The BIA on Firm Resettlement

by Jason Dzubow on June 22, 2017

One of my professional goals in life is to get a published decision from the Board of Immigration Appeals (“BIA”). It won’t be easy–the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation’s Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.

Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are “persuasive,” meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.

My case centered on a legal construct called “firm resettlement.” An alien who has been “firmly resettled” in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client’s husband had been a high-ranking member of his country’s government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum–hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge (“IJ”) denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.

During the pendency of the BIA appeal, the home government assassinated my client’s husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.

On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.

DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government’s argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.

Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.

{ 57 comments… read them below or add one }

Steve September 8, 2017 at 3:35 am

Hi Jason, I am from Syria and I have a very complicated issue and could not find any reference to help me taking a good decision… Long story short and thanks in advance:
– I received a notice to appear for a FORTH asylum interview within 4 years and I am expecting a DENIAL due to change of circumstances (Firm Resettlement in Canada which took place after my third interview). I still have a valid status (OPT and TPS), I have a very well job and the employer started a PERM application for employment based sponsorship…. What is the best action to be done:
1- Withdrawal my asylum case before the interview and continue with my PERM application “Will that affect the future green card process”?
2- Don’t show to the interview and be referred to a JUDGE as the asylum office notice I 589 stated “Will that affect the future green card process”?
3- Go to the interview and see how it goes with possible withdrawal during or after the interview “Will that affect the future green card process”?
4- Go to the interview and compete it and wait for the decision (Which I expect to be a denial) and go back to my legal status with no chance of a court appealing “Will that affect the future green card process”?
Thanks for your thoughts!

Reply

Jason Dzubow September 8, 2017 at 3:45 pm

I think you need to go to the interview. You do not want the case to go to the judge and then you get a deportation order – that will make other paths for you more difficult. If you are sure about the denial, you can go to the interview, show them evidence of your status in Canada, and ask to withdraw the case. You should also have evidence that you are in valid OPT status and you have TPS. With all this, they can close the case (hopefully), and you can continue here in OPT, and then (again, hopefully) adjust status based on employment. Good luck, and please let us know how it goes. Take care, Jason

Reply

Steve September 9, 2017 at 12:13 am

Thanks, very helpful as usual. I am leaning toward this option and to be so clear and honest since I have never played games at all.. I already informed them that I received an immigration visa to Canada at the third interview 2 years ago.
Several points came to my mind and I already know that no one can predict what’s going to happen, but thanks in advance for the advice::
– I am pretty sure of the denial decision based on the firm resettlement bar after getting a permanent residency status in Canada… Although I have no ties to Canada (Visited only for 30 mins), and I already have strong ties here in the US (Finished schooling with a masters degree, got my license, have a good job and good standing status with 4.5 years in the US without being out of status) and although that I need to REDO all these steps of long schooling if I ended in Canada to start working again 🙁 .. but I felt that the asylum officer will not be able to accept the case with the bar of firm resettlement!! Do you feel that I can defend the case and keep my application depending on these facts? or it’s just better to explain the above clearly and withdrawal hoping to keep my future green card process in a good standing status?!
– Is it confirmed that I will lose my TPS too depending on the firm resettlement bar in Canada?
Thank you Jason, I apologies for the long consult!

Reply

Jason Dzubow September 10, 2017 at 10:51 am

I do not know about TPS, but firm resettlement generally depends on whether you have an offer, and it sounds like you do. I think if you prefer to stay in the US, you should try to stay here based on employment or even asylum, though I do think you will need to show why you are not firmly resettled in Canada. This may be possible, but the firm resettlement analysis is a bit complicated, and I recommend you talk to a lawyer to help you present the best argument you can to the asylum office. Take care, Jason

Reply

Steve September 11, 2017 at 2:13 am

Thanks Jason, so appreciated.
I will keep you posted!

Haris July 20, 2017 at 2:28 pm

Hey Jason
Hope you are well, I have a question, I filed my asylum application in Jan 2015 in Arlington Asylum office, In Nov 2016 I moved to Chicago for my new job and my case was moved to Chicago office too. On Affirmative Bulletin, It shows Chicago office has conducted interviews for application filed in February 2015 but I never received a notice or any call from Chicago Asylum office.
Do you think Chicago office is considering my case filed date November 2016 rather than Jan 2015? I am worried If in worst case scenario they sent me a notice for interview but I have not received it. I do have an appointment with them on next week but just losing my peace of mind on uncertainty what really happened. Please advise

Reply

Jason Dzubow July 21, 2017 at 6:24 am

If you filed the AR-11 and they have your address, you should be fine. You can email them and ask about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Also, make sure that all documents are submitted, so that the case is ready if they schedule you for an interview. Take care, Jason

