BIA Expands the Definition of Firm Resettlement

by Jason Dzubow on January 30, 2012

A recent BIA decision addresses the issue of firm resettlement. See Matter D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012).  If an alien is firmly resettled in a third country, she is not eligible for political asylum in the United States. 

Last year, in a case called Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011), the Board set forth a framework for determining whether an alien is firmly resettled and thus barred from obtaining asylum.  First, DHS bears the burden of presenting prima facie evidence, such as a passport or other travel document, of an offer of firm resettlement.  The asylum applicant can then rebut DHS’s prima facie evidence by showing that the offer has not, in fact, been made, that he would not qualify for it or that an exception to firm resettlement applies.  One exception is that the applicant’s entry into the 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.” See 8 C.F.R. § 1208.15(a).

A frequent diner card from the Belize City Johnny Rockets may constitute prima facia evidence of firm resettlement.

In Matter of D-X- & Y-Z-, a Chinese asylum seeker went to Belize where she fraudulently obtained a residence permit.  She then continued her journey to the United States and filed for asylum.  Despite the Belize residency permit, the Immigration Judge found that the alien was not firmly resettled because she remained in Belize “only as long as was necessary to arrange onward travel” and she “did not establish significant ties in that country.”  The IJ granted asylum.

The BIA reversed, holding that, “Even if the respondents used some form of fraud or bribery through a middleman to obtain [the residency permit], there has been no showing that they were not issued by the Belize Government.”  The Board also noted, “aliens who have obtained an immigration status by fraud should not be permitted to disavow that status in order to establish eligibility for another type of relief.”  The BIA concluded that the alien’s “claim of fraud in obtaining permits to reside in Belize does not rebut the DHS’s prima facie evidence of firm resettlement in that country [i.e., the fact that she held a Belize residency permit].”

This decision is problematic because it is common for aliens to obtain false documents from countries that will not protect them while they are en route to the United States.  For example, I have represented a number of East African clients who fraudulently obtained South African passports.  These people have no permission to remain in South Africa, and if that government discovered their fraud, they would be deported to the country where they face persecution.   Thus, any “status” they may have in South Africa is tenuous at best.

Perhaps the alien in Matter of D-X- & Y-Z-, should have done a better job obtaining evidence to rebut the presumption of firm resettlement in Belize.  For the rest of us, the case is a cautionary tale–if a client has used a fraudulently obtained documents from a third country, she had better obtain evidence demonstrating that she is not firmly resettled in that country.

{ 6 comments… read them below or add one }

PSGasylumseeker February 11, 2017 at 8:33 am

Dear sir Jason. I would like to hear yoir valuable opinion on my case. I am filing for asylum for past persecution based on PSG and Political opinion. I was born in another country but i don’t carry that citizenship anymore (renounced) and my wife is a citizen of a third countrt. The only country i have ever lived in is the COP. Although i have never lived in my wife’s country i can actually get residency and receive citizenship many years after request but i never requested because its within tge same region of COP and not safe. Am i considered firmly resettled even though i only lived in COP and only carry COP’s citizenship? Btw my wife’s country cannot protect me. Or is my wife’s citizenship is not relevant to my case? Thank you sir Jason.

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Jason Dzubow February 12, 2017 at 11:53 am

It sounds to me like you are not firmly resettled in your country of birth or your wife’s country. However, in your asylum case, you would need to provide evidence that you are not firmly resettled, or that you do not have citizenship in your country of birth. This can be tricky, and so I recommend that you contact a lawyer for help on this issue. Take care, Jason

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Natalia June 24, 2014 at 3:11 pm

Dear Mr.Dzubow, could I ask your opinion on my case? We filed an application as refugees from former Soviet Union, by Lautenberg amendment. I am sponsored by my sister who is already in the US. OUr case has been considered and we have already had an interview at the US Embassy in Moscow. After that we received a notice of ineligibility for resettlement, with the reason stated as “FIRM RESETTLEMENT. There is evidence that indicates that you may have been firmly resettled in a third country, and you have failed to meet your burden of proof to establish otherwise.” I am kind of confused, because the only time when I changed my place of residence was when I got married in 1986 and moved to my husband from Moldova (where I lived with my parents) to Belarus, both of which were parts of the Soviet Union, with the same laws and the same persecution of Evangelical Christian. I have lived in Belarus since then. But in 1992 I automatically got citizenship of the Republic of Belarus , because Soviet Union didn’t exist any more. Now we can send an appeal about that decision of our ineligibility, because it looks like in my case it was not a firm resettlement, the reason why I moved from Moldova was to join my husband and not flee persecution and I stayed a citizen of the USSR, both in Moldova and Belarus, because it was one country. And getting Belarusian citizenship was not because of moving, but because USSR broke down… Could you please tell me if I am right and give me some hints what I should note in my appeal? Thank you very much!

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Jason Dzubow June 27, 2014 at 10:36 am

If you want to call me about this, we can discuss it. I will be away from the office for a few days, so try me after July 7: 202-328-1353.

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Abdiwali February 24, 2014 at 8:00 pm

on oct 18 2013, immigration judge denied my asylum application and granted me withholding of removal after gov attorney claimed that since I had a refugee permit in South Africa it means I was firmly resettled in that country. the reason why I left south Africa was that Somalis in south Africa are daily killed by south Africans and there is international outcry about this after the tragedy scene, which was captured in a video that surfaced on Facebook and Twitter last year, brought grief to millions of Somalis throughout the world. The YouTube video shows Abdinasir Mahmoud lying flat on a street with his clothes striped.The mob took turns to smash the helpless Abdinasir Mahmoud with rocks pouring on his face and kicks on his head until he died on the scene. this could be me as I have three attempted murder in my case. the judge said I established past persecution in Somalia but only denied asylum because of south Africa. ok in south Africa I had refugee permit which I had to renew every two years sometimes four years, how far can that type of document make one really firmly resettled? most importantly even if I was granted south African citizenship I couldn’t be able to live there peacefully because of my nationality, which is one of the five protected grounds for asylum claim, and the south African government couldn’t give me protection. being poorly represented by attorney , I wanna know my chance of reopening my case and possibility of wining. looking forward to hearing from you.

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Jason Dzubow February 24, 2014 at 10:47 pm

To reopen your case, you would need to show that there is new, previously unavailable evidence about firm resettlement in South Africa, OR, you would need to show that the attorney who represented you committed ineffective assistance of counsel. I know nothing about your case, but in general, it is difficult–though not impossible–to reopen.

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