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Etienne Tchitchui v. Eric H. Holder

September 19, 2011

ETIENNE TCHITCHUI, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL RESPONDENT.



Per curiam.

10-1953-ag

Tchitchui v. Holder

Argued: May 16, 2011

Before: CABRANES, RAGGI, Circuit Judges, and RESTANI, Judge.*fn1

Etienne Tchitchui petitions for review of an April 13, 2010 order of the Board of Immigration Appeals affirming a June 5, 2008 decision of the Immigration Judge denying him asylum, but granting his application for withholding of removal. Tchitchui argues that the IJ erred in finding that he had been "firmly resettled" in a third country before applying for asylum in the United States. We DENY Tchitchui's petition for review.

An alien's "firm resettlement" in a third country prior to arrival in the United States bars the alien from obtaining asylum here. See 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.15. On this petition for review of an order of removal, we are asked to consider whether the government's prima facie showing of firm resettlement may be rebutted by an alien's showing that his ties to the third country into which he fled before coming here were formed before his last flight from persecution. See 8 C.F.R. § 208.15(a). We concluded that firm resettlement is determined from the totality of the circumstances, and that even ties formed in the third country prior to an alien's last flight from persecution are relevant to that determination. Accordingly, we deny this petition for review.

The following facts, derived from findings made by the Immigration Judge ("IJ") at the asylum hearing, are undisputed before this court. Etienne Tchitchui, a thirty-nine year old native and citizen of Cameroon, is openly a member of the Social Democratic Front ("SDF"), the main opposition to the ruling party, the Cameroon People's Democratic Movement. In the late 1990s, Tchitchui's family members, who were concerned about his association with the SDF, encouraged him to leave Cameroon. In 1999, Tchitchui accepted his uncle's offer to finance his relocation and went to Chile, where he resided for a year and a half while studying Spanish. In 2001, Tchitchui traveled directly from Chile to Guatemala and opened an internet cafe. He remained in Guatemala for approximately a year before returning to Cameroon, so that he could support the SDF's efforts in the upcoming 2002 elections. Tchitchui arrived in Cameroon in May 2002, but within four months, his family convinced him to leave. In September 2002, Tchitchui returned to Guatemala, where he continued to operate his small business. Tchitchui remained in Guatemala for nearly three years. During this time, he sold his internet cafe for a profit, opened a restaurant, and obtained permanent resident status. Sometime in 2005, Tchitchui visited his family in Cameroon and attempted to convince them that he should move back to that country. As a result of the increasingly tense political climate in Cameroon, however, he was unable to gain support for his plan. Thus, Tchitchui returned to Guatemala and continued his life there.

In December 2005, Tchitchui returned to Cameroon for three weeks. On January 13, 2006, he and his family were seized by the police. Tchitchui was detained for four days, during which time he was repeatedly beaten by the officers, who indicated that their actions were a result of his affiliation with the SDF. Upon his release, Tchitchui returned to Guatemala, where he remained for approximately eight weeks. During this time, he sold his restaurant business and applied to a culinary program in the United States. On March 25, 2006, Tchitchui legally entered the United States as a non-immigrant visitor with authorization to remain for a temporary period of time.

Tchitchui overstayed his visa, so that in May 2007, the Department of Homeland Security ("the government") charged Tchitchui with removability pursuant to the Immigration and Nationality Act. Tchitchui responded by applying for asylum and withholding of removal. Upon consideration of his application, the IJ denied Tchitchui asylum, concluding that he was mandatorily barred as he had firmly resettled in Guatemala prior to arriving in the United States, but granted him withholding of removal to Cameroon. Tchitchui appealed, but the Board of Immigration Appeals ("BIA") affirmed the IJ's decision. Tchitchui now petitions for review.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 8 U.S.C. § 1252(b). In an immigration case, "[w]here an issue involves the application of law to undisputed fact, we review the issue de novo . . . ."

Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008). In the event that "the BIA adopts the IJ's reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA." Dobrova v. Holder, 607 F.3d 297, 300 (2d Cir. 2010) (internal quotation marks omitted). "While the BIA's interpretation of immigration statutes is generally entitled to Chevron deference, interpretations in non-precedential unpublished BIA decisions, as in the instant case, are not so entitled."*fn2 Id.

DISCUSSION

The Immigration and Nationality Act provides that asylum "may" be granted "to an alien who has applied for asylum . . . if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee." 8 U.S.C. § 1158(b)(1)(A); see Liao v. Holder, 558 F.3d 152, 157 (2d Cir. 2009). The act, however, also places a mandatory bar on the grant of asylum if an applicant "was firmly resettled in another country prior to arriving in the United States." 8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 208.13(c)(2)(i)(B); Liao, 558 F.3d at 157; see Salazar v. Ashcroft, 359 F.3d 45, 49 (1st Cir. 2004). The regulations provide a definition of firm resettlement, stating that "[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or ...


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