FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VINODH PARSAD MAHARAJ; SUNITA 

No. 03-71066 DEVI MAHARAJ; PREETIKA MAHARAJ;

MEENAL Agency Nos. MAHARAJ; VINEET

MAHARAJ, A71-788-923

Petitioners, A71-788-924  A72-402-323

v. A72-402-324

ALBERTO R. GONZALES, Attorney A72-402-325

General,

Respondent. 

VINODH PARSAD MAHARAJ; SUNITA 

No. 03-73995 DEVI MAHARAJ; PREETIKA MAHARAJ;

MEENAL Agency Nos. MAHARAJ; VINEET

MAHARAJ, A71-788-923

Petitioners, A71-788-924  A72-402-323

v. A72-402-324

ALBERTO R. GONZALES, Attorney A72-402-325

General, OPINION Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 12, 2005—San Francisco, California

Filed August 4, 2005

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and

Andrew J. Kleinfeld, Circuit Judges.

10067
Opinion by Judge O’Scannlain

10068 MAHARAJ v. GONZALES
COUNSEL

Ashwani K. Bhakhri, Law Offices of Ashwani K. Bhakhri,

Burlingame, California, argued the cause for the petitioner,

and filed a brief. 

10070 MAHARAJ v. GONZALES
James E. Grimes, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., argued the

cause for the respondent. Peter D. Keisler, Assistant Attorney

General, Richard E. Evans, Assistant Director, and Nancy E.

Friedman, Office of Immigration Litigation, United States

Department of Justice, Washington, D.C., were on the briefs.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a Fijian citizen’s four-year residence in Canada, which ended when he entered the United

States, constituted “firm resettlement” under federal immigration law, thus barring his claim for asylum here.

I

Vinodh Maharaj, his wife, and two of their three children

are citizens of Fiji,1 where they lived until November, 1987.

In March, 1987, Maharaj, who worked as a bus driver, was

instructed by his boss to help the Coalition Labor Party (CLP)

mobilize voters for the upcoming national election. His

election-related work involved transporting Indo-Fijian voters

to and from the polls in a bus festooned with CLP placards,

posters and flags. Although Mr. and Mrs. Maharaj were not

affiliated with any political party, they believe that ideological

support for the CLP party was imputed to them because of his

busing of voters and her non-partisan work at a polling station

located at the school where she worked as a secretary. This is

quite likely given the close identification of race and politics

in Fiji. In the 1987 election, native Fijians, who make up 51%

of the population, voted overwhelmingly for native Fijian par1Maharaj is the principal petitioner for asylum; his wife’s petition, and

those of his three children, are derivative of his petition. The third child

was born in, and is a citizen of, Canada. 

MAHARAJ v. GONZALES 10071
ties, and Indo-Fijians like the Maharajs, who make up 44% of

the population, voted overwhelmingly for the CLP and other

Indo-Fijian parties. After the election, which the CLP won,

Mr. Maharaj received several threats from native Fijians, who

blamed his busing for helping the CLP to gain power and

threatened to kill him and his family and to burn down his

house. 

Two months later, the Fijian army, which is almost exclusively native Fijian, overthrew the newly elected CLP government. In the immediate wake of the coup, the Maharaj

family’s rented room was invaded by two soldiers, who stole

various items, tied Maharaj up and forced his wife to conduct

traffic in her underwear at gunpoint. Shortly after this incident, Mrs. Maharaj was assaulted by two soldiers on her way

to work. They forced her into an empty house and raped her,

breaking her right arm and burning her with cigarettes. When

she went to the police and to the hospital, she was turned

away and told that their services were only for native Fijians.

In June or July, Maharaj was attacked on his bus route by

native Fijians. They demanded money from him and, when he

refused, they broke two of his ribs, knocked him unconscious,

and left him with a seriously bruised jaw and cuts on his face.

Although he was able to receive medical attention in a hospital, when he went to the police they turned him away because

he was Indo-Fijian. 

The next month, in August, the family’s rented room was

burned down and Mrs. Maharaj was burned, though not seriously, in the fire. There were no witnesses, but Mr. Maharaj

believes that the fire was set by native Fijians. 

Although no further attacks occurred after August, Mr.

Maharaj continued to receive general threats and harassment

at work from native Fijians, and he was hindered in his practice of Hindu worship. In November, the family left Fiji for

Canada and settled in Edmonton, where Mr. Maharaj has

10072 MAHARAJ v. GONZALES
some distant family. In Canada, they applied for permanent

residence as refugees. 