Reply

Mary July 7, 2017 at 6:50 pm

Hi
Jason
My husband’s father is sick and in the hospital.
He has a heart condition, we are currently on an asylum application.
Is it possible for us to apply for an advance parole for him to visit his parents ( same country we have applied for fear of persecution)
How long does it take for an advance parole approval to be given.
Will he have problems entering the country back on his return as he has a pending case, our son and myself are dependents on this application.
Is there a fee we have pay to submit an advance parole
We are due to get our employment authourisation in November 2017
It will just be my husband who would want to travel to see his ill father.
Thank you

Reply

Jason Dzubow July 9, 2017 at 7:59 am

Going back to the country will very likely cause the application for asylum to be denied, even if there is a good reason to return. He would need evidence to show why he is returning (father’s medical records) and also evidence about why it is still dangerous in that country and why he needs asylum. Even then, the return trip will be a problem. As for Advance Parole, the form is I-131, available at http://www.uscis.gov, and the instructions explain what you need and the fee. Take care, Jason

Reply

Mary July 10, 2017 at 9:39 pm

Many thanks for replying Jason.
I have one more question, In case my husband wants to withdraw from the application.
Will it be possible for me to get myself and my son under a new asylum application?
My husband will only need to withdraw from the application in case advance parole does not work or if it is disapproved.

Reply

Mary July 10, 2017 at 9:40 pm

Many thanks for helping all of us who are in need of answers.

Reply

Jason Dzubow July 12, 2017 at 6:13 am

If he is the principal applicant and he leaves the US, the application will be done, so you will need to apply again on your own. I recommend you email the asylum office before he withdraws to see whether you can somehow substitute for him, so you can keep your place in the queue and protect yourself from the one-year asylum filing deadline. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

Mary July 17, 2017 at 1:58 am

Many thanks for your response Jason!

Ali July 5, 2017 at 3:28 am

Hi Jason,

Me and my family just got asylum based Green Cards. My wife and kid were derivative and I was the principal applicant. I filed asylum based on threat from sunni radical terrorist groups and not from home government. Can my wife and son travel to the home country on their home country passports. Or is it better to travel on the Refugee Travel Documents or should the abstain from traveling at all. We are not from the 6 countries. Please advise. Thank-you.

Reply

Jason Dzubow July 5, 2017 at 6:04 am

Certainly, it is better not to go to the home country at all. If they do travel, they can re-enter the US with the RTD or with the green card. But if the trip causes the US government to think that your case was false or that you really do not have a fear of returning, it could cause problems for you. If they have a reason to travel (visiting a sick relative, for example), get evidence about that reason (like a doctor’s letter), so that if they are asked about this, they can at least state a reason for going. Take care, Jason

Reply

Mary July 7, 2017 at 6:44 pm

Hi Ali
Could you email me to [email protected]
I would like to communicate with you
Thank you!

Reply

besho June 27, 2017 at 5:02 am

Hello Jason, God bless you,
i will come to USA to submit asylum,
does immigration offices will still receive asylum seeker after Supreme Court decision ?, or this decision not effective to asylum seeker internal USA.
iam a christian and not from the 6 countries.

Reply

Jason Dzubow June 27, 2017 at 6:23 am

If you are not from one of the six countries, the Supreme Court decision should not affect your case, and the decision does not block people from seeking asylum here. Take care, Jason

Reply

Joe June 27, 2017 at 2:13 am

Hi dear jason
After what suprem court desition people with travel docoment from 6 countries they can teavel ?
Thanks for your concern

Reply

Jason Dzubow June 27, 2017 at 6:22 am

That is not yet clear. The US government will have to issue rules for how they will implement the travel ban, and that should happen in a few days (supposedly). Then, we will know how the Supreme Court decision will be implemented. Take care, Jason

Reply

Solo June 26, 2017 at 11:02 pm

Hello Jason

Will the Supreme Court rulings affect asylum seekers special for those who are waiting for their first EAD

Thank you for you work may god bless u

Reply

Jason Dzubow June 27, 2017 at 6:08 am

Probably not, but we will have to wait to see how the US government implements the order, which we will probably know in a few days. In any case, if you are not from one of the six countries, it should have no effect. Take care, Jason

Reply

Uploaded June 26, 2017 at 5:22 pm

Jason,

With the ruling of SC today, there’s a possibility of the ban to be reinstated back in October.
Does this mean asylees (with green cards) from the banned countries should not travel out of the country no more?
By travel, I mean to a country that’s not COP.

Thanks, Jason!!

