United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2649

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Ahmad Wali Sultani; Saleha *

Sultani; Beejan Sultani; *

Mariam Sultani; Ahmad Wasim *

Sultani, *

* On Petition for Review of an

Petitioners, * Order of the Board of

* Immigration Appeals.

v. *

*

Alberto Gonzales, Attorney General, *

*

Respondent. *

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Submitted: March 17, 2006

Filed: July 27, 2006

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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.

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BOWMAN, Circuit Judge.

Ahmad Wali and Saleha Sultani and their children, Beejan, Mariam, and Ahmad

Wasim, challenge an order of the Board of Immigration Appeals (BIA), which

summarily affirmed the decision of the Immigration Judge (IJ) denying the Sultanis'

applications for asylum from Afghanistan. We deny the petition for review. 

Ahmad Wali fled Afghanistan for Pakistan in September 1981 after Soviet

forces invaded Afghanistan. In 1983, Saleha, Beejan, and Mariam joined Ahmad Wali
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in Pakistan. The family remained in Pakistan until 1988, during which time Ahmad

Wali worked for various international relief agencies. While in Pakistan, the Sultanis

applied for refugee status in Australia, and they were granted that status in August

1988. The family moved to Melbourne, Australia, where Ahmad Wasim was born.

In September 1989, the Sultani family came to the United States as visitors with

permission to remain in the country for a temporary period in order to obtain medical

treatment for Beejan. The Sultanis did not leave the United States when the visitation

period ended. In September 1990, Ahmad Wali and Saleha were placed in deportation

proceedings. Through their counsel, Ahmad Wali and Saleha conceded deportability,

but requested a one-year voluntary departure period in order to complete Beejan's

medical treatment in the United States. After hearing testimony from Ahmad Wali,

the IJ continued the deportation proceedings to allow the Sultanis and their attorney

an opportunity to consult with Australian authorities to determine the Sultanis'

immigration status in Australia. The IJ instructed the Sultanis to use the break in

proceedings to decide whether they intended to apply for asylum in the United States

or to proceed with their request for voluntary departure. 

When the deportation proceedings resumed in January 1991, the Sultanis'

attorney stated that she had spoken with Australian authorities and those authorities

confirmed that the Sultanis were resettled in Australia and that they could maintain

their status in Australia by properly renewing their official documents. The Sultanis

declined to apply for asylum in the United States and instead reiterated their request

for voluntary departure, assuring the IJ and the government that they would maintain

their status in Australia during the departure period. Based on these representations,

the government did not oppose voluntary departure, and the IJ granted the request.

The Sultanis were permitted to voluntarily depart the United States on or before

January 4, 1992, or face deportation to Australia or, in the alternative, Afghanistan.

Thereafter, the Sultanis received a number of extensions of their voluntary departure

date, the last one expiring on April 12, 1993, but they did not leave the United States.
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Beejan, Mariam, and Ahmad Wasim were placed in removal proceedings in

2003. They filed individual applications for asylum, withholding of removal, and

relief under the CAT, and their cases were consolidated with their parents' case. 

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The Sultanis renewed their status in Australia on several occasions—the last such

renewal expiring in August 1994—but they eventually allowed their status in

Australia to lapse.

On January 24, 2002, the Sultanis filed a motion to reopen the 1991 deportation

proceedings, claiming that they were entitled to asylum, withholding of removal, and

relief under the Convention Against Torture (CAT) based on their fear of persecution

in Afghanistan.1

 The IJ denied the motion to reopen, concluding that the Sultanis

were firmly resettled in Australia prior to their arrival in the United States and thus

were ineligible for asylum from Afghanistan. The IJ also denied on the merits the

Sultanis' applications for withholding of removal and relief under the CAT. 

The Sultanis appealed to the BIA, which remanded the case to the IJ to consider

whether the Sultanis had a "well-founded fear of persecution based upon the current

political situation" in Afghanistan. Decision of BIA, Apr. 1, 2003. On remand, the

IJ again concluded that the Sultanis had firmly resettled in Australia and thus were

ineligible for asylum in the United States, notwithstanding the current conditions in

Afghanistan. The IJ granted the Sultanis withholding of removal to Afghanistan and

ordered the family deported or removed to Australia or to any country other than

Afghanistan that would accept them. The BIA summarily affirmed the IJ's order. The

Sultanis appeal, arguing that the IJ improperly concluded that they were firmly

resettled in Australia, failed to follow the BIA's directive to consider their claim of

persecution in light of current conditions in Afghanistan, and ignored evidence

regarding conditions in Australia for Afghans. 

When the BIA summarily affirms an IJ's decision, we review the IJ's decision

as the final agency determination. Habtemicael v. Ashcroft, 370 F.3d 774, 779 (8th
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Cir. 2004). A finding of firm resettlement is a factual determination that we review

under the deferential substantial-evidence standard. Rife v. Ashcroft, 374 F.3d 606,

611–12 (8th Cir. 2004). Under this standard, the IJ's findings must be upheld unless

the alien demonstrates that the evidence he presented not only supports a contrary

conclusion but compels it. 8 U.S.C. § 1252(b)(4)(B) (stating that "the administrative

findings of fact are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary"). We review the IJ's legal conclusions de novo, giving

deference where appropriate to the agency's interpretation of the law it is charged with

administering. Fisher v. INS, 291 F.3d 491, 496 (8th Cir. 2002). 