Mr. Maharaj worked in Edmonton as a full-time janitor and

also as a bakery deliveryman while his wife received training

to become a nurse’s assistant and worked full-time for a year

caring for the elderly. Both Mr. and Mrs. Maharaj were given

Social Insurance Numbers and work authorization, their third

child was born in Edmonton, their children attended free public school and the family received free health care from the

Canadian government. Although Mr. and Mrs. Maharaj complained about working menial jobs that they did not enjoy,

and about stigma associated with being refugees, they were

able to worship freely at a Hindu temple and had non-Indian

and non-Fijian friends in Edmonton. The Immigration Judge

(the “IJ”) found that there is no question that they were free

from persecution in Canada. 

After four years in Canada, the Maharaj family entered the

United States in March, 1991, at the border crossing between

Vancouver, Canada, and Blaine, Washington, in a vehicle

driven by a Canadian citizen. Both Mr. and Mrs. Maharaj

later testified about their reasons for leaving Canada for the

United States. Mr. Maharaj testified that he “wanted to move

to United States because, uh, [he] wanted to see what United

States looks like” and that the “main thing was job. We never

had a good job.” Mrs. Maharaj testified that “we were not getting good job . . . . We wanted to, you know, go up and have

more money and build ourself. So, that’s the time when we

thought we don’t like Canada.” When they arrived, they

“liked this place much better than Canada, so [they] decided

to stay here.” 

After the family overstayed its permitted time in the United

States,2 Mr. and Mrs. Maharaj were served with Orders to

2Despite their lack of identification papers, the U.S. border guard

appears to have negligently assumed that all the passengers in the vehicle

were Canadian citizens, and they were admitted as visitors with leave to

remain for six months. 

MAHARAJ v. GONZALES 10073
Show Cause by the INS charging them and their children as

deportable. At their hearing, the family conceded deportability but Maharaj requested asylum and withholding of

removal. The IJ denied Maharaj’s request because he and his

family had been firmly resettled in Canada and he was, therefore, ineligible for asylum. The IJ also denied him withholding of removal because, although he had endured past

persecution, the IJ held that, because circumstances in Fiji had

changed since his departure in 1987, there is no clear probability that Maharaj’s life or freedom would be in danger upon

his return. The IJ designated Fiji as the country of removal for

the family, with the exception of the youngest child, who is

a Canadian citizen by birth, whose country of removal was

designated as Canada. 

Before his appeal had been heard by the Board of Immigration Appeals (the “BIA”), Maharaj filed a motion to reopen

the case (not with the Immigration Court, but with the BIA)

based on new evidence of conditions in Fiji and also submitted a one-page fax purporting to show that his Canadian asylum application had been denied. In due course, the BIA

affirmed the IJ’s decision in a written opinion. It agreed that

Maharaj was ineligible for asylum because his family had

been firmly resettled in Canada, and, in the alternative, it held

that the presumption of a well-founded fear of persecution

had been rebutted by evidence of changed circumstances in

Fiji. It also affirmed the IJ’s decision to deny withholding of

removal. Maharaj’s motion to reopen, together with the fax,

was treated by the BIA as a motion to supplement the record

and was denied. 

Maharaj again petitioned the BIA to reopen his case, based

on the coup that had occurred in Fiji in May, 2000, which had

also been the basis for his first motion to reopen. The BIA

issued a second opinion, which held that the evidence of

changed conditions in Fiji had already been considered and

rejected and did not warrant reopening the case. 

10074 MAHARAJ v. GONZALES
Maharaj timely appeals the BIA decision affirming the IJ’s

original decisions to deny him asylum and withholding of

removal. He has not challenged the BIA’s denial of his

motion to reopen and thus that claim has been waived. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

II

[1] The plain language of the firm resettlement regulation3

requires that a petitioner be denied asylum if he has been

“firmly resettled” in a third country prior to entering the

United States. See 8 C.F.R. § 208.13(c)(2)(i)(B) (1999); see

also Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir. 1999).

“Firmly resettled” means that, “prior to arriving in the United

States, [the petitioner] entered into another nation with, or

while in that nation received, an offer of permanent resident

status, citizenship, or some other type of permanent resettlement.” 8 C.F.R. § 208.15.4

 Despite this language, this court

3Because Maharaj filed his application for asylum on May 3, 1991,

before the effective date of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009, his case

must be reviewed under the firm resettlement provision set out in 8 C.F.R.

§ 208.13(c)(2)(i)(B). See Ali v. Ashcroft, 394 F.3d 780, 789 n.9 (9th Cir.

2005) (“Deqa Ali”). 

4

In 1996, the firm resettlement bar to asylum was codified at 8 U.S.C.

