Nadim Hanna v. Eric Holder, Jr.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0016p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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NADIM SHAKOURI HANNA,

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Petitioner,

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No. 12-4272

v.

,

>

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Respondent. -

ERIC H. HOLDER, JR.,

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On Petition for Review of a Final Order of the

Board of Immigration Appeals.

No. A 46 737 768.

Argued: October 9, 2013

Decided and Filed: January 17, 2014

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Faten Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER,

Farmington Hills, Michigan, for Petitioner. James E. Grimes, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Faten

Tina Shuker, LAW OFFICES OF FATEN TINA SHUKER, Farmington Hills, Michigan,

Russell Reid Abrutyn, MARSHAL E. HYMAN & ASSOC., PC, Troy, Michigan, for

Petitioner. James E. Grimes, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Nadim Shakouri

Hanna petitions for review of an order of the Board of Immigration Appeals (“BIA”).

Hanna was convicted of felonious assault under Mich. Comp. Laws § 750.82 and

conceded removability through his first counsel. Upon threat of removal from the

1

No. 12-4272 Hanna v. Holder Page 2

United States, Hanna applied for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”) and under the Convention Against Torture

(“CAT”). The Immigration Judge (“IJ”) ordered Hanna removed and denied his

applications for withholding of removal, and the BIA adopted and affirmed the IJ’s

decision. The BIA then reopened Hanna’s asylum application based on changed

conditions for Chaldean Christians in Iraq. On remand, Hanna, represented by new

counsel, contested his removability and pursued claims for asylum and withholding of

removal. The IJ granted Hanna’s application for withholding of removal but held Hanna

ineligible for asylum because he firmly resettled in Canada before entering the United

States. The IJ also held that Hanna was bound to his first attorney’s concession of

removability. The BIA affirmed. On appeal to this Court, Hanna maintains that he is

not removable and that the firm resettlement bar does not foreclose his asylum

application. For the reasons set forth below, we grant Hanna’s petition for review,

reverse the BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his

attorney’s concession of removability. Because the BIA’s determination that Hanna is

removable is predicated on this concession, we reverse the finding that Hanna is

removable. We remand to the BIA to determine, consistent with this opinion, whether

Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a crime involving moral

turpitude. Separately, we affirm the BIA’s determination that Hanna is ineligible for

asylum.

I.

Hanna, born on April 10, 1979, is a native and citizen of Iraq. Hanna and his

family are Chaldean Christians. Hanna left Iraq in February 1990 with his father,

mother, four sisters, and one brother. The family initially traveled to Greece, where they

remained until December 1991. From there, they traveled onward to Canada and entered

with “landed immigrant” status. As landed immigrants, Hanna and his family were

considered permanent residents of Canada with permission to live and work. In 1993,

Hanna’s parents obtained permanent resident status in the United States through a

petition filed by Hanna’s sister, who previously had entered and obtained citizenship.

No. 12-4272 Hanna v. Holder Page 3

In May 1993, Hanna entered the United States as a nonimmigrant visitor. Hanna’s

parents petitioned for permanent resident status for their remaining children, including

Hanna. While Hanna’s petition was pending, he resided in Ontario, Canada, attending

Catholic middle school there. Hanna also resided with his parents in the United States

for significant amounts of time, sometimes the majority of the year, as a nonimmigrant

visitor. By traveling to and from Canada and overstaying the visitor’s visas he received

upon entering the United States, Hanna attended high school in the United States,

worked at the family business, and obtained a Michigan driver’s license. During this

time, Hanna retained his landed immigrant status in Canada. Hanna was admitted as a

lawful permanent resident to the United States on November 17, 1998. Subsequently,

Hanna’s Canadian permanent resident status expired. See Immigration and Refugee

Protection Act of Canada, S.C. 2001, c. 27, §§ 28, 41(b) (Can.).

On November 28, 1996, Hanna, then seventeen years old, was cruising in a

parking lot in Southfield, Michigan, while waiting for friends who were attending a

nearby party. The attendant valet, Johny Asmer, told Hanna to stop cruising. Ensuing

words were exchanged, which escalated into shouting. While exiting the parking lot in

his car, Hanna, holding an opened, three-inch, folding knife, threatened to cut Asmer.

Hanna was arrested as a result of this incident, but the charges were twice dropped after

Asmer failed to appear in court. In 1999, however, the State of Michigan reinstated the

charges from the parking lot altercation. Hanna was charged with felonious assault, in

violation of Mich. Comp. Laws § 750.82, and driving with a suspended license. On

March 31, 2000, the Sixth Judicial Circuit Court for Oakland County, Michigan, a

Michigan trial court, found that Hanna committed these offenses after his seventeenth

but before his twenty-first birthday. The Michigan court assigned Hanna to Youthful

Trainee Status and sentenced him to thirty days in the county jail and two years of

probation. As result of the court order, the government commenced removal

proceedings against Hanna by filing of a Notice to Appear (“NTA”), dated January 8,

2002. The government alleged in the NTA that Hanna was convicted on March 31,

2000, for the offense of felonious assault, committed on or about November 28, 1996,

and, for that offense, a sentence of one year or longer may be imposed. The government

No. 12-4272 Hanna v. Holder Page 4

subsequently filed a Form I-261, specifically charging Hanna with an admission date of

May 1993 as a nonimmigrant visitor. The government charged Hanna as subject to

removal, having been convicted of a crime involving moral turpitude (“CIMT”) within

five years after admission and for which a sentence of one year or longer may be

imposed. See 8 U.S.C. § 1227(a)(2)(A)(i).

Removal proceedings were conducted on April 18, 2003, July 25, 2003, and

November 9, 2005, at the Immigration Court in Detroit. Hanna was initially represented

by his attorney, Nasir Daman. On April 18, 2003, the Michigan court order was

admitted into evidence as a record of Hanna’s conviction for felonious assault. Then,

on July 25, 2003, Hanna, through his counsel, admitted the charges in the NTA,

including the factual allegation that Hanna was convicted of the offense of felonious

assault. Hanna, through his counsel, also conceded his removability under 8 U.S.C.