Reply

Jason Dzubow June 26, 2017 at 10:24 pm

The ban could be re-instated in some form any day now, and I expect it will be. What form that will take, we do not yet know. My guess is that travelers with a GC will be fine, but I would be careful and pay close attention to what is happening before you travel. And of course, apply for US citizenship as soon as possible so you can be done with this nonsense. Take care, Jason

Reply

Uploaded June 26, 2017 at 11:17 pm

Thank you, Jason!!
I think the ban is actually working. It might not be legally enforced, but it for sure made people rethink coming/living in the U.S
My words to people is don’t lose hope. Laws change and the administration will eventually change too!

Again, thanks Jason for your help!!

Reply

Jason Dzubow June 27, 2017 at 6:12 am

I agree with that – I think one of the main purposes of the ban was to deter people from coming, and in that sense, it is working quite well. Take care, Jason

Reply

aa June 26, 2017 at 2:45 pm

Hi Jason,

with the partial reinstatement of the ban, where does this leave people within the US who have filed AOS based on asylum or employment ..etc?
I am inclined to think that the SC will uphold the entire ban in October and I am almost confident the ban will be extended indefinitely. What’s your advice for those already within the process?

Reply

Jason Dzubow June 26, 2017 at 10:15 pm

There is not much to do other than continue the process. I have not read the whole case, but it seems to me that it creates a system that is not workable without some interpretation by the Executive Branch, and this will likely be subject to more litigation (in this regard, I agree with J. Thomas’s opinion). There seem to be different schools of thought about whether it will become permanent; some people think Trump will declare victory and let it go. I am more pessimistic than that, but we will see. Take care, Jason

Reply

Virginia June 26, 2017 at 1:11 pm

Hi Jason, thank you and two questions:

1) since you hoped this case would be published, do you feel okay about telling us what was the unsafe country from which your person fled, and what was the also-unsafe country where her husband was assassinated?

2) Will you share this case with Ben Winograd so he can include it in IRAC’s index of unpublished BIA decisions?

muy amable,
Virginia in Austin

Reply

Jason Dzubow June 26, 2017 at 10:13 pm

I don’t, but I will share it with lawyers for their clients if they ask me. Also, Ben already has it (he is that good). Take care, Jason

Reply

Kanwal June 26, 2017 at 11:15 am

Hi jason, What is minimium, average and maximium fees of a lawer in immigration court for a case of Removal Proceeding of an Asylum case? Any idea?

Reply

Jason Dzubow June 26, 2017 at 10:11 pm

IT is very variable. I normally charge $4000 for a local court case, and that fee is on the low side. Average is probably $5000 to $7000, but fees can be much more. I did a post about this on March 2, 2016 and that might help. Take care, Jason

Reply

aman June 26, 2017 at 8:26 am

Hi jason ..
thanks for a wonderful blog for helps needy people. God Bless You
i want to know about simple question. i have connecting flight when i arrived usa. in 589 application a question is ” travel though or reside any other country “.
actually i missed my flight in UAE by the weather changed and airline gave us one day stay there . so what will i need to click on that question in application.

Reply

Jason Dzubow June 26, 2017 at 10:09 pm

For that question, I list any connecting flights and state how long you were in that country. Take care, Jason

Reply

Lala June 24, 2017 at 12:33 pm

Congrats on the great work! The lawyer’s argument that “firm resettlement as a door” is a deviation of the meaning and reasoning of asylum’s concept itself. Firm resettlement is when the asylum seeker is able to permanently lead a safe normal life in a third country where he/she has the same rights of a citizen or permanent resident, and where he/she is able to safely access this country. The U.S asylum law arguments never cease to shock me. This asylum seeker is one of the lucky ones who had great attorneys working on her case 🙂

Reply

Jason Dzubow June 25, 2017 at 12:23 pm

Thank you – This is why I think the decision is useful, as it makes clear the point you make about intent (which is not so clear just from reading A-C-C- for example). Take care, Jason

Reply

Andrew June 24, 2017 at 10:26 am

Hi Jason,
i received NOTICE TO APPEAR from New York Asylum office.They put me in Removal Proceddings and told me to go to immigration judge in New York.Name of judge is not mentioned and not any date to appear.My Questions are:
1.in how many days i have to appear in the immigration court?
2.How i know the name of my judge?

Reply

Jason Dzubow June 25, 2017 at 12:21 pm

They will send you a notice about the court date. But to be safe, you should also call the court hotline at 1-800-898-7180 and enter your Alien number. Push 2 and the system will tell you your next court date (once the date is scheduled). It will also tell you the name of your judge. Take care, Jason

Reply

Andrew June 26, 2017 at 10:00 am

Hi jason, i checked my hearing date on helpline but no date is there.i recieved letter on last Friday.