§ 1158(b)(2)(A)(vi), but the definition at 8 C.F.R. § 208.15 remained the

same. Even when this provision applies, there are two exceptions under

which a petitioner may rebut a prima facie showing of firm resettlement.

These exceptions are: 

(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 immiMAHARAJ v. GONZALES 10075
has consistently held that, in the absence of evidence of such

offer, a petitioner’s extended, undisturbed residence in a third

country creates a presumption of firm resettlement that will

satisfy the definition. See Cheo v. INS, 162 F.3d 1227, 1229

(9th Cir. 1998); see also Andriasian, 180 F.3d at 1043. 

This “Cheo” presumption is a useful complement to the

plain language of the firm resettlement regulation. In this context, there is an incentive on the part of the petitioner to conceal evidence of an offer of permanent resettlement in a third

country because producing it would defeat his claim. It is,

therefore, reasonable and necessary to look to the length of

the petitioner’s stay in the third country and to the circumstances of his life there to decide whether or not the presumption of firm resettlement survives. 

A

[2] Although not dictated by the text of 8 C.F.R. § 208.15,

the Cheo presumption is consistent with the Supreme Court’s

only exegesis of the firm resettlement doctrine. In 1971, the

Court decided the case of a native of Red China who had fled

for Hong Kong in 1953, where he lived until 1965, when he

applied for asylum in the United States. Rosenberg v. Yee

Chien Woo, 402 U.S. 49, 50 (1971). Although the Displaced

Persons Act of 1948 and its successor statute, the Refugee

Relief Act of 1953, had both explicitly included the concept

of “firm resettlement,” when the 1953 Act was extended in

gration 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 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. 

10076 MAHARAJ v. GONZALES
1957, the reference to “firm resettlement” was omitted from

the statute. Id. at 54-55. The revised definition of “refugee,”

however, required that the petitioner have “fled” persecution

and, focusing on this provision, the Court held that the firm

resettlement doctrine persisted in the new definition of “refugee” because “both the terms ‘firmly resettled’ and ‘fled’ are

closely related to the central theme of all 23 years of refugee

legislation—the creation of a haven for the world’s homeless

people.” Id. Writing for the Court, Justice Black explained

that:

[The act] was never intended to open the United

States to refugees who had found shelter in another

nation and had begun to build new lives. Nor could

Congress have intended to make refugees in flight

from persecution compete with all of the world’s

resettled refugees for the 10,200 entries and permits

afforded each year under [the statute]. Such an interpretation would subvert the lofty goals embodied in

the whole pattern of our refugee legislation. 

Id. at 56. The Court also announced that “the correct legal

standard” to apply in cases where a petitioner has fled persecution is that the petitioner’s “physical presence [in the

United States] must be one which is reasonably proximate to

the flight and not one following a flight remote in point of

time or interrupted by intervening residence in a third country

reasonably constituting a termination of the original flight in

search of refuge.” Id. at 56-57 (internal quotation marks omitted). 

We have recognized that the Court’s reasoning in Woo

applies also to the current definition of firm resettlement.

Referring to Woo, we have held that “[f]irm resettlement has

long been a decisive factor in asylum policy. . . . Nothing in

the Refugee Act or its legislative history alters the longstanding significance of firm resettlement to the asylum process.” Yang v. INS, 79 F.3d 932, 939 (9th Cir. 1996); see also

MAHARAJ v. GONZALES 10077
Ali v. Reno, 237 F.3d 591, 594 (6th Cir. 2001) (extending the

Supreme Court’s holding in Woo to the Refugee Act of 1980).

1

[3] The Supreme Court’s reasoning in Woo is consistent

with both the origins of, and the continuing rationale supporting, our refugee and asylum laws. The original congressional

declaration of policies and objectives for the Refugee Act of

1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended

in scattered sections of 8 U.S.C.), announced that 

it is the historic policy of the United States to

respond to the urgent needs of persons subject to

persecution in their homelands . . . . The Congress

further declares that it is the policy of the United

States to encourage all nations to provide assistance

and resettlement opportunities to refugees to the fullest extent possible. 

Refugee Act § 101. This statement, like the legislation it

accompanied and the current iteration of the statute, recognizes the co-operative nature of the obligations described in

the 1967 United Nations Protocol Relating to the Status of

Refugees (the “1967 Protocol”), to which the United States

acceded in 1968. See Preamble to 1967 Protocol, Jan. 31,

1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (1968) (“[T]he grant

of asylum may place unduly heavy burdens on certain countries, and . . . a satisfactory solution of a problem of which the

United Nations has recognized the international scope and

nature cannot therefore be achieved without international cooperation.”). 

A consequence of the international and co-operative nature

of our obligations under the 1967 Protocol is that these obligations, though freely undertaken and diligently executed, are

not boundless. The most obvious limitations are the discretion

bestowed on the Attorney General to accept or to reject the

10078 MAHARAJ v. GONZALES
asylum application of a qualified refugee, see 8 U.S.C.

§ 1158(b)(1) (“The Attorney General may grant asylum to an

alien who has applied for asylum in accordance with the

requirements and procedures established by the Attorney

General under this section if the Attorney General determines

that such alien is a refugee . . . .”) (emphasis added), and the

numerical limit on the number of refugees that may be admitted into the United States each year. See 8 U.S.C. § 1157(a).

These limitations are consistent with the Supreme Court’s

observation in Woo that “refugees in flight from persecution”

should not be forced to compete with “the world’s settled refugees,” 402 U.S. at 56, for the finite number of places available in the United States each year. Adherence to this limiting

rule most justly discharges our nation’s obligations and most

effectively encourages those of our fellow contracting nations.

B

Those cases in which we have held that evidence of an

offer vel non of permanent resettlement is the determinative

factor in applying the firm resettlement bar have also affirmed

the continuing vitality of the Cheo presumption and of the

Supreme Court’s holding in Woo. 

1

In Andriasian, the petitioner was an Azeri who had fled

with his family to Armenia to escape persecution in his native

country. 180 F.3d at 1036. For forty-four months the family

traveled between Russia, Armenia and the Ukraine, moving

nine times to avoid further persecution. Id. When they finally

reached the United States and applied for asylum, the IJ found

that, “ ‘except for a brief reference on cross-examination to

having problems with religious practice in Armenia . . . the

respondent did not assert any problems while living in Armenia . . .’ [and] the Armenian government had neither prevented Mr. Andriasian’s resettlement nor imposed restrictions

on the Andriasian family.” Id. at 1039. On the basis of these

MAHARAJ v. GONZALES 10079
findings, the IJ held that the Andriasian family had been

firmly resettled in Armenia. Id. On appeal, the BIA reversed

the IJ’s application of the firm resettlement bar but denied

Andriasian’s appeal on other grounds. Id. 

On petition to this court, the government did not challenge

the BIA’s reversal of the IJ’s firm resettlement finding.

Though the issue was not properly before us, we gave our

imprimatur to the BIA’s decision and observed that 

the INS regulation . . . mandates a denial of asylum

if a third country in which an alien has resided after

becoming a refugee offers him permanent resettlement; such “resettlement” precludes asylum, unless

the application can demonstrate that his stay in the

third country lasted only until he could arrange for

further travel or that the conditions of life in that

country would be unduly restrictive. 

Id. at 1043. This statement generally follows the text of 8

C.F.R. § 208.15, including the two exceptions to firm resettlement, and is consistent with the Court’s acknowledgment in

Woo that:

Certainly many refugees make their escape to freedom from persecution in successive stages and come

to this country only after stops along the way. Such

stops do not necessarily mean that the refugee’s aim

to reach these shores has in any sense been abandoned. . . . [T]he presence of such persons in this

country is not “one which is reasonably proximate to

the flight” or is “remote in point of time or interrupted by intervening residence in a third country.”

402 U.S. at 57 n.6. 

[4] These articulations of asylum policy also support the

extension of the Cheo presumption of firm resettlement to the

10080 MAHARAJ v. GONZALES
facts of this case. The Maharaj family was not temporarily

delayed in Canada in the course of an “escape to freedom”

and the family’s four-year, undisturbed residence in Edmonton was not one of a series of “successive stages” on a continuous journey from Fiji to the United States. All the relevant

evidence in the record, including Mr. and Mrs. Maharaj’s testimony, establishes that Canada was the family’s chosen destination when they left Fiji in 1987 and that it was only in

1991, after they became discouraged by their jobs in Canada,

that they chose to abandon their pending asylum claim there

to come to the United States. 

2

In Deqa Ali, we considered the case of a Somali petitioner

who had fled persecution in her native country. She and her

family first sought refuge in Ethiopia, where members of certain high-caste Somali clans have been offered refugee status,

but, as a member of the low-caste Muuse Diriiye clan, she

was not offered that protection. 394 F.3d at 783. Ali spent five

years in Ethiopia as an undocumented alien trying to arrange

further travel to somewhere that would offer her permanent

settlement before she was able to make her way to the United

States. Id. at 783-84. Despite the length of her stay in Ethiopia, we held that the firm resettlement bar did not apply

because “the fact that Ali fortuitously evaded detection by the

government while living illegally in Ethiopia does not allow

for a finding that Ali was firmly resettled.” Id. at 790. We also

held that “the Cheo presumption ‘does not mean that as soon

as a person has come to rest at a country other than the country of danger, he cannot get asylum in the United States.’ ” Id.