§ 1227(a)(2)(A)(i). The IJ designated Iraq as the country of removal. Further, at the

July 25 hearing, Hanna filed I-589 applications for asylum and for withholding of

removal under the INA and protection under the CAT. Hanna’s withholding application

was supported by his claim that being a Chaldean Christian placed him at risk of harm

in Iraq. At the November 9 hearing, Hanna conceded ineligibility for asylum resulting

from his failure to file an asylum application within one year of entering the United

States. See 8 U.S.C. § 1158(a)(2)(B). Hanna and his father then testified in support of

his application for withholding of removal, averring that Hanna would be subject to

grave danger if removed to Iraq. The IJ denied Hanna’s applications for relief and

ordered Hanna removed to Iraq, with an alternative to Canada, on the charge contained

in the NTA.

Hanna appealed the IJ’s denial of asylum and withholding of removal. On May

30, 2007, the BIA adopted and affirmed the IJ’s decision and declined to remand. Hanna

subsequently moved to reopen removal proceedings on April 28, 2008, contending

entitlement to reopening under the Refugee Crisis in Iraq Act of 2007, Pub. L. No.

110–181, tit. XII, submit. C, § 1247, 122 Stat. 3 (2008) (codified at 8 U.S.C. § 1157),

because conditions in Iraq had deteriorated for Chaldean Christians. The BIA granted

No. 12-4272 Hanna v. Holder Page 5

this motion on October 30, 2008, finding Hanna produced previously unavailable

evidence of significantly worsening conditions in Iraq for its minority Christian

populations. The BIA reopened to allow Hanna to apply for asylum based on his status

as a Chaldean Christian and remanded to the IJ. Hanna reapplied for asylum on May 3,

2010.

After this point, Hanna was represented by Faten Tina Shuker. Continued

removal proceedings were conducted on January 8, 2009, May 3, 2010, and October 26,

2010. On remand, Hanna presented several hundred pages of documentary evidence,

and Hanna and his father testified in support of his applications. The hearings focused

on three issues: whether Hanna’s conviction was for a particularly serious crime

sufficient to preclude relief; whether Hanna merited asylum as a matter of discretion; and

whether Hanna firmly resettled in Canada before immigrating to the United States.

Hanna also raised the issue of his removability.

The IJ entered her decision on October 26, 2010. The IJ found Hanna and his

father credible with respect to a well-founded fear of Hanna’s future persecution as a

Chaldean Christian and held that Hanna’s offense of conviction was not a particularly

serious crime. The IJ accordingly granted Hanna’s application for withholding of

removal under 8 U.S.C. § 1231(b)(3) and held Hanna’s claim for protection under the

CAT moot. With respect to asylum, the IJ noted that an alien who “firmly resettled” in

another country before arriving in the United States is not eligible for asylum. See

8 U.S.C. § 1158(b)(2)(A)(vi); 8 C.F.R. § 1208.13(c)(2)(ii). The IJ held that the

government proffered sufficient evidence showing Hanna “firmly resettled” in Canada,

that Hanna failed to provide evidence sufficient to rebut this contention, and that Hanna

is statutorily ineligible for asylum under 8 U.S.C. § 1158(b)(2)(A)(vi). As to

removability, the IJ noted that Hanna, through counsel, previously admitted all the

factual allegations contained within the NTA and conceded the charge of removability.

The IJ therefore held that Hanna’s removability was established by the requisite clear

and convincing evidence.

No. 12-4272 Hanna v. Holder Page 6

Hanna again appealed to the BIA, arguing that the IJ improperly placed the

burden on him to show that he had not firmly resettled and that the firm resettlement bar

did not apply because he entered the United States as an immigrant, not as a refugee in

flight from persecution. In the alternative, Hanna argued that the IJ erred in finding him

removable since the Michigan statute of felonious assault encompasses CIMT and non-

CIMT offenses and his specific offense is not a CIMT. Hanna subsequently filed a

separate motion to remand and terminate, arguing that his conviction had been vacated

and that his case had been set for a new trial. Hanna later withdrew this motion after the

Michigan Court of Appeals reinstated his conviction. See People v. Hanna, No. 304798,

2012 WL 833294 (Mich. Ct. App. Mar. 13, 2012).

The BIA dismissed Hanna’s appeal on September 27, 2012. The BIA adopted

and affirmed the IJ’s determination that the government presented prima facie evidence

that Hanna had an offer of firm resettlement before entering the United States. The BIA

held that, once the government met its initial burden, the burden shifted to Hanna to

establish an exception under 8 C.F.R. § 1208.15(a) or (b) and that Hanna had not

successfully rebutted the government’s firm resettlement showing. Further, the BIA

rejected Hanna’s claim that he is not subject to the firm resettlement bar because his

application for asylum is based on changed country conditions occurring after his

admission to the United States. The BIA found that Hanna’s circumstance fits the plain

language of 8 U.S.C. § 1158(b)(2)(A)(vi) and noted the absence of any language

indicating that firm resettlement must be a consequence of fleeing persecution. The BIA

also noted that an alien is considered to be firmly resettled if, prior to arrival in the

United States, he or she entered another country with, or while in that country received,

an offer of permanent resident status. See 8 C.F.R. § 1208.15. The BIA further found

that there is no temporal limitation or other indication that the resettlement must be

preceded by flight from persecution. As to Hanna’s removability, the BIA held Hanna’s

July 2003 concession of removability through counsel was binding. The BIA considered

the issue of Hanna’s removability resolved. Hanna filed a timely petition for review.

No. 12-4272 Hanna v. Holder Page 7

II.

This Court has “jurisdiction to review questions of law and constitutional claims”

arising from “‘removal orders of petitioners deemed removable for having committed

a [crime involving moral turpitude].’” Yeremin v. Holder, 707 F.3d 616, 621 (6th Cir.

2013) (alteration in original) (quoting Ruiz-Lopez v. Holder, 682 F.3d 513, 516 (6th Cir.

2012)). “We review the BIA’s conclusions of law de novo.” Marku v. Ashcroft,

380 F.3d 982, 986 (6th Cir. 2004) (citing Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir.

2004)). The determination of whether a conviction under a particular statute qualifies

as a crime involving moral turpitude is a question of law and thus is also subject to

judicial review. Yeremin, 707 F.3d at 621. “The BIA’s construction of ambiguous

statutory provisions—such as the term ‘crime involving moral turpitude’—is generally

entitled to Chevron deference.” Ruiz-Lopez, 682 F.3d at 516 (citing Kellermann v.

Holder, 592 F.3d 700, 702–03 (6th Cir. 2010)). “No deference is given, however, to the

BIA’s interpretation of a state criminal statute; that issue is reviewed de novo.” Id.

