                       UNITED STATES COURT OF APPEALS

                              FOR THE TENTH CIRCUIT



 GENET GEBREGZIABHER DESTA;
 TEKIE GIRMAY MELLES; FITSUM
 MELLES,

            Petitioners,

   v.                                                        No. 01-9530

 JOHN D. ASHCROFT, Attorney General,

            Respondent.



                                         ORDER
                                    Filed June 2, 2003


Before TACHA, Chief Judge, McKAY, and HENRY, Circuit Judges.


        Respondent’s motion for publication of the court’s decision of April 11, 2003 is

granted. A copy of the opinion is attached.



                                          Entered for the Court
                                          PATRICK FISHER, Clerk of Court

                                          by:
                                             Deputy Clerk
                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                      PUBLISH
                                                                           APRIL 11 2003
                    UNITED STATES COURT OF APPEALS
                                                                         PATRICK FISHER
                                                                                 Clerk
                                  TENTH CIRCUIT



 GENET GEBREGZIABHER DESTA;
 TEKIE GIRMAY MELLES; FITSUM
 MELLES,

              Petitioners,

       v.                                                  No. 01-9530

 JOHN D. ASHCROFT, Attorney General,

              Respondent.


            PETITION FOR REVIEW FROM THE DEPARTMENT OF
               IMMIGRATION & NATURALIZATION SERVICE
                       (Nos. A70 627 942; A70 627 943;
                                A70 627 944)


Kenneth H. Stern (Todd Irwin, with him on the briefs), Stern & Elkind, Denver,
Colorado, appearing for Petitioners.

Julia K. Doig, Senior Litigation Counsel (David M. McConnell, Deputy Director, with
her on the brief), Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, DC, appearing for Respondent.


Before TACHA, Chief Circuit Judge, McKAY, and HENRY, Circuit Judges.


TACHA, Chief Circuit Judge.
                                       I. Background

       The Immigration Judge (“IJ”) denied petitioners asylum but withheld their

deportation to Ethiopia. The Board of Immigration Appeals (“BIA”) later designated

Canada as the alternate country of deportation in order to correct the IJ’s failure to

designate an alternate country. Petitioners contend on appeal that they are entitled to

asylum. In the alternative, they assert that, even if they were properly denied asylum, the

BIA abused its discretion and denied them due process when it designated Canada as the

alternate country of deportation. We exercise jurisdiction pursuant to 8 U.S.C. § 1105a1

and deny the petition for review.




       1
         Before 1996, we had jurisdiction to review final deportation orders under 8
U.S.C. § 1105a. In 1996, however, this provision was repealed by the Illegal Immigration
Reform & Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208, 110 Stat.
3009. Although Section 1105a was repealed by IIRIRA, it remains substantially in effect
in those cases subject to IIRIRA’s transitional rules. Because the INS commenced
deportation proceedings against petitioners before April 1, 1997, the effective date of
IIRIRA, and because the agency’s final deportation order was entered after October 31,
1996, this case is governed by the pre-IIRIRA rules as amended by the transitional rules.
Woldemeskel v. INS, 257 F.3d 1185, 1187 n.1 (10th Cir. 2001).

                                             -2-
                                       II. Discussion

A.     Governing Law2

       Petitioners do not contest the fact that remaining in the United States longer than

permitted rendered them deportable. A deportable alien, however, may challenge

deportation to a particular country and may seek asylum, which precludes deportation to

any country. See 8 U.S.C. § 1158 (1994). When asylum is denied but deportation to one

country is withheld, the Immigration and Naturalization Service (“INS”) may deport the

alien to another country. 8 U.S.C. § 1253(a), (h) (1994). The INS may also grant

voluntary departure, allowing the alien to depart to the alien’s country of choice within a

prescribed time. 8 U.S.C. § 1254(e) (1994).

       As for asylum, “the alien must prove that he or she is statutorily eligible for asylum

by establishing that he or she is a refugee.” Kapcia v. INS, 944 F.2d 702, 706 (10th Cir.

1991). Establishing refugee status requires proof of “either past ‘persecution or a well-

founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.’” Id. (quoting 8 U.S.C. § 1101(a)(42)). An

alien is not, however, entitled to asylum based on conditions in the alien’s country of

origin if the alien was firmly resettled in another country before arriving in the United



       2
        IIRIRA repealed and reorganized many of the provisions of the United States
Code relevant to this case. Because prior law remains in effect for cases governed by
IIRIRA’s transitional rules, we cite where appropriate to the sections in effect prior to the
amendments.

