“Firm Resettlement” Training Module For Asylum Officers Released After A Freedom Of Information Request

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A 37-page Asylum Officer Training Module on “Firm Resettlement,” dated May 23, 2013, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available at the Louise Trauma Center website: www.louisetrauma.com. It is also AILA Doc. No. 1709-2761. I have added some cases not in the lesson plan.

Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011) is cited more than ten times.

INA section 208(b)(2)(A)(vi) provides that an applicant is ineligible for asylum if she was “firmly resettled in another country prior to arriving in the United States.”

8 C.F.R. section 208.15 provides that an applicant is firmly resettled if, she “received an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” However, there are two exceptions:

a] her entry into that country “was a necessary consequence” of her flight from persecution; she “remained in that country only long as was necessary to arrange onward travel; and she “did not establish significant ties to that country;”

b] the “conditions” of her residence “were so substantially restricted” by that government, considering housing, employment, permission to hold property, right to travel, education, and access to public relief.

Firm resettlement is “the ability to stay in a country indefinitely.” Page 15 of Lesson Plan [emphasis in original; citing Matter of A-G-G-, 25 I&N Dec. at 501, which lacks the italics.]

Sample questions to ask applicant [from page 17 and 22]

-does the document, on its face, indicate you are able to stay in the country indefinitely?

-did you ever renew your permit?

-how difficult is it to renew? What did you have to do to renew this permit?

-what are your family ties in the country?

-what property or businesses did you have?

-what government benefits did you get? Education opportunities?

-did you have the right to exit and re-enter the country?

-could you buy real estate? Open a bank account?

In Ye v. Lynch, 650 Fed. Appx. 385 (9th Cir. 2016), a man from China was deemed to be firmly resettled in Ecuador, even though his I.D. card had a 2016 expiration date. The Court noted there was no evidence the card was invalid or could not be renewed.

In Naizghi v. Lynch,623 Fed. Appx.53 (4th Cir. 2015) a citizen of Eritrea, lived in Italy for 14 years. She renewed her work permit there continuously. Government gave her medical care; she could travel; she could have obtained citizenship after 10 years. Held: she was resettled.

A person can be firmly resettled even in the absence of an actual “offer.”

“The existence of a legal mechanism to obtain permanent status in the third country may be sufficient evidence to establish an office of firm resettlement, and is not contingent on whether the applicant applies for the status.” Page 13.

Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001), involved a man from Somalia who was granted asylum for a two-year period in South Africa. The BIA held he was firmly resettled; the Third Circuit remanded, for the taking of evidence: as a matter of practice in South Africa, were two-year refugees such as the applicant “routinely” granted extensions, if they applied?

A country that provides “a process” to obtain permanent status has made an “offer” of permanent status. Note 22, on page 14.

Loss of permanent status may be irrelevant

Just because an applicant cannot return to the country where she was firmly resettled does not mean she can get asylum. An example in the Lesson Plan at page 15: Applicant was firmly resettled in Country X but allowed a travel document to expire or remained outside of the country longer than permitted. If she had the “ability to stay in the country indefinitely,” she may still be barred from asylum.

In Tchitchui v. Holder,657 F.3d 132, 137 (2d Cir. 2011) a man from Cameroon was firmly resettled in Guatemala, but departed from there. He then lost his status there. Held: not being able to return to Guatemala is not relevant. Asylum is “not to provide [applicants] with a broader choice of safe homelands,” but rather, to “protect [refugees] with nowhere else to turn.” Accord: Vang v. INS, 146 F.3d 1114, 1117 (9th Cir. 1998) (finding resettlement despite the claim of not being able to return to that country due to expiration of travel documents.)

A man who lived in a third country for 30 years might not be resettled

An applicant who lived in a country for one day, who was offered permanent status could be denied asylum. Another applicant, who lived in a country for 30 years and sent his children to public school might not be firmly resettled. Page 16.

An exception: was she in the country only as long as was necessary to arrange onward travel and she did not establish significant ties?

8 C.F.R. section 208.15(a) provides that even if an applicant received an offer of permanent resident status, she can avoid a bar if: her entry into that country “was a necessary consequence” of her flight from persecution; she “remained in that country only long as was necessary to arrange onward travel; and she “did not establish significant ties to that country.”

