path, the

Salazar family began to abandon the farm in 1989. Gilmer Salazar,

petitioner's older brother, did not leave the farm and was killed

when the Shining Path dynamited the Salazar house in 1990. The

rest of the family scattered throughout Peru, and petitioner's

parents moved to Trujillo, where they constantly changed their

names and tried not to go out in public.

Salazar himself traveled around Peru trying to stay far

away from danger. He first went to Lima for one year, then

traveled in the south of Peru for half a year because of terrorism

in Lima, and then moved to the west of Peru. He did not want to

leave Peru and remained there until July or August 1992 when he

decided that he had to leave because of the danger. He left Peru,

entered Ecuador, and stayed for a very brief time. He then moved

on to Colombia, where he stayed for two months and worked to have

money to continue with his trip. In October or November 1992, he

traveled to Venezuela and entered the country illegally. He lived

in Venezuela for at least fourteen months, worked there, and rented

an apartment.

A Venezuelan passport was issued to Salazar on November

29, 1993. Salazar explained that he needed to be a Venezuelan

resident to obtain a visa to the United States, and that "I met a

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man in Venezuela that told me that he could arrange [to have a

resident stamp placed on my passport] for me if I paid him

something." Salazar paid, a resident stamp was placed in his

passport, and in December 1993 he applied for and received a visa

from the United States Embassy to enter this country as a visitor

for pleasure. Salazar says that he had always planned to come to

the United States. He did not make any effort to obtain a visa to

come to the United States from Peru. He met Carmen, his now wife,

in Maracaibo while on line at the United States Embassy to request

the visa, and they traveled together to the United States in

February 1994. They were admitted as visitors for pleasure and

authorized to stay until August 1994. Salazar never sought asylum

in Ecuador, Colombia, or Venezuela.

Carmen and Aldo Salazar were married in the United

States. Salazar's asylum application is dated April 13, 1994.

Salazar and his wife left the United States twice after the

submission of the application. They traveled to Venezuela on

August 11, 1994 and returned to the United States a day later.

They again traveled to Venezuela on February 10, 1995 and returned

to the United States on February 26, 1995. On both trips, Salazar

was readmitted to Venezuela as a Venezuelan resident. He testified

that he showed the authorities his passport and they admitted him

"with the residence that [he has]."

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 In 1996, the Shining Path killed Salazar's uncle, Antonio

Salazar Contreras, who was a farmer and who lived near what used to

be the Salazar family farm. The evidence that Shining Path was

responsible for the murder, Salazar explained, was "the way he died

because he was tortured" and strangled and "[t]hey left some

papers, warnings, saying that this is the way the people are going

to die if they don't let, leave their properties." Salazar said

that his uncle was killed "[b]ecause he was there and he was still

maintaining his property." Salazar believes that he would be in

danger in Peru "because my family, my brothers and myself who were

declared enemies of that Shining Path and we were threatened if we

return." The threats were made on a "few occasions when we were

there. Because we were in farm, we tried to defend ourselves and

because of that, they put us in the black list." Salazar believes

that the Shining Path declared his family to be enemies "because we

. . . did not want to leave our property and I think it was more

because we always tried for the police to protect us." Salazar

said he had only one instance of personal contact with members of

Shining Path. He testified, "I was walking . . . and I saw armed

men and they asked me some things and that was it."

Salazar's parents and three of his siblings still reside

in Peru. His other four surviving siblings live in the United

States. According to a year 2000 country condition report, the

Shining Path is still operating in Peru and is still responsible

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for numerous murders. The threat from the Shining Path has

declined, though, and Salazar admitted that he was aware that

Peru's government had captured a number of Shining Path leaders.

On August 31, 1999, the INS issued Aldo and Carmen

Salazar notices to appear, charging them as deportable for having

remained in the United States longer than authorized. The Salazars

conceded deportability and sought asylum and withholding of

deportation. The IJ found that Salazar has the status of a

resident in Venezuela and so was "firmly resettled" under 8 C.F.R.

208.15 and ineligible for asylum. The IJ also held that Salazar

had otherwise failed to establish asylum eligibility. The IJ found

that although Salazar was at one time a member of a landowning

family targeted by the Shining Path, he had ceased to be within

that targeted social group when his family sold their property,

moved, and safely resided elsewhere in Peru. Salazar's fear of

persecution, the IJ determined, was not well-founded, and there was

no basis for concluding that he would face a risk of harm in Peru

on account of any asylum-eligible category. The IJ denied

Salazar's application and granted him voluntary departure. The

Board of Immigration Appeals ("BIA") affirmed without opinion, and

Salazar filed this petition for review.

II.

The Attorney General has discretion to grant asylum to an

alien applicant "if the Attorney General determines that such alien

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is a refugee within the meaning of [8 U.S.C.] section

1101(a)(42)(A)." 8 U.S.C. § 1158(b)(1). An asylum applicant bears

the burden of establishing that he fits within the statutory

definition of refugee, 8 C.F.R. § 208.13(a), a burden that involves

proving "persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion," 8 U.S.C. 1101(a)(42)(A); see

8 C.F.R. § 208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.

2003).

