09-18 55 -ag

Shahabdeen v. Holder BIA A bra ms,IJ A099 927 169 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARYO RDER 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. 242 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 1 0 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 1 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 2 is GRANTED. 1 3 Mohamed Shifan Mohamed Shahabdeen, a native and citizen 1 4 of Sri Lanka, seeks review of an April 9, 2009 order of the 1 5 BIA, affirming the November 7, 2007 decision of Immigration 1 6 Judge (“IJ”) Steven R. Abrams, which denied his application 1 7 for asylum, granted withholding of removal to Sri Lanka, and 1 8 declined to reach his request for relief under the 1 9 Convention Against Torture (“CAT”). In re Mohamed Shifan 20 Mohamed Shahabdeen , No. A099 927 169 (B.I.A. Apr. 9, 2009), 21 aff’gNo. A099 927 169 (Immig. Ct. N.Y. City Nov. 7, 2007). 2 2 We assume the parties’ familiarity with the underlying facts 2 3 and procedural history in this case. 2 4 Under the circumstances of this case, we review both 2 5 the BIA’s and the IJ’s decisions. See Yan Chen v. Gonzales , 2 6 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards 2 7 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 1 0 this test, the agency may look beyond the presence of a 1 1 formal offer of permanent residence from a third country and 1 2 examine the “totality of the alien’s circumstances” to 1 3 determine whether the applicant has found an “alternative 1 4 place[] of refuge abroad.” Id; see also Jin Yi Liao v. 15 Holder, 558 F.3d 152, 157-58 (2d Cir. 2009). Factors the 1 6 agency may consider include: “whether [the applicant] 1 7 intended to settle in [the country] when he arrived there, 1 8 whether he has family ties there, whether he has business or 1 9 property connections that connote permanence, and whether he 2 0 enjoyed the legal rights–such as the right to work and enter 2 1 and leave the country at will–that permanently settled 2 2 persons can expect to have.” Sall , 437 F . 3d at 235. 2 3 Here, the agency found that Shahabdeen had resettled inWe 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 1 0 difficulty renewing it, and that his continued ability to 1 1 remain in the U.A.E. was entirely dependent on his continued 1 2 employment. Although Shahabdeen’s brother lived in the 1 3 U.A.E., he was also a temporary worker. Finally, the agency 1 4 failed to discuss Shahabdeen’s testimony that the U.A.E. 1 5 does not offer citizenship, permanent residence, or asylum 1 6 to non-nationals, and thus, as a temporary resident of that 1 7 country, he was not guaranteed safety from persecution. * 1 8 While Shahabdeen further argues that he qualifies for 1 9 an exception to the statutory bar to asylum for firm5 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 1 0 would face persecution if returned to Sri Lanka, remand is 1 1 warranted for reconsideration of the record evidence and of 1 2 Shahabdeen’s eligibility for asylum.

For the foregoing reasons, the petition for review is 13 1 4 GRANTED. As we have completed our review, any stay of 1 5 removal that the Court previously granted in this petition 1 6 is VACATED, and any pending motion for a stay of removal in 1 7 this petition is DISMISSED as moot. Any pending request for 1 8 oral argument in this petition is DENIED in accordance with 1 9 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 0 Circuit Local Rule 34.1(b). 2 1 FOR THE COURT: 2 2 Catherine O’Hagan Wolfe, Clerk 23 24