                                             -3-
States and there is no ground for granting asylum from the second country. 8 C.F.R. §

207.1(b), (c).

       Petitioners’ status as refugees is not at issue in this case. Accordingly, on the

asylum issue we need address only the question of firm resettlement. The agency’s

discretion is broad in this area; our review considers only “whether the discretion was

exercised and, if so, whether it was exercised in a non-arbitrary and non-capricious

manner.” Kapcia, 944 F.2d at 708 (internal quotation marks omitted). For the reasons set

forth below, we deny the petitions for review.

       B.        Factual and Procedural Background

       Mr. Melles and Ms. Desta are Ethiopian citizens of Tigrean ethnicity. After

suffering persecution by both the Mengistu government and the Tigrean People’s

Liberation Front (TPLF), they separately fled Ethiopia into the Sudan, where they met and

married. Mr. Melles applied for asylum in both Canada and the United States. Ms. Desta

applied only in the United States. When Canada offered them landed immigrant status,

they accepted, although they contend that they always intended to come to the United

States, where Ms. Desta’s sister and her family live. Mr. Melles and Ms. Desta remained

in Canada for 18 months, during which time their son, Fitsum Melles, was born. They

visited friends in Seattle, Washington, from July 6-10, 1993, and returned to Canada. On

August 17, 1993, they entered the United States and stayed.

       The INS initiated deportation proceedings in August 1995. At an initial hearing


                                             -4-
before the immigration judge (“IJ”) on January 3, 1996, petitioners conceded

deportability but sought asylum. In the alternative, they requested withholding of

deportation to Ethiopia and voluntary departure. They elected to “stand mute” rather than

provide an alternative to Ethiopia as the country of deportation.

       After a second hearing – at which Mr. Melles, Ms. Desta, and other witnesses

testified – the IJ granted petitioners’ request for withholding of deportation. Although the

IJ expressed agreement with the INS counsel that what the court was doing was simply

“withholding the deportation to Ethiopia,” petitioners’ attorney did not request an

alternate country of deportation, and the IJ failed to designate one.

       During the second hearing, petitioners’ counsel also addressed whether their 18

month stay in Canada precluded a grant of asylum. Under the “firm resettlement” rule,

persons who may otherwise be granted asylum because of conditions in their country of

origin are ineligible if they have firmly resettled in a third country where conditions

would not justify asylum from that third country. Denial of asylum is mandatory when

the alien has been firmly resettled. 8 C.F.R. § 208.13(c)(2)(i)(B). In his oral ruling, the IJ

concluded that petitioners had been firmly resettled in Canada and, accordingly, denied

their applications for asylum.

       Petitioners appealed the denial of asylum to the BIA, challenging the validity of

the firm resettlement rule and arguing that they had not been firmly resettled. They also

alleged that Mr. Melles was threatened in Canada by members of an initially nonpolitical


                                             -5-
Tigrean group, which had subsequently splintered over differences in opinion about the

TPLF. The BIA affirmed the IJ’s denial of asylum. The BIA also noted that the IJ had

erred in failing to designate an alternate country of deportation and that petitioners had

declined the opportunity to designate one. The BIA ordered that in the event petitioners

failed to depart voluntarily, they would be deported to Canada.

       On August 9, 2001, petitioners timely filed a petition with this court seeking

judicial review of the BIA’s decision. Six days later, they filed with the BIA a motion to

reopen or reconsider. Their motion asserted resettlement in the United States and

proffered evidence that Mr. Melles and Ms. Desta no longer had the right to live in

Canada, although their son is a Canadian citizen by birth. In addition, the motion

contended that the BIA’s designation of Canada as an alternate country of deportation

improperly overturned the IJ’s unchallenged decision to grant withholding of deportation

to Ethiopia. The BIA denied the motion, noting that even while petitioners challenged the

BIA’s designation of Canada as violative of due process, they did not seek to designate an

alternate country of deportation.3 The BIA specifically affirmed the IJ’s grant of


       3
           Specifically, the BIA stated:

       As we explained in our previous decision, no purpose would be served by
       remanding the record for further proceedings on the place of deportation. The
       respondents could have designated the place of deportation themselves when they
       were in proceedings before the Immigration Judge. With assistance of counsel,
       they declined an opportunity to designate the place of deportation. Moreover, they
       are not seeking to exercise that right now either. They are asking for an
       evidentiary hearing on whether Canada is an appropriate place for deportation, but

                                             -6-
withholding of deportation to Ethiopia.

