## Facts

- Vinodh Parsad Maharaj and his family were Indo-Fijian citizens of Fiji who alleged persecution tied to ethnic and political unrest.
- The family fled Fiji to Canada and lived there for about four years.
- While in Canada, they worked, had a child, and received public benefits including health coverage; the children attended free public school.
- They applied for refugee protection in Canada but left before the application was adjudicated.
- The family then entered the United States on visitor visas, overstayed, and applied for asylum, withholding of removal, and Convention Against Torture (CAT) relief.
- An Immigration Judge (IJ) denied asylum, finding the family “firmly resettled” in Canada based largely on their multi-year residence, ability to work, benefits, and pending Canadian refugee application; the BIA affirmed.

## Issues

1. What burden-shifting framework governs the “firm resettlement” bar to asylum under 8 C.F.R. §§ 208.13(c)(2)(i)(B) and 208.15, including whether the government must first produce evidence of an “offer” of permanent resettlement.
2. Whether the existing record established that Canada offered the family permanent resident status, citizenship, or another type of permanent resettlement within the meaning of the regulation.
3. Whether, on remand, the agency must reconsider asylum eligibility in light of alleged changed country conditions in Fiji.

## Decision

- The Ninth Circuit (en banc) vacated the prior panel disposition and clarified the governing burden allocation for the firm-resettlement bar.
- The court held the government bears an initial burden of production to make a prima facie showing of firm resettlement by producing evidence of an offer of permanent resettlement in a third country.
- If the government meets that showing, the burden shifts to the applicant to prove a regulatory exception under 8 C.F.R. § 208.15 applies.
- The court concluded the record did not contain sufficient evidence that Canada made (or that the family received) an offer of permanent resettlement; work authorization, benefits, and a pending refugee claim did not conclusively establish an offer.
- The petition for review was granted in part and denied in part, and the case was remanded to the agency to develop the record and apply the clarified framework, including consideration of country-conditions issues as appropriate.

## Legal Principles

- Under 8 C.F.R. § 208.15, “firm resettlement” requires evidence the applicant entered a third country with, or while there received, an offer of permanent resident status, citizenship, or another type of permanent resettlement.
- The government must first produce evidence of such an offer before the firm-resettlement bar may be applied.
- After a prima facie showing, the applicant must prove an exception under § 208.15, including that the stay was only a necessary and limited step in flight without significant ties, or that the third country imposed substantially restrictive conditions such that the applicant was not, in fact, resettled.
- A multi-year stay in a third country, employment authorization, and receipt of public benefits may be relevant but do not alone establish an offer of permanent resettlement.

## Conclusion

The Ninth Circuit required DHS to produce evidence of an offer of permanent resettlement before barring asylum on firm-resettlement grounds, found the record inadequate to show such an offer in Canada, and remanded for further fact-finding and reconsideration under the proper burden-shifting framework.


Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006)