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ASYLUM - THE RESETTLEMENT BAR AND HOW TO OVERCOME IT IN IMMIGRATION COURT

01-02-2015


The Board of Immigration Appeals in the Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011), once again modified the resettlement bar to asylum applications from previously being a discretionary bar to a permanent bar, if the Department of Homeland Security (DHS) provides sufficient evidence that the Respondent has in fact made a firm resettlement in another country. However, the inquiry is not as simple as it sounds and there are many ways to overcome the resettlement bar. The purpose of this blog is to give a basic overview of the current law relating to this issue. If you find yourself in such a situation having an experiences attorney by your side that is familiar with this area of law would tremendously benefit you in overcoming this obstacle in obtaining asylum in the United States.

Section 208(b)(2)(A)(vi) of the Act provides that an alien is ineligible for asylum if “the alien was firmly resettled in another country prior to arriving in the United States.” The term “firm resettlement” is defined in the regulations set forth at 8 C.F.R. § 1208.15 as follows:

An alien is considered to be firmly resettled if, prior to arrival in the United States, he or 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 he or she establishes:

(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or

(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes the right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.

As laid out in the regulations themselves the law is not that clear and there are two major exceptions to the firm resettlement rule, namely 1) the resettlement being a necessity as part of getting away from persecution in the Respondents home country or; 2) because Respondent’s authority was restricted in the country of claimed resettlement he/she was not in fact resettled in that country.

In the Matter of A-G-G- the Board set the framework for the Immigration Court in determining whether a Respondent has been firmly resettled in another country prior to entering the United States.

In the first step of the analysis, the DHS bears the burden of presenting complete evidence of an offer of firm resettlement by the country it claims Respondent has firmly resettled in. DHS is able to meet this requirement by providing either direct evidence such as: evidence of refugee status, a passport, a travel document, or other evidence indicative of permanent residence. DHS could also meet this burden by producing indirect evidence such as: the immigration laws or refugee process of the country of proposed resettlement; the length of the aliens stay in a third country; the alien’s intent to settle in that country; family ties and business or property connections; the extent of social and economic ties developed by the alien in that country; the receipt of government benefits or assistance, such as assistance for food, rent 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.

Once DHS has met their requirement of producing evidence of firm resettlement by the Respondent, the burden then shifts to the Respondent to show by a preponderance of the evidence that such an offer of firm resettlement has not, in fact been made, or that he or she would not qualify for it. The rebuttal may include evidence regarding how a law granting permanent residence to an alien is actually applied and why the alien would not be eligible to remain in the country in an official status. Having a San Diego immigration lawyer by your side in this phase of the process could help you tremendously in overcoming the governments claims. The attorney will be able to gather documents, review your documents and make arguments to the immigration judge convincing him that you did not in fact settle in the country claimed by the government, or even if you did that one of the exceptions applies to your case.

Once the evidence is presented from both parties the Immigration Judge will consider the totality of the evidence presented by the parties to determine whether an alien/Respondent has rebutted the DHS’s evidence of an offer of resettlement. If the Immigration Judge finds that the Respondent/alien has not rebutted the DHS’s evidence, the Immigration Judge will find the alien firmly resettled. In the final step of the framework, if the Immigration Judge finds the alien firmly resettled, the burden then shifts to the alien pursuant to 8 C.F.R. §§ 1208.15 (a) and (b) to establish that an exception to firm resettlement applies by a preponderance of the evidence. If the alien establishes an exception, the alien can be GRANTED asylum. If the alien fails to establish an exception, he or she will be subject to the MANDATORY bar for asylum.

As laid out in the blog above the law relating to the firm resettlement bar is quite complex and the government is always looking for anything they can get their hands on to deny you the benefits of obtaining asylum in the United States. Having a strong, knowledgeable lawyer by your side who is familiar with the process and is familiar with the rules of immigration courts in San Diego will increase your chances of overcoming this obstacle in obtaining asylum in the United States and being on your way to becoming a United States citizen.



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