(quoting Serrato–Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009)).

This court also has jurisdiction to review the final decision of the BIA “affirming

the IJ’s denial of asylum.” Singh v. Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). “In

considering a petition for review of a decision of the Board of Immigration Appeals, we

review the Board’s legal determinations de novo and its factual findings under the

substantial evidence standard.” Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005)

(internal citations omitted). “In reviewing the factual determinations of the Board

regarding an alien’s eligibility for asylum and withholding of deportation, this court

must apply the substantial evidence standard of review.” Klawitter v. INS, 970 F.2d 149,

151 (6th Cir. 1992); see also Maharaj v. Gonzales, 450 F.3d 961, 967 (9th Cir. 2006) (en

banc) (“A finding of ‘firm resettlement’ is a factual determination that we review under

the deferential substantial evidence standard.”). The substantial evidence standard

requires this court to uphold the Board’s findings as long as they are “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); see also Klawitter, 970 F.2d at 151–52.

No. 12-4272 Hanna v. Holder Page 8

“‘To reverse under the substantial evidence standard, the evidence must be so

compelling that no reasonable factfinder could fail to find the facts were as the alien

alleged.’” Mostafa, 395 F.3d at 624 (quoting Rhodagholian v. Ashcroft, 335 F.3d 1003,

1006 (9th Cir. 2003)). Where the BIA “did not summarily affirm or adopt the IJ’s

reasoning and provided an explanation for its decision,” this Court “review[s] the BIA’s

decision as the final agency determination.” Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047

(6th Cir. 2007). “Where the Board adopts the IJ’s decision and supplements that

decision with its own comments, as in this case, we review both the BIA’s and the IJ’s

opinions.” Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011).

Hanna argues that he is not removable because his adjudication under Michigan’s

Holmes Youthful Trainee Act (“YTA”), Mich. Comp. Laws §§ 762.11–16, is neither a

“conviction” under the INA, nor a crime involving moral turpitude (“CIMT”). Hanna

acknowledges that in Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005), this court

determined that YTA adjudications are “convictions” under the INA, 8 U.S.C.

§ 1101(a)(48)(A). Hanna contends, however, that this Court should reexamine Uritsky

in light of three subsequent Supreme Court decisions: Lafler v. Cooper, 132 S. Ct. 1376,

1385 (2012); Judulang v. Holder, 132 S. Ct. 476 (2011); and Padilla v. Kentucky,

559 U.S. 356, 366–71 (2010). Hanna also contends that YTA adjudications are

analogous to determinations of juvenile delinquency under the Federal Juvenile

Delinquency Act (“FJDA”), 18 U.S.C. §§ 5031–42, and, like FJDA delinquency

determinations, should not be considered “convictions” under the INA.

Alternatively, Hanna contends that his offense is not a CIMT, that the

government has the burden to prove otherwise, and that the government cannot meet this

burden. Hanna argues that Michigan’s felonious assault statute, Mich. Comp. Laws

§ 750.82, is divisible, encompassing both CIMT and non-CIMT offenses. Relying on

Singh v. Holder, 321 F. App’x 473, 478–80 (6th Cir. 2009), Hanna argues that his

particular offense is not a CIMT and, hence, does not trigger removability under 8

U.S.C. § 1227(a)(2)(A)(i). We find that Hanna presented this claim to the BIA, and thus

No. 12-4272 Hanna v. Holder Page 9

we may review it here. See 8 U.S.C. § 1252(d)(1); Gor v. Holder, 607 F.3d 180, 185

(6th Cir. 2010).

The government responds that Hanna’s removability is established by his

concessions, through his first counsel, of the factual allegations contained in the NTA

and of removability at the July 25, 2003 hearing. According to the government, by

conceding removability, Hanna conceded that he is removable for having been convicted

of a CIMT. The government contends that this concession is a binding judicial

admission sufficient to establish Hanna’s removability and that the concession forecloses

Hanna’s challenges to removability.

Separate from the issue of his removability, Hanna argues that he is eligible for

asylum. The government responds that Hanna is ineligible for asylum under the firm

resettlement bar, 8 U.S.C. § 1158(b)(2)(A)(vi). Hanna rejoins that he qualifies for an

exception to the firm resettlement bar under 8 C.F.R. § 1208.15. The government denies

that Hanna falls within any such exception.

A.

In a removal proceeding, “petitioners are bound by the concessions of their

attorneys to the IJ unless they can show ineffective assistance of counsel or some other

egregious circumstances.” Gill v. Gonzales, 127 F. App’x 860, 862–63 (6th Cir. 2005);

see also Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986) (“Petitioners are

generally bound by the conduct of their attorneys, including admissions made by them,

absent egregious circumstances.”); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA

1986) (“Absent egregious circumstances, a distinct and formal admission made before,

during, or even after a proceeding by an attorney acting in his professional capacity

binds his client as a judicial admission.”). This court has yet to clarify those egregious

circumstances sufficient to relieve an alien of his counsel’s prejudicial admissions. The

BIA, however, clarified the meaning of “egregious circumstances” in Velasquez. See

19 I. & N. Dec. at 383. Building on Velasquez, other federal courts of appeals have

developed a framework to determine egregious circumstances. See, e.g., Santiago-

No. 12-4272 Hanna v. Holder Page 10

Rodriguez v. Holder, 657 F.3d 820, 831–36 (9th Cir. 2011); Hoodho v. Holder, 558 F.3d

184, 192 (2d Cir. 2009).

As a threshold matter, to establish egregious circumstances, an alien must argue

“that the factual admissions or concessions of [removability] were untrue or incorrect.”

Velasquez, 19 I. & N. Dec. at 383; see, e.g., Mai v. Gonzales, 473 F.3d 162, 167 (5th Cir.

2006) (reversing BIA’s denial of a motion to reopen, where alien’s prior attorney had

admitted NTA’s factual allegations that alien “strongly denied”); cf. Roman v. Mukasey,

553 F.3d 184, 187 (2d Cir. 2009) (rejecting that the government must submit evidence

of an alien’s prior conviction because the alien “does not allege that the admissions were

inaccurate”); Torres-Chavez v. Holder, 567 F.3d 1096, 1102 (9th Cir. 2009) (refusing

to permit alien to withdraw attorney’s tactical decision to admit alienage because

attorney “simply conceded that [client] was an alien, a fact that [client] has never

suggested is untrue”). Further, an alien’s argument that his attorney’s concessions were

incorrect must be supported by record evidence. See, e.g., Hulse v. Holder, 480 F.