Ms. She, from Burma, lived in Taiwan for 18 months and fraudulently obtained a Taiwanese passport, which she renewed several times. She was not barred, because she remained in Taiwan “only long enough to obtain a passport and arrange onward travel, and [because] she did not establish significant ties to Taiwan.” She v. Holder, 629 F.3d 958 (9 th Cir. 2010).

In contrast, the BIA found firm resettlement for a woman who obtained a permit by fraud, who did not work in the country, and was there a “relatively short” time. She did, however, depart from the country and return to it. Matter of D-X- &Y-Z-, 25 I&N Dec. 664, 667 (BIA 2012). The BIA stated at page 666: “More generally, we note that 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.”

Example on page 23: a Peruvian stated he entered Venezuela illegally, and then paid a man to place a Venezuelan resident stamp in his passport. He used that stamp to re-enter Venezuela twice. Held: he was firmly resettled. [see Salazar v. Ashcroft, 359 F.3d 45 (1st Cir. 2004)].

An exception: were the conditions of her residence substantially restricted by the authority of the country? [emphasis in original at page 18]

8 C.F.R. section 208.15(b) provides that the applicant can still get asylum if “the conditions of his or her residency were so substantially and consciously restricted by the authority of the country….”

In Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 668 (BIA 2012), the BIA held that the Chinese applicants failed to demonstrate any restrictive conditions in Belize.

Example at pages 20-21: Applicant, from Country 1 flees to Country 2, where he can’t get a job, because private employers hate people from his country, and refuse to hire them. Do not “take this into consideration because private actors, not the host government, discriminated against Applicant.”

[in an unreported BIA decision dated November 14, 2014, a citizen of Cameroon obtained a permanent resident card in Chile. She argued she was not firmly resettled there, because she suffered racism and mistreatment by people in Chile. She was sexually assaulted by agents of her employer in retaliation for reporting employer to the police. Did the government of Chile restrict the conditions of her residence? NO. It was done by “private individuals.” No asylum for the lady; however, she does deserve withholding of removal.]

Who has the burden of proof concerning foreign law?

At page 25, the Lesson Plan is inconsistent. If the applicant seeks the benefit of foreign law, she bears the burden of producing evidence of it. “In other instances, you [the asylum officer] bear this burden where you are relying on foreign law.” Note 54 refers to Matter of Soleimani,20 I&N Dec. 99, 106 (BIA 1989), where the BIA required the U.S. government to prove the law of Israel. However, Matter of A-G-G-, 25 I& Dec. 486, 502-03 (BIA 2011) perhaps overrules Soleimani, suggests the footnote.

The firm resettlement bar does not apply to spouse and children

“The firm resettlement bar does not apply to the spouse and children of refugees and asylees who are derivatives of the principal applicant.” Page 27.

Comments by the author

1. The firm resettlement bar does not apply either to withholding of removal claims or CAT

claims. Ye v. Lynch, 650 Fed. Appx. 385, note 1 (9th Cir. 2016).

2. In Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013), a native and citizen of Venezuela

suffered harm there, and applied for asylum in the United States. The DHS proved the man was also a citizen of Spain. Held: no asylum, unless he can prove future harm in Spain. The BIA further commented: “[T]he core regulatory purpose of asylum . . . is ‘not to provide [applicants] with a broader choice of safe homelands,’ but rather, to ‘protect [refugees] with nowhere else to turn.” [citations omitted].

3. For another interesting, unreported BIA decision, see The Asylumist, June 22, 2017:

Husband was a high-ranking officer in Country A. He was threatened, so he and wife went to Country B, which gave both asylum. Wife then came here, to the United States, and applied for asylum. The IJ denied asylum, ruling that Wife was firmly resettled in Country B. During the pendency of the BIA appeal, Country A assassinated husband in Country B. The case was remanded to the IJ. Wife argued that she could not return to Country B, as she had no status there; also; she argued it was unsafe for her.

The DHS opposed, arguing that because Wife had been once firmly resettled, she was and is forever barred from asylum. [There is case law supporting this exact conclusion]. The BIA, however, held that the “intent” of the firm resettlement bar is to disqualify applicants who had found refuge elsewhere, not to disqualify those who, even if firmly resettled, faced a “danger of persecution.”

Reprinted with permission.


About The Author

David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.