       C.      Jurisdictional Limits on Scope of Review

       Before reaching the merits of petitioners’ appeal, we must address a jurisdictional

matter. Petitioners filed the present petition for review of the BIA’s original decision but

did not separately seek our review of the BIA’s denial of their motion to reopen or

reconsider, which they filed with the BIA shortly after they filed their notice of appeal.

Relying on Stone v. INS, 514 U.S. 386 (1995), the INS contends that we lack jurisdiction

to review matters raised in petitioners’ motion to reopen or reconsider, even if those

matters were also raised in their petition to review the original BIA decision. In our view,

this contention has no merit. Stone precludes us from reviewing the merits of petitioners’

motion for reconsideration, but it does not preclude review of any issue properly raised in

the original petition.

       In Stone, as in this case, the petitioner obtained a ruling from the BIA and then

filed a motion requesting that the BIA reconsider its ruling. Id. at 389. Unlike here,

however, the petitioner in Stone did not promptly seek judicial review of the BIA’s

original ruling. Id. Rather, the petitioner filed his petition for review only after the BIA



       they have not asked for a different country to be designated in its place, which they
       could have done. We would have granted such a request unless the respondents’
       designation had violated the limitation set forth in Section 241(b)(2)(A) of the Act,
       8 U.S.C. § 1251(b)(2)(B). We therefore conclude that no purpose would be served
       by remanding this case to the Immigration Judge for further proceedings.

Respondent’s Brief, Attachment 1 at 2-3.

                                             -7-
had denied the motion to reconsider. Id. This denial was many months after the original

ruling. Id. The Supreme Court held that petitioner’s petition for review was untimely

with respect to the BIA’s original ruling on the IJ’s decision. Id. at 406.

       The core of the Court’s holding was that the BIA’s original ruling was a final

order, despite the pendency of the motion to reconsider, and that the time to seek judicial

review was therefore not affected by the motion to reconsider. The Court analogized the

motion to reconsider to a motion to set aside a judgment under Rule 60(b) of the Federal

Rules of Civil Procedure. The law is settled that a Rule 60(b) motion – unless filed

within 10 days of the judgment being challenged, in which case the Rule 60(b) motion is

treated as a motion under Rule 59(e) – does not affect the finality of the original judgment

or the time within which a party may appeal the judgment. Stone, 514 U.S. at 401.

       The INS appears to focus here on the statement in Stone that the BIA decision on

the motion to reconsider is itself a final order. The INS argues that because that decision

is itself a final order, the failure of petitioners to appeal the order binds them regarding

each issue resolved in the decision, even if the issue is properly raised before this court in

a petition for review of the original BIA decision.

       We disagree. An unchallenged ruling by the BIA on a motion to reconsider is final

in that it is separately appealable.4 But it is not res judicata with respect to an issue


       4
           According to the Supreme Court in Stone:

       By its terms, § 106(a)(6) contemplates two petitions for review and directs

                                              -8-
pending on judicial review of the original decision of the BIA. Once an issue is properly

raised by a petition for review of the original decision, no purpose would be served by

requiring the petitioner to raise the identical issue again in a petition to review the BIA’s

decision on the motion to reconsider. Thus, petitioners’ filing of a motion to reopen or

reconsider does not affect this court’s jurisdiction.

       D.     Designation of Canada as Alternate Country of Deportation

       Petitioners challenge the BIA’s decision to designate Canada as an alternate

country of deportation. First, they contend that the BIA abused its discretion by

“addressing an issue [not] raised by the parties.” Noting that neither party appealed the

withholding of deportation, they contend that the BIA may address an unraised issue only

when it complies with 8 C.F.R. § 3.1(c), which requires notice of the certification of a

“case” and an opportunity to submit a brief unless the parties have already been given “a

fair opportunity to make representations before the Board . . . .” Id. Petitioners assert




       the courts to consolidate the matters. The words of the statute do not
       permit us to say that the filing of a petition for reconsideration or reopening
       dislodges the earlier proceeding reviewing the underlying order. The statute,
       in fact, directs that the motion to reopen or reconsider is to be consolidated
       with the review of the order, not the other way around. This indicates to us
       that the action to review the underlying order remains active and pending
       before the court. We conclude that the statute is best understood as
       reflecting an intent on the part of Congress that deportation orders are to be
       reviewed in a timely fashion after issuance, irrespective of the later filing of
       a motion to reopen or reconsider.

Stone, 514 U.S. at 394 (emphasis added).

                                              -9-
that, had they been given this opportunity, they would have presented evidence

questioning whether Canada would allow them to reenter. They argue that it would be

unfair for the INS to hold them in custody as deportable aliens while it investigated their

status with respect to Canada.5 Petitioners also suggest that the BIA’s designation of

Canada as the alternate country of deportation may have overturned the IJ’s grant of

withholding of deportation.

       In our view, however, the BIA had the authority to designate an alternate country

of deportation. As the BIA noted, withholding of deportation is country-specific. If a

petitioner fails to designate an alternate country of deportation, or if a designated country

will not accept the petitioner, the Attorney General may designate an alternate country. 8

U.S.C. § 1253(a) (1994); see also Palciauskas v. I.N.S., 939 F.2d 963, 968 (11th Cir.

1991) (discussing § 1253(a)’s three-level hierarchy of countries to which excludable

aliens may be deported and the Attorney General’s options when designating alternative

countries). Petitioners declined the opportunity to designate an alternate country at their

first hearing. At the second hearing, the IJ erred by failing to designate one. The BIA

specifically noted and corrected this error by designating Canada as the alternate country

of deportation.

       We disagree with petitioners’ suggestion that the BIA’s designation of an alternate


       5
         We note that petitioners are not in INS custody at this time. If the INS chooses
to detain the petitioners, they may challenge such detention in a petition for habeas
corpus.

                                             -10-
country of deportation might have “either explicitly or implicitly” overturned the IJ’s

grant of withholding of deportation to Ethiopia. The language of the BIA’s order does

not raise doubts about the bar to deportation to Ethiopia, and the BIA’s order denying

reconsideration further clarified its intent to leave that aspect of the IJ’s ruling intact. We

also disagree with petitioners’ characterization of the BIA’s designation of Canada as a

“change” or “substitution” of the country of deportation. Petitioners chose not to

designate an alternate country of deportation in their application for withholding of

deportation to Ethiopia, and in his oral decision, the IJ likewise failed to designate one;

there was, then, no change, but rather the correction of an omission.

       Petitioners likewise err in their contention that the BIA lacked the authority to

correct the IJ’s failure to designate a country of deportation. The rules governing appeals

to the BIA authorize it to correct any error it discovers. Section 3.1(d)(1)(ii) states, in

pertinent part: “Board members shall exercise their independent judgment and discretion

in considering and determining the cases coming before the Board, and a panel or Board

member to whom a case is assigned may take any action consistent with their authorities

under the Act and the regulations as is appropriate and necessary for the disposition of the

case.” In the appeal before the BIA, there was plain error in the failure to declare the

country to which the petitioners should be deported if they did not voluntarily depart.

       The petitioners’ reliance on 8 C.F.R. § 3.1(c) is misplaced. That provision

provides:


                                             -11-
              The Commissioner, or any other duly authorized officer of the
              Service, any Immigration Judge, or the Board may in any case
              arising under paragraph (b) of this section certify such case to the
              Board. The Board in its discretion may review any such case by
              certification without regard to the provisions of § 3.7 [providing for
              notice of certification to the alien affected] if it determines that the
              parties have already been given a fair opportunity to make
              representations before the Board regarding the case, including the
              opportunity [to] request oral argument and to submit a brief.

Thus, § 3.1(c) allows the BIA to certify a “case” that otherwise could not properly be

heard. See, e.g., In re Kanagasundram, 22 I&N Dec. 963 (BIA 1999) (considering a case

on certification where the IJ certified the case to the BIA); Matter of Correa-Garces, 20

I&N Dec. 451 (BIA 1992) (BIA took an untimely appeal on certification in order to

reverse in part an IJ’s decision). Although there has been at least one occasion on which

the BIA has cited § 3.1(c) as authority to consider an “issue” in a case already before it,

Matter of Hernandez-Ponce, 19 I&N Dec. 613, 1988 WL 235444 (BIA 1988), the clear

import of the provision is not to authorize correction of a single error in an appeal already

before it, but to authorize the BIA to hear an appeal, and that has been by far its most

common use.

       Nor do we agree with petitioners’ claim that the BIA denied them due process.

