The BIA recently issued a decision where it concluded that an asylum seeker’s unwillingness or reluctance to accept a viable and available offer for permanent residence does not negate a firm resettlement finding. Matter of K-S-E, 27 I& N Dec. 818 (BIA 2020).

Firm Resettlement Law in General

An asylum applicant is ineligible if he or she was “firmly resettled in another country prior to arriving in the United States.” INA § 208(b)(A)(vi). Since 1996, circuit courts have issued a litany of decisions—sometimes conflicting—analyzing the firm resettlement bar. The case law essentially established two approaches to analyzing the firm resettlement bar: the “direct offer” approach and the “totality of circumstances” approach. In an effort to harmonize these two approaches, the BIA issued decision that involved a four-step process in making a firm resettlement determination. Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011).

First, the Department of Homeland Security (DHS) bears the burden of presenting prima facie evidence of an offer, or pathway to an offer, of firm resettlement. An offer of firm resettlement can be supported with direct evidence such as evidence of a foreign immigration law. If direct evidence is unavailable, then indirect evidence can be used as evidence. Indirect evidence includes the following: immigration laws or refugee process of the country of proposed resettlement; the length of stay and intent of stay in the third country; the presence of family, social and economic ties in the third country; receipt of government assistance such as rent, food, and transportation; and legal rights, such as the right to work, and travel freely. The BIA specifically noted that if the asylum applicant chooses not to accept the offer, that would not undermine the prima facie evidence of an offer.

Second, if there is proof of a prima facie offer of firm resettlement, the asylum applicant can rebut the DHS’s prima facie evidence of an offer of firm resettlement by showing by a preponderance of the evidence that such an offer has not, in fact, been made or that he or she would not qualify for it.

Third, the Immigration Judge (IJ) will consider the totality of the evidence presented to determine if the asylum applicant has rebutted the DHS’s evidence of an offer of firm resettlement.

Fourth, if the IJ determines that the asylum applicant has been firmly resettled, then the burden shifts again to the asylum applicant to establish that an exception to firm resettlement applies by a preponderance of the evidence. 8 CFR §§ 1208.15(a) and (b).

The exceptions to a firm resettlement finding are restrictive conditions and/or lack of significant ties. If an asylum seeker’s entry into the third country was a necessary consequence of his or her flight from persecution, and he or she remained in that country only as long as was necessary to arrange onward travel, then he or she did not establish significant ties in that country. Additionally, if the government of the third county so substantially and consciously restricted the conditions of the asylum seeker’s residence in that country, then the resettlement bar does not apply. Restrictive conditions include lack of housing, employment opportunities, country conditions, the ability to own property, travel and access education, as well as evidence of persecution or discrimination by the government of the third country.

Matter of K-S-E-

In Matter of K-S-E-, the respondent, from Haiti, lived in Brazil before coming to the United States to seek asylum. In applying the four-step test articulated in Matter of A-G-G-, the BIA concluded that the respondent was firmly resettled.

First, BIA found that DHS had met its burden of establishing an offer of permanent residence with evidence of a joint communique from the Brazilian Minister of Labor and Social Security and Minister of Justice authorizing permanent residency for a certain number of Haitians living in Brazil. The respondent testified that he knew of the option of applying for permanent residency status but did not accept the offer because of the cost and time involved, and his fear of local crime in Brazil. The IJ and the BIA concluded that DHS made a prima facie showing of an offer of firm resettlement notwithstanding the respondent’s unwillingness to accept the offer.

Second, the BIA concluded that the respondent failed to rebut DHS’s evidence of an offer of firm resettlement. The respondent argued that the offer was not permanent because he would have to renew the residency after five years, and the renewal was contingent upon a showing that he was employed. The BIA found the respondent’s testimony speculative that he may not be employed at the time of his residency renewal.

Third, the BIA, in weighing the totality of the circumstances, concluded that DHS met its burden of proving an offer of firm resettlement, even though the respondent did not accept the offer.

Finally, the BIA concluded that exceptions did not apply because the respondent’s stay in Brazil was not “too tenuous” and that the Brazilian government’s basic treatment of him was not restrictive. The BIA noted respondent’s testimony regarding the poor treatment of Haitians in Brazil based on their race and their vulnerability to crime but concluded that there was no evidence that the Brazilian government had condoned the mistreatment. Based on that the BIA concluded that the exception did not apply.

Conclusion

Many asylum seekers are forced to travel through third countries before coming to the United States and many may apply for status, or be eligible to apply for status, in these countries, even though they do not intend to stay permanently. Nevertheless, the laws of asylum do not necessarily protect asylum seekers who stay temporarily in third countries and fails to consider one critical aspect – the asylum seeker’s intentions.