Kwongk Choi Cheong v. Gonzales

concurring in part and dissenting in part.

I am constrained to agree that Ali v. Ashcroft, 394 F.3d 780 (9th Cir.2005), controls, but write separately to note that the result is compels in this case--and thus, Ali itself-can’t be right given the Cheongs’ nine-year settlement in Panama. They owned and operated a business in Panama. They have three Panamanian-citizen children. Relatives still live in Panama undisturbed. The Cheongs themselves returned to Panama after their brief sojourn in China and at least Mrs. Cheong and the rest of the family lived there without incident for a year. To be required to hold in light of all this that the Cheongs were not firmly resettled in Panama defies common sense and Cheo v. INS, 162 F.3d 1227 (9th Cir.1998), which Ali effectively wrote off the books.

Beyond this, I would remand for the BIA to determine eligibility for asylum. The BIA did not review the immigration judge’s decision to withhold removal and should have opportunity under INS v. Ventura, 537 U.S. 12, 17 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002). I disagree that Ge v. Ashcroft, 367 F.3d 1121 (9th Cir. 2004), allows us to decide that the Cheongs established past persecution and…

MEMORANDUM *

Petitioner Kwongk Choi Cheong and his wife Xi Lain Chen (citizens of China) and their three children (citizens of Panama) appeal the decision of the Bureau of Immigration Appeals, finding the family barred from seeking asylum in the United States because they had firmly resettled in Panama.

We grant the petition because the BIA improperly applied the Cheo presumption of resettlement in this case. “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 . Firm resettlement precludes a grant of asylum. 8 U.S.C. § 1158 (b)(2)(A)(vi).

A petitioner living undisturbed in a third country for a sufficient period of time gives rise to a rebuttable presumption that he or she is firmly resettled in that third country. See Cheo v. INS, 162 F.3d 1227 (9th Cir.1998). In Alt v. Ash *727 croft, 394 F.3d 780 (9th Cir.2005), however, we explained “that the plain language and structure of the regulation require that an asylum applicant be offered…