Under 8 C.F.R. § 208.13(c)(2)(1)(B), which applies to

asylum applications filed before April 1, 1997, asylum may not be

granted to any applicant who "[h]as been firmly resettled within

the meaning of [8 C.F.R.] § 208.15." Section 208.15 states:

An 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 unless 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 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

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 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.

In 1996, Congress codified the rule that a finding of firm

resettlement operates as a mandatory bar1 to the grant of asylum.

8 U.S.C. § 1158(b)(2)(A)(vi); see 8 C.F.R. § 208.13(c)(1)

(explaining that asylum applications filed on or after April 1,

1997, the effective date of the 1996 codification, are subject to

the statutory firm resettlement rule). That codification is not

retroactive, see Pub. L. No. 104-208, § 604(c), 110 Stat. 3009

(1996), so it does not apply to petitioner.2 The applicable firm

resettlement rule is the one contained in 8 C.F.R. §

208.13(c)(2)(1)(B), and that regulation is entitled to deference.

INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Chevron

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844

(1984); Costa v. INS, 233 F.3d 31, 34 (1st Cir. 2000).

1
It was not always true that firm resettlement was a
mandatory bar to asylum. See Abdille v. Ashcroft, 242 F.3d 477,
483 n.4 (3d Cir. 2001).
2
Salazar filed his asylum application on April 13, 1994.
The IJ determined that Salazar abandoned that application by
leaving the United States and traveling to Venezuela after filing
it. The IJ decided that it was best to continue the proceedings
despite the abandonment and allowed the date of the asylum
application to be amended to February 26, 1995, the date of
Salazar's return to the United States after his second trip to
Venezuela. The difference in the two application dates is
immaterial to our analysis.

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 A finding of "firm resettlement" is reviewed under the

deferential substantial evidence standard. Mussie v. INS, 172 F.3d

329, 331 (4th Cir. 1999) (applying the substantial evidence

standard to the BIA's finding of firm resettlement); cf. Elias-

Zacarias, 502 U.S. at 481. The BIA's finding of firm resettlement

must be upheld unless the evidence not only supports a contrary

conclusion, but compels it. Elias-Zacarias, 502 U.S. at 481 & n.1;

Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).

There is a two part analysis under 8 C.F.R. § 208.15.

First, there is the question whether the alien is "firmly

resettled" within the meaning of the regulation. See Mussie, 172

F.3d at 331-32. The government bears some initial burden of

showing firm resettlement. See id. at 331-32. The case law treats

this showing made by the government as creating a rebuttable

presumption,3 see id.; Cheo v. INS, 162 F.3d 1227, 1229-30 (9th

Cir. 1998); Abdalla v. INS, 43 F.3d 1397, 1399 (10th Cir. 1994),

which the alien can overcome on showing otherwise "by a

preponderance of the evidence." 8 C.F.R. § 208.13(c)(2)(ii).

Second, if the alien fails to rebut the presumption, there is the

question whether the alien can show that he falls within either

3
Some case law, but not the regulations, calls the initial
showing of firm resettlement by the government a "prima facie case"
that shifts the burden to the applicant. See Abdille, 242 F.3d at
486. Whether or not the prima facie case analogy is correct, there
is burden shifting, and that shifting sensibly reflects the
difficulties of obtaining proof faced by the government.

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exception (a) or exception (b). See Mussie, 172 F.3d at 332. The

alien bears the burden on both exceptions. 8 C.F.R. § 208.15; see

Mussie, 172 F.3d at 332.

We have not previously addressed the "firm resettlement"

bar in § 208.15. It seems clear that the government may make its

initial showing of firm resettlement by producing evidence that the

resettling country's government formally and affirmatively offered

the alien permanent resettlement, a term which includes -- but is

potentially more expansive than -- offers of citizenship or

permanent residence.4 In the instant case, the government readily

met its burden by pointing to a facially valid government offer of

permanent residence: the Venezuelan residency stamp on the Salazar

passports, as well as uncontroverted evidence that the Venezuelan

government twice honored that stamp when the Salazars made return

trips to Venezuela.

Since the government satisfied the requisite initial

showing, the burden shifted to the Salazars to rebut the

4
There is a disagreement among courts concerning the
distinct issue as to whether the government may make its initial
showing exclusively by direct or circumstantial evidence of the
government's offer of permanent settlement, or whether it may do so
through other "non-offer-based elements," such as the alien's
establishment of significant familial or business ties or the
prolonged duration of the alien's residence in the resettlement
country without any government efforts to deport him. See, e.g.,
Abdille v. Ashcroft, 242 F.3d 477, 487 (3d Cir. 2001). As the IJ
did not rely upon "non-offer-based elements" in holding that the
government satisfied its initial showing, we reserve that issue for
a future decision.

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presumption created by the government's initial presentation of

firm resettlement and/or to accept the conclusion of firm

resettlement but show he was within either of the two exceptions to

the "firm resettlement" bar set forth in § 208.15.