Reply

Jason Dzubow June 26, 2017 at 10:03 pm

It often takes a few months before you are scheduled for a court date. I recommend you check the hotline every week or two. Take care, Jason

Reply

Stephanie June 24, 2017 at 4:39 am

Oh Jason that was some case you won there,congrats !!!.How I wish I could change my lawyer to you #sob..

Reply

alex June 23, 2017 at 1:53 pm

How were they able to reach the US if they were resettled in another country?

Reply

Jason Dzubow June 23, 2017 at 4:45 pm

They were in the third country for a while and then came to the US with a visa. Take care, Jason

Reply

Daniel June 23, 2017 at 12:42 pm

Great job, Jason! Congratulations!

It sounds like DHS was pushing Matter of AGG too far; I think it’s reasonably clear that the main point of Matter of AGG was to make sure that people didn’t just deliberately reject or avoid refuge in safe countries so they could get asylum in America instead, and that made sense. But it would make no sense if, say, Jews fleeing persecution in Russia in 1917 and settling in Germany then couldn’t get asylum if they had to flee from Germany too in 1933. Doesn’t the “door that, once passed through, bars you from asylum forever” idea mandate that result?

Reply

Jason Dzubow June 23, 2017 at 4:32 pm

Funny, but I think I made a similar argument to the DHS lawyer and the Judge in my case (I have a penchant for Nazi analogies). I agree with you, but they didn’t buy it. Take care, Jason

Reply

Shawn June 23, 2017 at 11:04 am

Hi Jason, congrats on your win! I agree that they should have published your case. I guess if they did, then people who currently resettled in “safe third countries” would start filing for asylum in the US in droves. It’s rather unfortunate that your client lost her husband. Thank you.

Reply

Jason Dzubow June 23, 2017 at 4:27 pm

I don’t think the decision helps people in safe third countries, as it only applies to people are in unsafe third countries. I just think they do not like to publish decisions for some reason. Take care, Jason

Reply

Cynthia Arn June 23, 2017 at 10:37 am

Where is the opinion? I’d love to read it. Congrats.

Reply

Jason Dzubow June 23, 2017 at 4:25 pm

You can email me and I will send you a redacted copy: [email protected]. Take care, Jason

Reply

Raj June 23, 2017 at 1:36 am

Hi Jason Sir
If u read & reply we shall be very thankful to you.

One my friend’s U Visa case is pending from last 2 yrs 10 months. We read that in U visa cases they have Limit of 10000 cases every year. He is waiting for his interview but don’t have adject information regarding interview. He has kids too He is not able to do the work because he doesn’t have work permit . Can u pls guide us.

If anyone know about this pls share ur experience.

Regards

Reply

Jason Dzubow June 23, 2017 at 6:43 am

I do not know much about U visas, and so I cannot assist with this. I do think U visas can be slow, but I recommend he finds a lawyer to help him with this, as it sounds like someone should look into it after so long. Take care, Jason

Reply

Kris June 22, 2017 at 9:42 pm

I 100% believe the decision should have been published. For public without explicit knowledge of laws, this case decision seems like prime example of common sense. And it’s very sad that she lost her husband. May god give her strength to cope with everything.

Reply

Jason Dzubow June 23, 2017 at 6:40 am

Thank you, Jason

Reply

Tesseract June 22, 2017 at 4:13 pm

Hi Jason. Thank you for all your helpful posts. I have a question. i filed asylum through the Miami office in March 2014. I relocated to Chicago in January 2015 and even though the website says they are interviewing cases from October 2014, my interview has not been scheduled. Does this mean my case is still in the Miami queue (May/June 2013)?

Reply

Jason Dzubow June 23, 2017 at 6:38 am

If you did not do it, you are supposed to submit an AR-11 form (available at http://www.uscis.gov) to the Miami office to change your address (now-a-days, you can do it online). If you did that, email or contact the Chicago office to ask about the status of your case. You can find their contact info if you follow the link at right called Asylum Office Locator. Take care, Jason

Reply

Rita2017 June 23, 2017 at 8:30 am

You should send a copy of change of address form to the chicago office even if you did it online that what they told us. Try to visit the office and they will tell you if they received your case or not. Your turn is very soon, be ready and good luck !

Reply

Jason Dzubow June 23, 2017 at 4:25 pm

You can also email it. You can find their email address if you follow the link at right called Asylum Office Locator. It is new, but you can now change the address for an asylum case on-line using the AR-11 (though since it is new, I do not fully trust it, but we did it successfully a few times. Take care, Jason

Reply

Leave a Comment

Previous post:

Next post: