Matter of A-G-G (B.I.A. 5/12/2011)

Although asylum is a powerful form of relief for those who qualify for it because it offers at path permanent resident status without the need for a sponsor, it is subject to certain limitations.  One such limitation, as discussed in this case, is the doctrine of “firm resettlement.” The immigration statutes and regulations provide that an alien is ineligible for asylum if a finding is made that the alien was firmly resettled in another country prior to arriving in the United States.  This is the case because asylum is only intended for those who have nowhere else to turn.  Political refugees who found safe haven in another country should not travel to the U.S. in order to apply for asylum here.  What it means to be firmly resettled has been a source of contention and debate in the immigration courts, the BIA, and the federal circuit appellate courts.  In this case, the BIA tackled the issue head on, and issued controlling guidelines as to how it should be determined that an asylum applicant is firmly resettled.

The respondent in this case is a native and citizen of Mauritania.  He is a member of the black Wolof ethnic group.  In 1990, government soldiers arrested, beat, and transported him to a military camp.  While detained, he was forced to work as a slave with little food or shelter.  After his release from detention, the government of Mauritania forcibly deported him to the neighboring country of Senegal.  He stayed in Senegal for over eight years, where he married a Senegalese woman, had two children, and worked in a market selling clothing.  The Senegalese government issued him an identification number in its registry of foreigners.  During his stay in Senegal, the respondent did not have any problems with the authorities.

In 1999, the respondent managed to come to the United States, at which time he applied for asylum.  There was no question that he suffered from past persecution at the hands of his government’s agents on account of his membership in an ethnic group.  The primary issue in this case is whether or not he had firmly resettled in Senegal prior to his coming to the U.S.  A finding that he had been would serve as a bar to his being eligible for asylum.

The BIA articulated a four-step framework for adjudicators to make a determination as to whether an asylum applicant is firmly resettled.  First, the DHS bears the initial burden to make a showing that an applicant has been offered firm resettlement in another country.  This showing can be made with direct or indirect evidence.  Direct evidence of firm resettlement can include a formal offer (to the asylum applicant) by a foreign government of asylum, permanent residence, or citizenship.  A passport issued by the foreign government, a travel document, or anything which confers refugee status or permanent residence would be also considered direct evidence. 

If direct evidence is not available, the DHS may prove its case with indirect evidence, which may include the text of immigration laws or refugee procedures for the foreign country.  The length of stay in the country, family and business ties, property connections, the receipt of government benefits, the right to live and work indefinitely, and other social and economic ties are factors which support an indirect showing that an asylum applicant has been firmly resettled.  The BIA noted that if it is shown that the asylum applicant qualified for asylum, permanent residence, or citizenship in a foreign country, he or she would be considered firmly resettled even if no formal application for any of these benefits had been made.

Once the DHS establishes that an asylum applicant is firmly resettled, the burden shifts to the applicant to rebut the showing, by establishing that no settlement offer has been made, or that he did not qualify for resettlement under the laws of the foreign country.  In the third step of the BIA’s framework, the immigration judge must consider the totality of the evidence presented by both the DHS and the applicant to determine whether DHS’s showing of firm resettlement has been rebutted.  If the immigration judge finds that the DHS has met its burden of proof and the applicant has not rebutted DHS’s evidence, than the immigration judge should make a specific factual finding that the applicant has been firmly resettled.

The fourth and final step leaves the applicant with the burden of proving that he qualifies for an exception to the mandatory bar of firm resettlement.  If he is able to establish that an exception applies, he may be granted asylum.  If not, he will be ineligible to receive relief under asylum.

For the applicant in this case, the government did not establish that he had been firmly resettled in Senegal.  Although the applicant married a Senegalese citizen and lived there for eight years, there was no proof that any offer of resettlement had been made to him by the Senegalese government.  Also, it was not certain that his Senegalese wife could have sponsored him for permanent residence.  Senegalese law expressly permits a male Senegalese citizen to sponsor his spouse, but not the other way around (although his appears to be anachronistic and sexist, many foreign countries have similar restrictions in their immigration laws).  Based upon the facts of the case and the application of the BIA’s newly articulated framework, it was not clear that the asylum applicant had firmly resettled in Senegal prior to his coming to the U.S.