The IJ considered Salazar's testimony that he paid an

unidentified person to obtain the resident stamp on his behalf.

Even accepting the testimony, Salazar produced no evidence that,

beyond mere payment for the stamp, the stamp was not valid or that

any irregularities would result in the eventual invalidation of the

stamp by the Venezuelan government. Thus, there was insufficient

evidence to persuade -- let alone compel -- the IJ to discount the

facial validity of the resident stamp.

Similarly, the Salazars adduced no evidence of any "non-

offer-based elements" which would compel a finding by the IJ that

they had rebutted the government's prima facie showing. The

evidence shows that Salazar lived in Venezuela for more than a

year, obtained employment, and rented an apartment. Further, Ms.

Salazar's Venezuelan citizenship suggests that Salazar established

enduring familial ties in Venezuela, an inference that is further

confirmed by the Salazars' two return trips to Venezuela. Given

this record, it simply cannot be said that the IJ's decision that

there was firm resettlement was unsupported by "substantial

evidence."

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 Next is the question whether petitioner has shown he is

within either of the two exceptions, parts (a) and (b) of § 208.15.

See Mussie, 172 F.3d at 332. To fit within the second exception,

an alien must show that the conditions of his residence in the

third country "were so substantially and consciously restricted by

the authority of [that] country" that he was not in fact resettled.

8 C.F.R. § 208.15(b). There is no basis for concluding -- and

petitioner's counsel does not argue otherwise -- that Salazar fits

within this exception.

This leaves only the exception in (a). To fit within the

first exception, an alien must satisfy each of three prongs. The

alien must show (1) that his entry into the third country was a

"necessary consequence of his . . . flight from persecution," (2)

that he remained there "only as long as was necessary to arrange

onward travel, and" (3) that he "did not establish significant ties

in that country." Id. § 208.15(a) (emphasis added). Salazar

plainly failed to provide any evidence to meet the second prong,

that he remained in Venezuela "only as long as was necessary to

arrange onward travel." Under the regulation, § 208.15, it was

Salazar's burden to establish this point. He did not. Salazar did

say at the hearing that he stayed in Colombia for only two months

and worked there in order to be able to continue with his trip.

But he did not offer a similar explanation for the fourteen months

he spent in Venezuela. As a result, the IJ's holding that Salazar

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was firmly resettled in Venezuela, affirmed by the BIA, must stand.

Since firm resettlement is a bar to asylum, we need not address

whether Salazar met the burden to prove past persecution in Peru

pursuant to § 208.13.

III.

Although firm resettlement is, by regulation, a bar to

the grant of asylum, we have found no statute or regulation that

bars the relief of withholding of deportation on the basis of firm

resettlement. While this omission may strike some as odd, the firm

resettlement finding does have practical implications here. We

consider the withholding of deportation claim independently, as

have other circuits. See Cheo, 162 F.3d at 1229-30; Vang v. INS,

146 F.3d 1114, 1116-17 (9th Cir. 1997); Abdalla, 43 F.3d at 1399.

There are two salient distinctions between asylum and

withholding of deportation. First, the alien must meet a higher

standard to show withholding of deportation. He must show that,

upon deportation, he is more likely than not to face persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion. INS v. Stevic, 467 U.S. 407,

424 (1984). If a court upholds a denial of asylum, the application

for withholding of removal necessarily fails. Second, even if the

criteria for asylum are met, the decision as to relief is

discretionary. But if the criteria for withholding of deportation

are met, the grant of relief is mandatory. Aguirre-Aguirre, 526

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U.S. at 419-20. We engage in substantial evidence review for

withholding of deportation, the same standard as for asylum. We

have not in this case addressed the propriety of the denial of

asylum based on grounds other than firm resettlement and do not do

so now.

Here, the IJ ordered deportation to Peru, but also

permitted voluntary departure. The finding of firm resettlement

more than suggests that the Salazars may voluntarily depart to

Venezuela, whose residence permit their passports bear. Salazar

has not shown that he cannot return to Venezuela, much less that he

would more likely than not face persecution in Venezuela on one of

the five grounds. Nor has he shown that Venezuela would forceably

repatriate him to Peru. As such, the finding of firm resettlement

provided sufficient evidence to support the denial of withholding

of removal.

IV.

Petitioner argues that it was improper for the BIA to

adopt the IJ's decision without rendering its own opinion. The

argument is frivolous. It is well established that "if the Board's

view is that the IJ 'got it right,' the law does not demand that

the Board go through the idle motions of dressing the IJ's findings

in its own prose." Chen v. INS, 87 F.3d 5, 7-8 (1st Cir. 1996)

(noting this court's agreement with eight other circuits that,

"having given individualized consideration to a particular case,

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[the BIA] may simply state that it affirms the IJ's decision for

the reasons set forth in that decision").

V.

The denial of petitioner's application for asylum and

withholding of removal is affirmed. The order granting voluntary

departure stands. So ordered.

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