App’x 23, 26 (2d Cir. 2012) (denying petition for review of BIA decision denying

withholding of removal because admission of procuring benefit by entering into

fraudulent marriage was “not contradicted by the record evidence”); Hoodho, 558 F.3d

at 192 (denying petition for review of BIA decision because “[w]here, as here, an IJ

accepts a concession of removability from retained counsel and that concession is not

contradicted by the record evidence, the circumstances are not ‘egregious’ in any

respect”).

Where an alien has argued that his or her counsel’s admission is incorrect and

that argument is supported by the record, two types of egregious circumstances justify

relieving the alien of his or her counsel’s prejudicial admissions. The first circumstance

concerns admissions that “were the result of unreasonable professional judgment.”

Velasquez, 19 I. & N. Dec. at 383; see also Santiago-Rodriguez, 657 F.3d at 834–36

(holding that BIA erred in not permitting alien to withdraw attorney’s admission where

such admission was made without any factual basis and constituted deficient

performance); In re Morales-Bribiesca, No. A047 770 293, 2010 WL 4500889, at *2

No. 12-4272 Hanna v. Holder Page 11

(BIA Oct. 18, 2010) (“[T]he respondent’s prior attorney admitted that she conceded the

respondent’s removability [for alien smuggling] without first speaking to the respondent

or discussing the factual allegations with the respondent . . . [and] given the

egregiousness of the representation, we do not deem the attorney’s admission binding

on the respondent.” (citing Velasquez, 19 I. & N. Dec. at 382)); In re Shafiee, No. A24

107 368, 2007 WL 1168488, at *1 (BIA Mar. 2, 2007) (granting motion to reopen and

holding that attorney’s concession of removability based on alien’s “insistence on

expediting a case is no excuse for failing to research and advise a client that there is no

sound basis for the charges”).

The second circumstance in which an alien should be relieved of an admission

of counsel is if binding the alien to that admission would “produce[ ] an unjust result.”

Velasquez, 19 I. & N. Dec. at 383. An inadvertent admission would fall into this

category. See, e.g., Ali v. Reno, 829 F. Supp. 1415, 1425 (S.D.N.Y. 1993) (holding, in

habeas corpus proceeding reviewing the rescission of permanent resident status, that

alien could not withdraw the prior concessions of counsel because “there has been no

showing that counsel’s concessions regarding rescission and excludability were

inadvertent, unfair or extraordinary”), aff’d, 22 F.3d 442 (2d Cir. 1994); cf. Cortez-

Pineda v. Holder, 610 F.3d 1118, 1122 n.2 (9th Cir. 2010) (refusing to bind the

government to a mistaken factual assertion regarding the alien’s entry date). So too

would a circumstance “where the propriety of an admission or concession has been

undercut by an intervening change in law.” In re Chavez-Mendoza, No. A90 542 948,

2005 WL 649052, at, *1 n.3 (BIA Feb. 2, 2005); see, e.g., Santiago-Rodriguez, 657 F.3d

at 833 (“Binding [petitioner] to the admission that he smuggled his brother . . . even after

[an intervening change in the law] would ‘produce[ ] an unjust result,’ if [petitioner] can

make a prima facie showing that his actions would not constitute smuggling under the

clarified, correct interpretation of the smuggling statute.” (quoting Velasquez, 19 I. & N.

Dec. at 383)); Huerta-Guevara v. Ashcroft, 321 F.3d 883, 886 (9th Cir. 2003)

(permitting alien to challenge removability despite concession because intervening

change in law meant alien was not removable).

No. 12-4272 Hanna v. Holder Page 12

Applying this framework, we relieve Hanna of his attorney’s July 25, 2003,

concession of removability. Hanna satisfies the threshold requirements for challenging

the binding effect of the prior admission: Hanna has contended and maintains the

concession of removability is incorrect because his crime did not involve moral

turpitude, and there is record evidence to support his position. Neither the charging

documents nor the record of conviction suggest that Hanna necessarily pled to facts

establishing that his offense is a CIMT. Cf. Wala v. Mukasey, 511 F.3d 102, 108 (2d Cir.

2007) (vacating BIA’s removal order because petitioner was not required to plead facts

establishing intent to commit a CIMT nor did his plea colloquy establish otherwise).

Other evidence in the record that an immigration court may consider suggests that

Hanna’s specific offense was not a CIMT. See Kellermann, 592 F.3d at 704 (noting that

if “the court finds that the statute of conviction criminalizes both conduct that does and

does not qualify as a CIMT, then the court should apply a more modified approach”

(citing In re Silva-Trevino, 24 I. & N. Dec. 687, 690 (A.G. 2008) (directing IJs to

consider any additional evidence deemed necessary to resolve accurately whether an

offense is a CIMT if the record of conviction is inconclusive))). For instance, on

remanded proceedings to determine whether to grant Hanna withholding of removal

from Iraq, the IJ made findings suggesting Hanna’s offense “fall[s] within the

apprehension-portion of the statute [that] would plainly stretch the concept of a CIMT.”

See Singh, 321 F. App’x at 480. After reviewing the record for the severity of the

offense, the IJ found that Hanna credibly testified that he was never in close proximity

of the individual and had no intention of attacking him. Further, the IJ held that Hanna’s

offense was not particularly serious and noted that it could not find Hanna was or is a

danger to the community.

Turning to the egregious circumstances under which an alien may be relieved of

a prior admission through counsel, the propriety of Hanna’s concession has been

undercut by an intervening change in law “produc[ing] an unjust result” if Hanna is

bound to the admission. See Velasquez, 19 I. & N. Dec. at 383. In Singh, the court

found that the Michigan statute under which Hanna was convicted, Mich. Comp. Laws

§ 750.82, is likely divisible. 321 F. App’x at 479–80. Under this statute,

No. 12-4272 Hanna v. Holder Page 13

a person who assaults another person with a gun, revolver, pistol, knife,

iron bar, club, brass knuckles, or other dangerous weapon without

intending to commit murder or to inflict great bodily harm less than

murder is guilty of a felony punishable by imprisonment for not more

than 4 years or a fine of not more than $2,000.00, or both.