The Sultanis first challenge the IJ's finding that they were firmly resettled in

Australia prior to entering the United States. While an alien who is unable or

unwilling to return to his country of origin "because of persecution or a well-founded

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

social group, or political opinion" may be granted asylum in this country, 8 U.S.C. §

1101(a)(42)(A), asylum is not available to an alien who was firmly resettled in another

country before coming to the United States, 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R.

§ 208.15. The firm-resettlement bar to asylum ensures that "asylum is not granted to

aliens who have found a haven from persecution" elsewhere. Ali v. Reno, 237 F.3d

591, 595 (6th Cir. 2001). 

"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 . . . ." 8 C.F.R. § 208.15. While the question of whether a third country

formally offered permanent resident status, citizenship, or some form of permanent

resettlement is "an important factor and, indeed, the proper place to begin the firm

resettlement analysis," in some cases direct evidence of such an offer may be difficult

or impossible to procure. Rife, 374 F.3d at 611. Consequently, other factors may be

considered to determine whether an alien's stay in a third country was more than
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simply "a stopover en route to refuge in the United States." Farbakhsh v. INS, 20 F.3d

877, 882 (8th Cir. 1994). See also Abdille v. Ashcroft, 242 F.3d 477, 487 (3d Cir.

2001), cited with approval in Rife, 374 F.3d at 611, and recognizing that other factors

may be considered if evidence of a resettlement offer is unobtainable. 

Here, the IJ concluded in both its order denying the Sultanis' motion to reopen

and in its decision on remand from the BIA that the Sultanis were firmly resettled in

Australia prior to arriving in the United States. While residing in Pakistan, the

Sultanis applied for and were granted refugee status in Australia. The Australian

government issued Certificates of Identity to the Sultanis that listed their status as

refugees and permitted indefinite renewal of that status. The Certificates of Identity

indicated that the Sultanis enjoyed "unrestricted" employment status and were

permitted to travel from Australia to the United States and back. Ahmad Wali

testified at the 1991 deportation proceedings that the family was in fact resettled in

Australia. During those proceedings, the Sultanis and their attorney consulted with

the Australian embassy to confirm that the family would be permitted to return to

Australia if they maintained their status in that country. Ahmad Wali assured the IJ

and the government that his family members had renewed their status in Australia in

the past and intended to maintain their status in the future. Other facts in the record

also support the IJ's conclusion that the Sultanis were firmly resettled in Australia.

While living in Melbourne, the family rented an apartment, Ahmad Wali obtained

employment, Beejan and Mariam attended public school, Saleha gave birth to a child,

the family traveled freely throughout the city, and the family received free medical

care and monetary assistance from the government. See Abdille, 242 F.3d at 487

(noting factors IJ may consider other than offer of permanent resettlement to resolve

issue of firm resettlement, but declining to apply those factors because record included

evidence of firm resettlement offer); see also Farbakhsh, 20 F.3d at 882 (considering

factors). The facts of the case constitute substantial evidence supporting the IJ's

conclusion that the Sultanis were firmly resettled in Australia. 
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Although a finding of firm resettlement in a third country prior to arrival in the

United States generally precludes a grant of asylum, the regulations provide two

exceptions to the firm-resettlement bar. If an alien establishes that his stay in a third

country was a "necessary consequence" of his flight from persecution, that he

remained in the third country only as long as necessary to secure onward travel, and

that he did not establish significant ties in the third country, asylum may be granted.

8 C.F.R. § 208.15(a). In addition, if an alien establishes that conditions of his stay in

the third country were "so substantially and consciously restricted" by the government

that he was not resettled, asylum may be granted. Id. § 208.15(b). In their motion to

reopen, the Sultanis alleged that because they were refugees from Afghanistan, the

Australian medical and educational communities were indifferent to Beejan's special

needs. According to the Sultanis, this treatment so restricted their stay in Australia

that they were not resettled in that country. As the IJ noted, however,

[e]ven if this were actually the policy of the Australian authorities, [the

Sultanis] have not shown that refugees with special needs were treated

any differently than other Australian residents with special needs, or that

Beejan was denied medical benefits normally available to other

residents. . . . Moreover, the fact that Beejan received better treatment [in

the United States] than in Australia does not indicate that he was denied

firm resettlement there.

Memorandum and Order of Apr. 19, 2002 at 6. The IJ also rejected the Sultanis'

claims that they remained in Australia only long enough to secure passage to the

United States and did not establish significant ties in that country. Substantial

evidence supports the IJ's conclusion that the Sultanis failed to establish that either of

the exceptions to the firm-resettlement bar applied.

