Firm Resettlement in Asylum Cases
One of the most difficult questions regarding asylum eligibility is whether an applicant is “firmly resettled” in a third country barring him from being statutory eligible. A typical scenario includes these facts: a political activist is a national of country A. He seeks refuge in country B after he received threats to his life. He stays in country B for six years. While there he does not receive any offers for permanent status, is unable to work, and his movement is severely limited. He leaves country B to the United States and files for asylum. Is he eligible for asylum?
Under the law, an applicant for asylum is not eligible for asylum if the government proves that he was firmly resettled in a third country before coming to the United States, unless he proves: a) that his entry was necessary for his flight from persecution; or b) that his conditions were so “substantially and consciously” restricted by the authority of the country of refuge. See 8 CFR 208.15. The frame for making firm resettlement determinations focuses exclusively on the existence of an offer of permanent residence in the alleged country of resettlement. Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011). The government bears the initial burden of proof to show that an applicant for asylum received an offer for permanent residence in the alleged country of resettlement. Id. at 501-02. The Eleventh Circuit has not set forth a framework for “firm resettlement” determinations. Id. at 496.
In A-G-G-, a citizen of Mauritania applied for asylum, alleging that he was tortured by the Army for participating in anti-government demonstrations. Id. at 486. He was forcibly deported to Senegal where he married a Senegalese woman, remained there for eight years, had two children, and sold items at a market. Id. He came to the United States and applied for asylum. Id. In removal proceedings, the Immigration Judge granted asylum, rejecting the Service’s argument that he was firmly resettled in Senegal. Id. at 487. The Service appealed the decision to the Board. Id.The Board remanded the case to the Immigration Judge after setting forward a three step framework for “firm resettlement” determinations. Id. at 500-01. The Board adopted the “direct offer” approach, where the government has to show by direct evidence that the applicant received a direct offer for permanent residence in the third country by direct evidence. Id. If direct evidence does not exist, the government could use indirect evidence, including “the immigration laws or refugee process of the country of proposed resettlement; the length of the alien’s stay in a third country; the alien’s intent to settle in the country; family ties and business or property connections; the extent of social and economic ties developed by the alien in the country; the receipt of government benefits or assistance, such as assistance for rent, food, and transportation; and whether the alien had legal rights normally given to people who have some official status, such as the right to work and enter and exit the country.“ Id. at 502. In the third step, the burden shifts to the Applicant to establish that he was not firmly resettled in the third country. Id. at 503.
Applying that analysis, the person is our hypothetical is arguably eligible for asylum since he did not receive an offer of permanent residence in country B.
If you fear returning to your country because of past or future persecution, please contact Tucker & Ludin P.A. at 727-572-5000 for a legal consultation or visit www.tuckerludin.com for more information.