09-1855-ag

Shahabdeen v. Holder

BIA

Abrams, IJ

A099 927 169

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 27 day of January, two thousand ten. th

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 MOHAMED SHIFAN MOHAMED SHAHABDEEN,

14 Petitioner, 

15

16 v. 09-1855-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Benjamin B. Xue, New York, New York.

24
2

1 FOR RESPONDENT: Tony West, Assistant Attorney

2 General, Civil Division; M. Jocelyn

3 Lopez Wright, Senior Litigation

4 Counsel; Kristin K. Edison,

5 Attorney, Office of Immigration

6 Litigation, United States Department

7 of Justice, Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is GRANTED.

13 Mohamed Shifan Mohamed Shahabdeen, a native and citizen

14 of Sri Lanka, seeks review of an April 9, 2009 order of the

15 BIA, affirming the November 7, 2007 decision of Immigration

16 Judge (“IJ”) Steven R. Abrams, which denied his application

17 for asylum, granted withholding of removal to Sri Lanka, and

18 declined to reach his request for relief under the

19 Convention Against Torture (“CAT”). In re Mohamed Shifan

20 Mohamed Shahabdeen, No. A099 927 169 (B.I.A. Apr. 9, 2009),

21 aff’g No. A099 927 169 (Immig. Ct. N.Y. City Nov. 7, 2007). 

22 We assume the parties’ familiarity with the underlying facts

23 and procedural history in this case.

24 Under the circumstances of this case, we review both

25 the BIA’s and the IJ’s decisions. See Yan Chen v. Gonzales,

26 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards

27 of review are well-established. See 8 U.S.C. 
3

1 § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90,

2 95 (2d Cir. 2008). 

3 In denying Shahahbdeen’s application for asylum, the

4 agency concluded that he was firmly resettled in Dubai,

5 United Arab Emirates (“U.A.E.”) prior to his arrival in the

6 United States. 8 C.F.R. § 1208.15. We have held that in

7 determining the issue of firm resettlement, the agency

8 should apply a totality of the circumstances test. See Sall

9 v. Gonzales, 437 F.3d 229, 232-33 (2d Cir. 2006). Under

10 this test, the agency may look beyond the presence of a

11 formal offer of permanent residence from a third country and

12 examine the “totality of the alien’s circumstances” to

13 determine whether the applicant has found an “alternative

14 place[] of refuge abroad.” Id; see also Jin Yi Liao v.

15 Holder, 558 F.3d 152, 157-58 (2d Cir. 2009). Factors the

16 agency may consider include: “whether [the applicant]

17 intended to settle in [the country] when he arrived there,

18 whether he has family ties there, whether he has business or

19 property connections that connote permanence, and whether he

20 enjoyed the legal rights–such as the right to work and enter

21 and leave the country at will–that permanently settled

22 persons can expect to have.” Sall, 437 F.3d at 235. 

23 Here, the agency found that Shahabdeen had resettled in
We also note the argument Shahabdeen raised in his *

brief before the BIA that foreign workers in Dubai have

few of the same rights as U.A.E. citizens, including

redress for employment grievances and rights to own real

property.

4

1 the U.A.E. because he lived there for three and a half

2 years, had work authorization, employment, and lodging at a

3 hotel, was able to renew his residence permit, and had

4 family ties to the country. However, we find that the

5 agency erred by failing to consider material evidence

6 weighing against this conclusion. See Jorge-Tzoc v.

7 Gonzales, 435 F.3d 146, 150 (2d Cir. 2006). Specifically,

8 the agency neglected to consider that Shahabdeen’s residence

9 permit was valid for only a temporary period, that he had

10 difficulty renewing it, and that his continued ability to

11 remain in the U.A.E. was entirely dependent on his continued

12 employment. Although Shahabdeen’s brother lived in the

13 U.A.E., he was also a temporary worker. Finally, the agency

14 failed to discuss Shahabdeen’s testimony that the U.A.E.

15 does not offer citizenship, permanent residence, or asylum

16 to non-nationals, and thus, as a temporary resident of that

17 country, he was not guaranteed safety from persecution.*

18 While Shahabdeen further argues that he qualifies for

19 an exception to the statutory bar to asylum for firm
5

1 resettlement, he failed to raise this issue in his appeal to

2 the BIA. Because the Government has raised this failure to

3 exhaust in its brief to this Court, we decline to consider

4 this issue. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

5 104, 119-20, 124 (2d Cir. 2007). 

6 Ultimately, the agency erred by failing to consider

7 material evidence relevant to whether Shahabdeen was firmly

8 resettled in the U.A.E. See Jorge-Tzoc, 435 F.3d at 150. 

9 Because the IJ found that Shahabdeen established that he

10 would face persecution if returned to Sri Lanka, remand is

11 warranted for reconsideration of the record evidence and of

12 Shahabdeen’s eligibility for asylum.

13 For the foregoing reasons, the petition for review is

14 GRANTED. As we have completed our review, any stay of

15 removal that the Court previously granted in this petition

16 is VACATED, and any pending motion for a stay of removal in

17 this petition is DISMISSED as moot. Any pending request for

18 oral argument in this petition is DENIED in accordance with

19 Federal Rule of Appellate Procedure 34(a)(2), and Second

20 Circuit Local Rule 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

24