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Firm-Resettlement Bar To Asylum In The United States

Author: USA Asylum Lawyer Alena Shautsova

To qualify for asylum in the Untied States, a person must demonstrate the likelihood of persecution on account of a protected ground or past persecution, and “lack” of certain attributes that would bar a person from receiving asylum in the United States. To wit: a person cannot be convicted of a particular serious offence or be found to firmly resettled in a third safe country.

The law says the following:

The Attorney General has discretion to grant asylum to refugees. See 8 U.S.C. § 1158(b)(1)(A). An alien is statutorily barred from asylum if he/she was “firmly resettled in another country prior to arriving in the United States.” See id. § 1158(b)(2)(A)(vi). Does a work visa qualify for a “form resettlement”? How about a tourist visa?

An alien is firmly resettled if prior to arriving in this country, she “entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement,” unless the alien establishes that an exception applies. 8 C.F.R. § 1208.15. The necessary-consequence exception, relevant to this petition for review, provides that firm resettlement has not occurred if “entry into that country was a necessary consequence of [the alien’s] flight from persecution, that [the alien] remained in that country only as long as was necessary to arrange onward travel, and that [the alien] did not establish significant ties in that country . . . .” or conditions of residence were so “substantially and consciously restricted” by the authority of the country that he or she was not resettled. 8 C.F.R. § 1208.15.

A finding that an asylum applicant “firmly resettled” in a third country requires a fact specific analysis. A temporary visa, and a short travel would not bar a person from asylum in the United States. A work visa with an indefinite time period, probably would. If a frim resettlement is found, it does not matter that the country now would not accept the applicant due to an expired travel document or permanent residency.

The “restrictions” that immigration authorities would take into consideration include an ability to find housing and employment, such rights as travel, re-entry, naturalization etc. The length of stay in a third country in itself is not determinative.

What does an “offer of permanent resident, citizenship or some other type of permanent resettlement mean”? Does creation of conditions where one may apply for such a benefit sufficient? Or does one need to have an actual offer from the government? There is no right answer here. There are certain Circuit courts that answered this question adhering to the firm and direct offer (3rd, 7th and 9th) and there are other courts and the Board of Immigration Appeals that use “the totality of circumstances” approach. There is no doubt, that if a person possesses valid permanent residence from a different country, he/she will be found to be firmly resettled in that country. However, if a status is a temporary one (some countries give an asylee/refugee status for a limited number of years), an applicant may still have a chance to prove the opposite. The same goes for those applicants who tried their luck with other governments in obtaining a permanent status and failed. See Elizour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004).

The bottom line here is that each case is unique, and it would be applicant’s and applicant’s attorney’s burden to prove by a preponderance of evidence that the DHS is mistaken and he/she did not resettle in a third country.

23 August 2016
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