Mich. Comp. Laws § 750.82(1). In Singh, the court analyzed this statute in detail:

The elements of this crime, as interpreted by Michigan courts, are: (1) an

assault, (2) with a dangerous weapon, and (3) with the intent to injure or

place the victim in reasonable fear or apprehension of an immediate

battery. People v. Lawton, 196 Mich. App. 341, 492 N.W.2d 810, 815

(1992). . . . The statute requires one of two unlawful intents: either an

intent to injure (i.e., an attempted battery) or an intent to place the victim

in apprehension of an immediate battery. In People v. Reeves, 458 Mich.

236, 580 N.W.2d 433, 436–37 (1998), the Michigan Supreme Court

explained that these two types of assault have different mental elements,

noting that, at early common law, only the attempted-battery variety of

assault was criminalized.

Singh, 321 F. App’x at 478. The Singh court reasoned that “[b]ecause the Michigan

statute essentially encompasses two distinct offenses—assault with intent to harm, and

assault with intent merely to cause apprehension of harm[,] we must determine whether

both constitute CIMTs.” Id. at 479. As the BIA had neither addressed whether Mich.

Comp. Laws § 750.82 is divisible nor considered the circumstances under which assault

crimes are CIMTs, the Singh court analyzed the Michigan statute for divisibility:

The apprehension variety of assault is less morally turpitudinous than the

attempted-battery variety, as it requires no intention to physically harm

another person. This is apparent from a simple example: Under the

Michigan statute, holding a baseball bat as if to strike someone with it

(with the intention of placing that person in fear of being struck by the

bat), and actually swinging the bat in a failed attempt to strike the person

both satisfy the statute, but the latter is clearly more inherently base, vile,

or depraved, and contrary to the accepted rules of morality than the

former. We can imagine a range of factual circumstances that would fall

within the apprehension-portion of the statute but would plainly stretch

the concept of a CIMT.

Id. at 479–80 (internal citations and quotation marks omitted). Because the Singh court

found Mich. Comp. Laws § 750.82 likely divisible and because the BIA had not

No. 12-4272 Hanna v. Holder Page 14

considered the distinction between offenses of assault with the intention to physically

harm another and offenses of assault with the intention to cause apprehension of harm,

the Singh court remanded the case for the BIA to determine whether “Singh’s assault

conviction under the particular Michigan statute is not a CIMT.” Id. at 480. On remand,

the BIA treated Mich. Comp. Laws § 750.82 as divisible and remanded to the IJ “to

make relevant findings of fact and enter a legal determination on the issue of whether the

respondent’s convictions for assault in violation of [the statute] . . . qualify as crimes

involving moral turpitude in the first instance that is consistent with the Sixth Circuit’s

decision described above.” In re Singh, No. A092 407 108 (BIA Oct. 19, 2009) (unpub.)

(citing Silva-Trevino, 24 I. & N. Dec. 687).

There has been “an intervening change in law” since Hanna’s attorney’s 2003

concession of removability. Chavez-Mendoza, 2005 WL 649052, at *1 n.3. We now

recognize Mich. Comp. Laws § 750.82 as divisible, and, as such, the statute

encompasses non-CIMT offenses. Binding Hanna to his 2003 admission—where there

has been an intervening change in the law as to the divisibility of his statute of

conviction, where Hanna argues that is offense is not a CIMT, and where his argument

is supported by record evidence that an immigration court may consider—would

“produce[] an unjust result.” Velasquez, 19 I. & N. Dec. at 383; see also Santiago-

Rodriguez, 657 F.3d at 833; Huerta-Guevara, 321 F.3d at 886. Accordingly, we relieve

Hanna of his attorney’s July 25, 2003, concession that he is removable, and we reverse

the BIA’s holding that this concession is binding. Because the BIA’s determination that

Hanna is removable is predicated upon this concession of removability, we reverse that

determination.

B.

Since Hanna is not bound by his attorney’s 2003 concession of removability, we

now address Hanna’s arguments that he is not removable. First, Hanna argues that he

is not removable because his YTA adjudication is not a “conviction” under 8 U.S.C.

§ 1101(a)(48)(A). This contention is unavailing. The INA defines “conviction” as

follows:

No. 12-4272 Hanna v. Holder Page 15

The term “conviction” means, with respect to an alien, a formal judgment

of guilt of the alien entered by a court or, if adjudication of guilt has been

withheld, where—

(i) a judge or jury has found the alien guilty or the alien

has entered a plea of guilty or nolo contendere or has

admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment,

penalty, or restraint on the alien’s liberty to be imposed.

8 U.S.C. § 1101(a)(48)(A). Hanna’s disposition under the YTA satisfies both

conditions.

We have already determined that YTA adjudications are convictions under the

INA. See Uritsky v. Gonzales, 399 F.3d 728, 735 (6th Cir. 2005) (holding “the Board’s

conclusion that youthful trainee designations in Michigan represent convictions for

immigration purposes represents the kind of ‘permissible construction’ of the INA

sanctioned by Chevron”). Contrary to Hanna’s contentions, neither Padilla, 559 U.S.

at 366–71, Lafler, 132 S. Ct. at 1385, nor Judulang, 132 S. Ct. at 485 provides grounds

to reexamine the holding of Uritsky.

In Padilla, the Supreme Court held that an attorney’s failure to advise a

defendant-client regarding the immigration consequences of a guilty plea constitutes

deficient performance where the consequences of the defendant’s guilty plea could easily

be determined from reading the removal statute, his deportation was presumptively

mandatory, and his counsel’s advice was incorrect. 559 U.S. at 368–69. In Lafler, the

Court held that the petitioner was prejudiced by his counsel’s deficient performance in

advising petitioner to reject a plea offer and proceed to trial. 132 S. Ct. at 1391. The

Lafler court held the “Sixth Amendment requires effective assistance of counsel at

critical stages of a criminal proceeding,” including plea negotiations, id. at 1385, and

“[i]f a plea bargain has been offered, a defendant has the right to effective assistance of

counsel in considering whether to accept it,” id. at 1387. Neither Padilla nor Lafler

bears on whether YTA adjudications are “convictions” under the INA. Nor has Hanna

made a claim for ineffective assistance of counsel and, therefore, neither decision

informs our determination.