To the extent that petitioners are arguing that the designation of the country of deportation

should have been made by the IJ (which would apparently have avoided the potential

need to hold them in custody while their status in Canada was being investigated), they

waived the argument by standing mute before the IJ when asked to name an alternative to


                                             -12-
Ethiopia as a country of deportation and by failing to raise the issue later in the

proceedings. Petitioners were not ignorant of the issue; they were represented by capable

counsel from the outset. Whatever the reasons for their tactical decision to let the issue

slide in the proceedings before the IJ, that decision forecloses their present complaint.

       Nor did the BIA’s designating a country of deportation without first hearing

petitioners’ argument and evidence deny them due process. Given petitioners’ refusal to

suggest a country of deportation, the initiative on the matter lay with the INS. There was

no denial of due process when the INS (through the BIA) first designated a country of

deportation and then allowed the petitioners to raise their objections. In Link v. Wabash

Railroad Co., 370 U.S. 626 (1962), the Supreme Court upheld the district court’s order

dismissing the plaintiff’s case for failure to prosecute after the plaintiff’s attorney failed

to appear at a pretrial conference. Responding to the plaintiff’s claim that he was denied

due process by the district court’s failure to conduct a hearing prior to dismissal, the

Supreme Court said:

               Nor does the absence of notice as to the possibility of dismissal or
       the failure to hold an adversary hearing necessarily render such a dismissal
       void. It is true, of course, that “the fundamental requirement of due process
       is an opportunity to be heard upon such notice and proceedings as are
       adequate to safeguard the right for which the constitutional protection is
       invoked.” Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246 (1944). But
       this does not mean that every order entered without notice and a preliminary
       adversary hearing offends due process. The adequacy of notice and hearing
       respecting proceedings that may affect a party’s rights turns, to a
       considerable extent, on the knowledge which the circumstances show such
       party may be taken to have of the consequences of his own conduct. The
       circumstances here were such as to dispense with the necessity for advance

                                          -13-
       notice and hearing.

              In addition, the availability of a corrective remedy such as is
       provided by Federal Rule of Civil Procedure 60(b) – which authorizes the
       reopening of cases in which final orders have been inadvisedly entered –
       renders that lack of prior notice of less consequence. Petitioner never
       sought to avail himself of the escape hatch provided by Rule 60(b).


Id. at 632. Likewise, here the petitioners knew that the INS would have to name the

country of deportation at some point, explicitly waived their opportunity to raise the

matter before the IJ, and, perhaps dispositively, had the opportunity to move the BIA for

reconsideration. There is no question that petitioners were free to request the BIA modify

its designation of Canada as the alternate country of deportation in a motion to reconsider.

See Henry v. I.N.S., 8 F.3d 426, 431 (7th Cir. 1993) (The BIA granted petitioner’s motion

to reconsider Croatia, rather than Yugoslavia, as country of deportation after Croatia

declared its independence from Yugoslavia, in order to effect the intent of the original

order that petitioner be returned to his homeland.). In response to the motion for

reconsideration, the BIA would need to consider petitioners’ legal arguments and conduct

an evidentiary hearing (perhaps by remand to the IJ) with respect to any properly raised

and supported factual contentions relevant to the matter. Indeed, petitioners filed a

motion for reconsideration, and the BIA dealt with it on the merits.

       Because the petitioners did not seek judicial review of the BIA’s ruling on that

motion, the merits of the ruling are not before us. That, however, is irrelevant to

petitioners’ due process claim. Petitioners were given an opportunity to address the

                                            -14-
BIA’s designation of an alternate country of deportation in their motion to reconsider.

Petitioners were represented by competent counsel. When asked by the IJ to designate an

alternate country of deportation, they explicitly declined, choosing instead to stand mute

on the matter. Under these circumstances, we find no violation of the petitioners’

procedural due process rights.

E.     BIA’s Finding of Firm Resettlement

       Petitioners were denied asylum because they had firmly resettled in Canada after

leaving Ethiopia and before arriving in this country. In general, “[a]n 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 . . . .” 8 C.F.R. § 208.15.

There are, however, exceptions to the general rule. On appeal, petitioners rely on the

exception for aliens who establish that their stay in the transit country was “a necessary

consequence of [their] flight from persecution, that [they] remained in that country only

as long as was necessary to arrange onward travel, and that [they] did not establish

significant ties to that country.” Id. They assert that they entered Canada only because

they desperately needed to leave the Sudan, and that their stay in Canada was “occasioned

by the time it took to procure travel documents and by the birth of their child.”