The Sultanis next argue that the IJ failed to follow the BIA's directive on

remand. The BIA instructed the IJ to consider whether the Sultanis could establish

a well-founded fear of persecution based on the current political situation in
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Afghanistan. Because the IJ initially and on remand found that the Sultanis were

firmly resettled in Australia, as discussed above, the Attorney General is statutorily

barred from granting the Sultanis asylum in the United States based on conditions in

Afghanistan. 8 U.S.C. § 1158(b)(2)(A)(vi). And because of this statutory bar, the IJ

was not required to consider whether the Sultanis could establish that they qualified

for asylum from Afghanistan. On account of their firm resettlement in Australia, the

Sultanis could not be granted asylum from Afghanistan even if they could establish

that they had suffered persecution in the past or would suffer persecution in the future

in that country. Asylum from an alien's country of origin is not available if the alien

was firmly resettled in a third country before entering the United States. Id.; Diallo

v. Ashcroft, 381 F.3d 687, 692 (7th Cir. 2004) ("If the doctrine of firm resettlement

sounds the death knell on the asylum-seeker's claim, there is simply no need to

continue on to determine whether an asylum-seeker was the victim of past persecution

or has a well-founded fear of future persecution.").

Furthermore, the possibility that the Sultanis may not be permitted to return to

Australia because they allowed their status in that country to expire is irrelevant to the

finding that they were firmly resettled in Australia. The firm-resettlement bar focuses

on the Sultanis' status prior to their arrival in the United States. See 8 U.S.C.

§ 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15. As the Tenth Circuit held in Abdalla v. INS,

43 F.3d 1397, 1400 (10th Cir. 1994), a finding of firm resettlement is not "affected by

the possibility that by terminating his [third country] residence permit . . . [an alien]

may have jeopardized his entitlement to resume residence in that country through his

extended (and illegal) stay in the United States." This rule prohibits an alien from

"bootstrapping an asylum claim simply by unilaterally severing his existing ties to a

third country after arriving in the United States." Id.; see also Firmansjah v. Gonzales,

424 F.3d 598, 603 (7th Cir. 2005) (noting that an alien's failure to renew her resident

status in Singapore did not preclude a finding that she was firmly resettled in that

country prior to entering the United States); Ali, 237 F.3d at 596 (concluding that

"Danish authorities' declaration that they are no longer obligated to accept [the alien]
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into their country does not undermine the [BIA]'s finding of firm resettlement" in

Denmark); Vang v. INS, 146 F.3d 1114, 1117 (9th Cir. 1998) (holding that the fact

that an alien permitted his status in a third country to expire after entering the United

States does not impact finding of firm resettlement); Yang v. INS, 79 F.3d 932, 939

(9th Cir.) (finding firm resettlement despite aliens' claims that they would no longer

be able to return to country of firm resettlement due to expiration of travel

documents), cert. denied, 519 U.S. 824 (1996). The Sultanis' argument that the

Australian government might not permit them re-entry now that the family has

allowed their status in that country to expire is irrelevant to the IJ's finding that the

Sultanis were firmly resettled in Australia prior to their arrival in the United States.

Finally, the Sultanis argue that the IJ erred by failing to consider evidence they

submitted regarding conditions for Afghans in Australia. Although the Sultanis may

not be granted asylum from Afghanistan because they were firmly resettled in

Australia, they may be granted relief from removal to Australia if they carry their

burden of proving that they qualify for any such relief. See Rife, 374 F.3d at 612. In

their motion to reopen the 1991 deportation proceedings, the Sultanis argue that the

Australian government has established a policy of repatriating Afghan refugees. The

Sultanis did not argue, however, that this—or any other—alleged policy of the

Australian government supported relief from removal to Australia. Instead, the

Sultanis submitted their evidence regarding conditions in Australia in support of their

contention that their stay in that country was so substantially and consciously

restricted by the government that they could not be considered firmly resettled. Not

surprisingly, the IJ addressed the evidence in this context and found it unavailing.

Although it is far from clear, the Sultanis now appear to be arguing that the conditions

for Afghans in Australia have deteriorated to such a degree that the family should be

permitted to remain in the United States rather than be removed to Australia. These

arguments have yet to be addressed by the BIA. Failure to raise an issue before the

agency constitutes a failure to exhaust administrative remedies and deprives this court

of jurisdiction to hear the matter. See Ateka v. Ashcroft, 384 F.3d 954, 957 (8th Cir.
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2004); Halabi v. Ashcroft, 316 F.3d 807, 808 (8th Cir. 2003) (per curiam) (declining

to address arguments regarding alien's recent marriage and its effect on his

immigration status because he had not exhausted his administrative remedies). The

Sultanis did not argue for relief from removal to Australia when they appeared before

the IJ or when they filed their brief with the BIA. It follows that we do not have

jurisdiction to review this issue. 

We conclude that substantial evidence on the record supports the IJ's

determination that the Sultanis were firmly resettled in Australia and thus not entitled

to asylum in the United States. Accordingly, we deny the petition for review.

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