No. 12-4272 Hanna v. Holder Page 16

In Judulang, the Supreme Court held that the BIA’s “comparable-grounds” test

to determine eligibility for discretionary relief under 8 U.S.C. § 1182(c) (repealed 1996)

is “arbitrary and capricious” under the Administrative Procedure Act, 5 U.S.C.

§ 706(2)(A). 132 S. Ct. at 483–84. The Court’s holding in Judulang does not bear upon

the permissible interpretations of “conviction” under 8 U.S.C. § 1101(a)(48)(A). Hanna

principally relies on Judulang as an example of the Court’s setting aside a BIA decision

as “arbitrary and capricious” under the APA. The crux of Hanna’s contention is that the

BIA’s method of determining whether state youthful offender dispositions are

“convictions” under 8 U.S.C. § 1101(a)(48)(A) is arbitrary and capricious. Hanna

suggests the distinction drawn by the BIA in In re Uritsky, No. A78 652 707, 2003 WL

23216944, at *2 (BIA Oct. 6, 2003), between, on the one hand, findings of juvenile

delinquency—including adjudications of youthful offender status pursuant to N.Y. Crim.

Pro. Law § 720 and determinations of juvenile delinquency under the Federal Juvenile

Delinquency Act, 18 U.S.C. §§ 5031–5042 (1994 & Supp. II 1996) (“FJDA”)—which

are not “convictions,” and, on the other hand, proceedings akin to expungement or

deferred adjudications—including Michigan’s YTA adjudications—which are

“convictions,” is arbitrary and capricious.

Our opinion in Uritsky forecloses Hanna’s suggestion based on Judulang. In

Uritsky, applying principles of Chevron deference, see Chevron, U.S.A. Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 842 (1984), we upheld the BIA’s conclusion that

Michigan YTA adjudications are convictions, thus implicitly deciding that the BIA

conclusion was neither arbitrary nor capricious. See Uritsky, 399 F.3d at 735. Uritsky

binds us here.

C.

Focusing on his November 1996 assault, Hanna argues that because he merely

intended to place the victim in apprehension of an immediate battery, his conviction

under Mich. Comp. Laws § 750.82 was not for a CIMT and, therefore, he is not

removable. There may well be merit to Hanna’s argument. Mich. Comp. Laws § 750.82

is a divisible statute, encompassing offenses that are and are not CIMTs. Although it is

No. 12-4272 Hanna v. Holder Page 17

not dispositive, Hanna’s record of conviction does not suggest facts qualifying his

offense as a CIMT. Cf. Wala, 511 F.3d at 109 (holding BIA erred in finding petitioner

removable because petitioner, convicted under a divisible statute, did not necessarily

plead to facts qualifying his particular offense as a CIMT). In our review of the record,

we find nothing suggesting that Hanna’s November 1996 assault necessarily involved

the intent to injure as opposed to the intent to place the victim in apprehension of an

immediate battery. Our conclusion is supported by Singh, which declined to hold that

a much more egregious conviction under Mich. Comp. Laws § 750.82 was a CIMT. In

Singh, the petitioner, Gurminder Singh, was convicted under the Michigan statute for an

assault based on the following events:

Singh and an acquaintance were arguing while driving in a pickup truck

after an evening of consuming alcohol; they came to blows, and the

acquaintance fell from the moving vehicle; Singh and his cousin, who

was also in the truck, continued driving and left the acquaintance—the

vehicle’s owner—on the road. Singh was charged with kidnapping, car-

jacking, and attempted murder but pleaded guilty to felonious assault

with a dangerous weapon.

Singh, 321 F. App’x at 475–476. After finding Mich. Comp. Laws § 750.82 likely

divisible, the court remanded to the BIA to determine whether Singh’s assault conviction

is a CIMT. Hanna and Singh were convicted under the same statute. Based on these

facts, Hanna’s offense appears not only significantly less egregious than Singh’s offense

but also may well “fall within the apprehension-portion of the statute [that] would

plainly stretch the concept of a CIMT.” Singh, 321 F. App’x at 480.

We recognize, however, that given the previous exclusive focus on Hanna’s

attorney’s 2003 concession of removability, the immigration courts have yet to consider

the substantive merits of Hanna’s claim that he is not removable because his offense is

not a CIMT. Although the IJ held—when making its determination to grant Hanna

withholding of removal to Iraq—that Hanna’s offense was not particularly serious and

that Hanna was not a threat to the community, the immigration courts have yet to

consider directly whether Hanna’s underlying offense is a CIMT. The immigration

courts should have the opportunity to review the record and to determine this precise

No. 12-4272 Hanna v. Holder Page 18

issue. See Kellermann, 592 F.3d at 704 (providing a framework to determine whether

an offense under a divisible statute is a CIMT); Singh, 321 F. App’x at 480 (remanding

for BIA to determine whether felonious assault conviction under Mich. Comp. Laws

§ 750.82 is a CIMT); see also Garcia-Meza v. Mukasey, 516 F.3d 535, 537–38 (7th Cir.

2008) (remanding for reconsideration where BIA mistakenly read a bodily-injury

requirement into a state assault statute). Therefore, we remand to the BIA so that it may

consider whether Hanna’s Michigan offense is a CIMT.

III.

We now turn to the separate issue of Hanna’s eligibility for asylum. “Any

alien”—any person not a citizen or national of the United States—“who is physically

present in the United States or who arrives in the United States . . . irrespective of such

alien’s status, may apply for asylum . . . .” 8 U.S.C. § 1158(a)(1). An alien is ineligible

for asylum, however, if “the alien was firmly resettled in another country prior to

arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi); see also Rosenberg v. Woo,

402 U.S. 49, 56 (1971) (holding that the presence of firm resettlement constituted a

factor for consideration in asylum petitions). Immigration regulations further provide

that “[a]n 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. § 1208.15 (2000); see also Ali v. Reno, 237 F.3d 591, 595 (6th Cir. 2001)

(affirming BIA’s ruling that asylum applicant had firmly resettled in Denmark because

applicant received a Danish passport and residence permit). An alien is not considered

to be firmly resettled, however, if he or she establishes:

(a) That his or her entry into that country was a necessary consequence

of his or her flight from persecution, that he or she remained in that

country only as long as was necessary to arrange onward travel, and that

he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so

substantially and consciously restricted by the authority of the country of

refuge that he or she was not in fact resettled. In making his or her

determination, the asylum officer or immigration judge shall consider the

No. 12-4272 Hanna v. Holder Page 19

conditions under which other residents of the country live; the type of

housing, whether permanent or temporary, made available to the refugee;

the types and extent of employment available to the refugee; and the

extent to which the refugee received permission to hold property and to

enjoy other rights and privileges, such as travel documentation that

includes a right of entry or reentry, education, public relief, or

naturalization, ordinarily available to others resident in the country.