Petitioners contend that the BIA dismissed their firm-resettlement arguments in only four

short sentences, which, they argue, failed to provide reasoning for the BIA’s decision and


                                              -15-
demonstrated a failure to consider all the evidence.

       As noted above, we review the agency’s decision on this issue for an abuse of

discretion. That is, we require only a “rational connection between the facts found and

the choice made.” Woldemeskel, 257 F.3d at 1189 (citation and internal quotation marks

omitted). While petitioners’ argument might have persuasive force on a de novo review,

we disagree with petitioners’ assertion that the BIA’s opinion provided no basis for its

decision or demonstrated a failure to consider the evidence. The BIA concluded that

petitioners had established significant ties with Canada because of their protracted stay in

that country, their status as landed immigrants, and the birth of their son, a Canadian

citizen. In addition, the BIA could infer that petitioners did not stay in Canada “only as

long as necessary to arrange onward travel.” Petitioners offered no evidence that they

could not have obtained travel documents for the United States sooner; on the contrary,

they paid a four-day visit to this country one month before they entered to stay. We

cannot say that a rational connection between the facts and the BIA’s conclusion is

lacking, and we may not “substitute our judgment for that of the BIA.” Id. We find no

abuse of discretion in the BIA’s finding that petitioners were firmly resettled in Canada.

                                      III. Conclusion

       For these reasons, the petitions for review are DENIED. The motion by

Respondent to amend the caption is GRANTED. The motion by Petitioners to




                                            -16-
supplement the administrative record is GRANTED.




                                       -17-
No. 01-9530, Desta v. INS

McKay, Circuit Judge, concurring in part and dissenting in part:



       I agree with the majority that Petitioners are clearly refugees and that that itself is

not an issue in this case. I also agree that they are entitled to seek asylum which

precludes deportation to any country. It is also clear that when asylum is denied, the INS

may deport the refugee to another appropriate country. I also agree that withholding of

deportation, which the immigration judge ordered in this case, does not preclude the

Attorney General from designating an alternate country. I cannot agree, however, that by

merely standing mute when given an opportunity to designate an alternate country

Petitioners waived their right to challenge that country as appropriate.

       In this case, the immigration judge merely withheld deportation and did not

designate an alternative country. On appeal, the BIA, on its own motion, designated

Canada with no notice or opportunity for Petitioners to challenge that designation as an

appropriate country. As I understand the record, the BIA did not consider the merits of

Petitioners' objections to Canada as an appropriate alternative country, even on petition

for reconsideration. The BIA, like the panel in this case, apparently took the view that by

failing to designate an alternative country Petitioners had waived the right to object to the

appropriateness of the country designated by the BIA.

       While it is not a part of the record in this case, at argument counsel suggested that

in similar cases it is not uncommon for aliens to stand mute when given an opportunity to
designate an alternative country. In any event, that standing alone cannot be viewed as

waiving the right to challenge the appropriateness of the country eventually named by the

BIA. It is altogether possible, and may in fact be true in some cases, that no country is

appropriate as an alternative for persons who are in fact refugees. No cases and nothing

in logic suggests that refugees have a duty to choose or even know which alternative

country would be appropriate. If, as in this case, one is chosen for them, the minimum

due process required is that they be given an opportunity to be heard on the question of

appropriateness of that particular country. In this very case, it is conceded that the Sudan,

through which they passed, would not be appropriate. Had that country been designated

by the BIA, it hardly seems arguable that Petitioners waived the right to challenge that

designation merely because they did not pick their own poison.

       While such record as we have suggests that Canada may be an appropriate country,

Petitioners’ challenge to that designation has not been heard on the merits. Indeed, at

argument there was some dialogue with counsel about what would happen if Canada

refused them reentry. While that came to no resolution, it illustrates why a sound rule

requires that when the BIA designates on its own motion an alternative country,

Petitioners are entitled at a minimum to a hearing on their objection.

       While perhaps a little over-dramatic, by analogy, this case is like the case of one

given the death penalty in Utah. That person is given a choice between two forms of

execution. By failing to choose which form, it cannot be argued that the accused has


                                             -2-
waived the right to challenge, on the grounds of Cruel and Unusual, the manner selected

for him by the judge.

      I would remand for a hearing on the merits of Petitioners' objections to the

designation of Canada as an appropriate alternative country of deportation.




                                           -3-
