    08-4025-ag (L); 09-3373-ag (Con)
    Si v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A094 824 671
                                                                          A094 824 672
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 30 th day of April, two thousand ten.

    PRESENT:
             ROGER J. MINER,
             GUIDO CALABRESI,
             ROBERT A. KATZMANN,
                    Circuit Judges.
    _______________________________________

    NANDA SI, NYAN THAR MIN NYO,
             Petitioners,

                        v.                                 08-4025-ag (L);
                                                           09-3373-ag (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent. *
    _______________________________________

    FOR PETITIONER:                     Lawrence T. Kass, New York, N.Y.


                 *
               Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:        Tony West, Assistant Attorney
                       General, Civil Division; Shelley R.
                       Goad, Senior Litigation Counsel;
                       Katharine E. Clark, Trial Attorney,
                       Office of Immigration Litigation,
                       United States Department of Justice,
                       Washington, DC


    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is GRANTED.

    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 removal to Burma.      In re

Nanda Si, Nyan Thar Min Nyo, Nos. A094 824 671, A094 824 672

(B.I.A. July 16, 2008), aff’g 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


                             2
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

place[] 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


                                3
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 rent 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


                                4
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 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
                                5
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.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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