8 C.F.R. § 1208.15(a)–(b).

In determining firm resettlement, the BIA applies “a four-step analysis, which

follows the language of the regulations at 8 C.F.R. § 1208.15 and focuses exclusively

on the existence of an offer.” In re A-G-G-, 25 I. & N. Dec. 486, 503 (BIA 2011). “In

the first step of the analysis, the DHS bears the burden of presenting prima facie

evidence of an offer of firm resettlement.” Id. at 501. “In the second step of . . . [this]

framework, the alien can rebut the DHS’s prima facie evidence of an offer of firm

resettlement by showing by a preponderance of the evidence that such an offer has not,

in fact, been made or that he or she would not qualify for it.” Id. “In the third step, the

Immigration Judge will consider the totality of the evidence presented by the parties to

determine whether an alien has rebutted the DHS’s evidence of an offer of firm

resettlement.” Id. “In the final step, if the Immigration Judge finds the alien firmly

resettled, the burden then shifts to the alien pursuant to 8 C.F.R. §§ 1208.15(a) and (b)

to establish that an exception to firm resettlement applies by a preponderance of the

evidence.” Id.

We have not expressly adopted this four-step framework to determine firm

resettlement. See Thiam v. Holder, 677 F.3d 299, 303 (6th Cir. 2012). In Thiam, we

found that since “the BIA did not follow its own framework for firm-resettlement

determinations” it “remand[ed] the case to the BIA to let it determine how to consider

the record in light of its framework.” Id. at 303. We also paranthetically noted that “[i]n

giving the BIA the first crack, of course, we are not taking a position on the extent to

which the A-G-G- framework is consistent with the law.” Id. We have held, however,

that we “must defer to the agency’s interpretation of its own regulations unless the text

is unambiguous or the agency’s interpretation is ‘plainly erroneous or inconsistent with

No. 12-4272 Hanna v. Holder Page 20

the regulation.’” Intermodel Techs, Inc. v. Peters, 549 F.3d 1029, 1031 (6th Cir. 2008)

(quoting Ky. Waterways Alliance v. Johnson, 540 F. 3d 466, 474–75 (6th Cir. 2008));

see also Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (“When an agency

interprets its own regulation, the Court, as a general rule, defers to it unless that

interpretation is ‘plainly erroneous or inconsistent with the regulation.’”) (quoting Chase

Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 880 (2011))).

Turning to the arguments, Hanna first contends that, within the context of the

BIA’s framework, the government did not offer prima facie evidence that Hanna was

firmly resettled in Canada. The government counters that both Hanna and his father

testified that Hanna was granted landed immigrant status in Canada, and that such

testimony constitutes prima facie evidence of firm resettlement. Applying the burden-

shifting framework, the testimony is prima facie evidence of firm resettlement. “Prima

facie evidence of an offer of firm resettlement may already be a part of the record of

proceedings as testimony or other documentary evidence.” A-G-G-, 25 I. & N. Dec. at

502 n.17; see also Firmansjah v. Gonzales, 424 F.3d 598, 602 (7th Cir. 2005) (applying

the burden-shifting framework and finding that government satisfied initial burden by

pointing to applicant’s “statements on her asylum application and her testimony at the

hearing”). Therefore, applying its own framework, the BIA did not abuse its discretion

in adopting and affirming the IJ’s determination that the Department of Homeland

Security presented prima facie evidence that the respondent had an offer of firm

resettlement before entering the United States.

Second, substantial evidence supports the BIA’s conclusion that Hanna firmly

resettled in Canada and is therefore ineligible for asylum. We have treated the receipt

of permanent residency status in a third country as strongly indicative of firm

resettlement. See Ibrahim v. Holder, 344 F. App’x 149, 152–53 (6th Cir. 2009) (finding

firm resettlement because “[m]ost importantly, [petitioner] received a green card which

would have permitted him to remain in [the third country] so long as he remained

married”); Jomaa v. Ashcroft, 112 F. App’x 427, 429 (6th Cir. 2004) (finding firm

resettlement because “factors [including petitioner’s asylum application] noted by the

No. 12-4272 Hanna v. Holder Page 21

IJ indicate[d] that [petitioner] had an implicit offer of some type of permanent

residence”); Ali, 237 F.3d at 595 (finding firm resettlement because petitioner was

granted asylum in third country upon her arrival, and received a passport and a residency

permit); cf. Garadah v. Ashcroft, 86 F. App’x 76, 81 (6th Cir. 2004) (rejecting the IJ’s

finding of firm resettlement because the length of petitioner’s stay in third country and

temporary residency permits cannot be construed as an offer of permanent resident

status). Both Hanna and his father testified to receiving landed immigrant status upon

arriving in Canada in December 1991 through Hanna’s sister, who is a Canadian

citizen.1 Hanna and his family remained in Canada for a year and ten months before the

family came to the United States on visitor’s visas in 1993. Hanna stresses that he was

a minor when he obtained landed immigrant status in Canada and when he accompanied

his family in entering the United States. The BIA found, however, that Hanna

maintained his Canadian lawful permanent resident status after becoming an adult and

that Hanna frequently traveled between countries until he became eligible for lawful

permanent resident status in the United States in November 1998. Because Hanna

received lawful permanent residency status in Canada before receiving such status in the

United States, substantial evidence supports the IJ’s and BIA’s findings that Hanna

firmly resettled in Canada. See Xiaomei Xu v. Gonzales, 238 F. App’x 312, 313 (9th Cir.

2007) (“Substantial evidence supports the IJ and BIA’s findings that [petitioner] is

firmly resettled in Canada . . . because [petitioner] admitted that she received ‘landed

immigrant’ status in Canada approximately eight years before her most recent entry into

the United States.”).