(quoting Cheo, 162 F.3d at 1230). 

We further opined that, as a general rule, “the [Cheo] presumption only applies when ‘there is no direct evidence one

way or the other as to whether the [asylum applicants] have

or had the right’ of permanent resettlement in their country of

first asylum.” Id. (quoting Cheo, 162 F.3d at 1229). Of

MAHARAJ v. GONZALES 10081
course, in Deqa Ali we did not consider the case of a petitioner who voluntarily terminates an active asylum application in a safe third country. Without passing on the

applicability of Deqa Ali’s general statement of the firm resettlement rule in other contexts, its scope does not extend to the

facts of this case. 

[5] Here, we know that the Maharaj family’s asylum claim

was still pending when it chose to leave Canada and so we

have direct evidence that the members of the family never

actually received an offer of permanent resettlement.5 Nevertheless, it would be contrary to the limited, co-operative and

reciprocal nature of our national asylum obligations, and to

the Supreme Court’s holding in Woo, to apply the general rule

announced in Deqa Ali to the facts of this case. Forumshopping among aliens who are no longer actively fleeing

persecution undermines the integrity of the international asylum regime established by the 1967 Protocol, and it would be

contrary to our national obligations under that treaty to

indulge the Maharaj family’s economic preference for asylum

in the United States over Canada. 

5Maharaj contends that he cannot return to Canada because, since his

family’s departure fourteen years ago, his application for asylum there was

denied for failure to appear at a hearing. When determining whether an

asylum applicant was firmly resettled, we look to his status in the third

country immediately prior to his entry into the United States. See Vang v.

INS, 146 F.3d 1114, 1117 (9th Cir. 1998) (“[T]he fact that Vang allowed

his French travel document to expire after he entered the United States

cannot alter the disposition of his asylum claim.”); Yang v. INS, 79 F.3d

932, 934 (9th Cir. 1996) (holding that petitioners were firmly resettled

despite their claim that they would no longer be able to return to the country of firm resettlement due to the expiration of travel documents). In this

case, Mr. and Mrs. Maharaj testified that their family lived in Canada for

four years, enjoying the protection of the government of Canada, including

free health care, free public schooling, work authorization, Social Insurance Numbers, driver’s licenses and the freedom to move unimpeded

around the country. They had also applied for asylum in Canada and that

claim was pending when they left to come to the United States. That is the

status we must consider in evaluating Maharaj’s petition. 

10082 MAHARAJ v. GONZALES
C

[6] When a petitioner has enjoyed an extended, undisturbed

stay in a safe, third country and has begun the process of

applying for permanent residence, citizenship, or another

form of permanent resettlement, which he subsequently repudiates or abandons in favor of entry into the United States, the

burden is on the petitioner to rebut the Cheo presumption of

firm resettlement. Cf. Cheo, 162 F.3d at 1230 (“[W]here the

duration and circumstances indicate that the asylum seeker

may remain in the third country, then it is incumbent upon

him to show the contrary.”). This burden cannot be met simply by showing that, because his immigration or asylum status

had not yet been resolved when he left the third country, he

never received an offer of permanent resettlement; he must

show that at least one of the two exceptions to “firm resettlement” applies. See 8 C.F.R. § 208.15(a)-(b). 

[7] Maharaj freely chose to apply for asylum in Canada

and, while that process was pending, enjoyed a sufficiently

extended and undisturbed stay there to establish a Cheo presumption of firm resettlement. The burden is on him to rebut

this presumption. Because we agree with the IJ’s conclusion

that “the suggestion that [the Maharaj family] w[as] persecuted in Canada simply is not acceptable on the facts of the

case,” and because Maharaj has not presented any other relevant evidence to rebut the presumption of firm resettlement,

he has not met his burden.

III

[8] Maharaj also contends that, in light of the coup that

occurred in May 2000, he is eligible for withholding of

removal because it is more likely than not that he will be persecuted upon return to Fiji. However, Maharaj has failed to

show that his minor role in an election 18 years ago, which

he claims triggered his persecution in the wake of the 1987

coup, would motivate similar persecution today, and the

MAHARAJ v. GONZALES 10083
Country Reports contain evidence of a significant lessening of

political and racial tension since 2000. We are, therefore, satisfied that the BIA’s denial of withholding of removal is supported by substantial evidence in the record concerning the

circumstances of the original persecution and current country

conditions. See Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.

1995). 

The petition for review is DENIED. 

10084 MAHARAJ v. GONZALES