Hanna contends, however, that he qualifies for the exception to the firm

resettlement bar under 8 C.F.R. § 1208.15(a), which clarifies that an alien is not firmly

resettled in another country if “his or her entry into that country was a necessary

consequence of his or her flight from persecution, that he or she remained in that country

only as long as was necessary to arrange onward travel, and that he or she did not

1

“Landed immigrant” status, although no longer employed in Canadian immigration law, refers

to Canadian lawful permanent resident status. See Bajwa and Minister of Public Safety and Emergency

Preparedness, [2011] F.C. 192, para 8 (Can. Que.).

No. 12-4272 Hanna v. Holder Page 22

establish significant ties in that country.” 8 C.F.R. § 1208.15(a). Hanna argues that he

remained in Canada only as long as necessary to join his parents in the United States and

that he remained in the United States in violation of law for the majority of the time from

1993 to 1998. Indeed, the decision that Hanna would accompany his family to the

United States in 1993 was made by Hanna’s father. The BIA, adopting the IJ’s

explanation, found that Hanna did not qualify for the exception. The IJ found sufficient

evidence to refute the notion that the family only intended to remain in Canada only as

long as necessary to make further travel arrangements. See 8 C.F.R. § 1208.15(a). This

evidence included findings that Hanna’s family started a business in Canada; that Hanna

and his father traveled to the United States for a wedding in 1991 and were allowed to

return to Canada; that Hanna attended middle school and church in Canada; and that

Hanna has a sister who is a Canadian citizen living in Canada. Therefore, substantial

evidence supports the finding that Hanna’s stay in Canada from 1991 through 1993, as

well as his intermittent travels to Canada through 1998, exceeded that which is

“necessary to arrange onward travel.” See 8 C.F.R. § 1208.15(a); see also Ali, 237 F.3d

at 595–96 (finding asylum applicant did not qualify for an exception since she “did not

remain as long as necessary to arrange onward travel” and “clearly established

significant ties in Denmark” (internal quotations omitted)). The BIA did not abuse its

discretion in affirming the IJ’s finding that Hanna does not qualify for an exception to

the firm resettlement bar under 8 C.F.R. § 1208.15(a).

In the alternative, Hanna argues that because his claim for asylum occurred well

after he obtained permanent resident status in Canada and in the United States, the firm

resettlement bar does not apply. Hanna obtained landed immigrant status in Canada in

November 1998, lawful permanent resident status in the United States in July 2003, and

then applied for asylum based on his fear of persecution as a Chaldean Christian in May

2010. Hanna observes that since he did not seek asylum based on his fear of persecution

as a Chaldean Christian until nearly a decade after he acquired lawful permanent resident

status in the United States, the relevant time period for the firm resettlement analysis has

been reset. Hanna contends that when the fear of persecution does not arise until after

an asylum applicant is resettled in the United States, the intervening acquisition of lawful

No. 12-4272 Hanna v. Holder Page 23

status in a third country does not trigger the firm resettlement bar. The BIA rejected this

argument, concluding that the denial of asylum is required for anyone who has firmly

resettled before arriving in the United States, regardless of when the fear of persecution

arose. The government additionally responds that the firm resettlement bar applies to

Hanna because his circumstances fit within the plain language of both 8 U.S.C.

§ 1158(b)(2)(A)(vi) and 8 C.F.R. § 1208.15. The government contends that the statute

and regulation concern an asylum applicant’s contacts with a third country “prior to”

entering the United States, not the reason the alien entered that third country. See

8 U.S.C. § 1158(b)(2)(A)(vi).

Hanna’s argument fares no better now than it did before the BIA.

Determinations of firm resettlement depend on an alien’s contacts with a third country

prior to entering the United States. The statute is unambiguous on this point and

contains no suggestion that events occurring after an alien enters the United States have

any bearing on whether the alien had previously firmly resettled in a third country. See

8 U.S.C. § 1158(b)(2)(A)(vi) (providing ineligibility for asylum if “the alien was firmly

resettled in another country prior to arriving in the United States”). This interpretation

is buoyed by Sixth Circuit case law. See Ali, 237 F.3d at 596. In Ali, petitioner was

granted refugee status by Denmark, and upon arrival in that country she received a

Danish passport and a residence permit. Id. at 595. Subsequently, petitioner allowed her

Danish passport to expire. Id. at 593. Danish authorities confiscated the passport and

informed her that she no longer had refugee status. Id. As a result, petitioner argued that

the BIA erred in finding that she had firmly resettled in Denmark. The Ali court rejected

petitioner’s argument, noting that “‘[t]he pertinent regulations specifically focus on

resettlement status prior to the alien’s entry into this country.’” Id. at 596 (alterations

in original) (quoting Abdalla v. INS, 43 F.3d 1397, 1400 (10th Cir. 1994)); see also

Tchitchui v. Holder, 657 F.3d 132, 136–37 (2d Cir. 2011) (rejecting petitioner’s

argument that the IJ and BIA erred in determining petitioner did not qualify for

§ 208.15(a) exception by considering his ties to third country extant prior to persecution

giving rise to petitioner’s asylum application). Applying the plain text of the statute and

the principle noted by the Ali court, the fact that Hanna’s claim for asylum arose after

No. 12-4272 Hanna v. Holder Page 24

acquiring lawful permanent residence in the United States does not affect whether Hanna

was firmly resettled in Canada before entering the United States. Nor do we believe that

Hanna’s contention that his Canadian permanent resident has lapsed after entering the

United States alters the conclusion that he was firmly resettled in Canada before entering

the United States. See Immigration and Refugee Protection Act of Canada, S.C. 2001,

c. 27, §§ 28, 41(b) (Can.). Since substantial evidence supports Hanna’s firm

resettlement in Canada prior to entering the United States, he is ineligible for asylum.

See 8 U.S.C. § 1158 (b)(2)(A)(vi); see also Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir.

2006) (“The United States offers asylum to refugees not to provide them with a broader

choice of safe homelands, but rather, to protect those arrivals with nowhere else to

turn.”).

IV.

For the foregoing reasons, we grant Hanna’s petition for review, reverse the

BIA’s holding that Hanna’s admission is binding, and relieve Hanna of his attorney’s

2003 concession of removability. Because the BIA’s determination that Hanna is

removable is predicated upon this concession of removability, we reverse that

determination. We remand to the BIA to decide, consistent with the reasoning provided

above, whether Hanna’s specific offense under Mich. Comp. Laws § 750.82 is a CIMT

and whether he is removable without giving his attorney’s 2003 concession binding

effect. Separately, we affirm the BIA’s conclusion that Hanna is ineligible for asylum.