Cite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
Matter of D-X- & Y-Z-, Respondents
Decided January 6, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A facially valid permit to reside in a third country constitutes prima facie evidence
of an offer of firm resettlement pursuant to section 208(b)(2)(A)(vi) of the Immigration
and Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(vi) (2006), even if the permit was
(2) Where an asylum applicant who has resettled in a third country travels to the
United States or the country of claimed persecution and then returns to the country
of resettlement, he or she has not remained in that country “only as long as was necessary
to arrange onward travel” for purposes of establishing an exception to firm resettlement
pursuant to 8 C.F.R. § 1208.15(a) (2011).
FOR RESPONDENTS: Anders L. Johnson, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Cara D. Cutler, Assistant Chief
BEFORE: Board Panel: MALPHRUS, MULLANE, and CREPPY, Board Members.
MALPHRUS, Board Member:
In a decision dated May 25, 2006, an Immigration Judge found the
respondents removable and granted the female respondent’s asylum
application from China. The Immigration Judge found the male respondent
ineligible for asylum because of his firm resettlement in Belize, ordered him
removed from the United States to Belize, and granted him withholding of
removal to China. The Department of Homeland Security (“DHS”) has
appealed from the Immigration Judge’s grant of asylum to the female
respondent. The male respondent has appealed from the Immigration Judge’s
denial of his asylum application. The DHS’s appeal will be sustained, the
male respondent’s appeal will be dismissed, and the record will be remanded
to the Immigration Judge.
We review the findings of fact made by the Immigration Judge to determine
whether they are “clearly erroneous.” 8 C.F.R. § 1003.1(d)(3)(i) (2011);
see also Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008). We review de novo
all questions of law, discretion, and judgment, including the question whetherCite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii);
see also Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 212-13 (BIA 2010).
The DHS does not contest the Immigration Judge’s finding that both
respondents were credible witnesses, and we find no clear error in that
determination. We review de novo the question whether the facts
presented by the respondents support a determination of firm resettlement.
Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011).
The Immigration Judge concluded that the female respondent had not been
firmly resettled in Belize. See section 208(b)(2)(A)(vi) of the Immigration
and Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(vi) (2006); 8 C.F.R. § 1208.15
(2011). The female respondent had a Permit to Reside in Belize, which
the Immigration Judge considered to be an important indication of firm
resettlement. However, as the Immigration Judge noted, a presumption of firm
resettlement can be rebutted by a showing that the asylum applicant remained
in the third country “only as long as was necessary to arrange onward travel”
and “did not establish significant ties in that country.” 8 C.F.R. § 1208.15(a).
According to the Immigration Judge, the female respondent was brought to
Belize for the purpose of escaping China and continuing to the United States.
The Immigration Judge found that the female respondent did not work
or establish significant ties in Belize during the months that she resided there
and therefore concluded that she was not firmly resettled in that country.
In Matter of A-G-G-, 25 I&N Dec. at 500-03, which was decided after the
Immigration Judge’s ruling in this case, we set forth a four-step framework for
determinations involving firm resettlement as a mandatory bar to asylum.
In the first step, the DHS bears the burden of presenting prima facie evidence
of an offer of firm resettlement. Id. at 501. To make such a showing, the DHS
should first secure and produce direct evidence of governmental documents
indicating an alien’s ability to stay in a country indefinitely, which may include
evidence of refugee status, a passport, a travel document, or other evidence
indicative of permanent residence. Id. at 501-02.
Here, the female respondent’s permit constitutes prima facie evidence
of an offer of firm resettlement. The permit allowed her to live in Belize and
to travel in and out of that country. The female respondent was able to obtain
a nonimmigrant visa to visit the United States by presenting her permit along
with her Chinese passport, and she returned to Belize using these documents.
The male respondent indicated that he was not told of any restrictions on the
permit that would limit the holder’s ability to work in Belize.
In the second step of our firm resettlement analysis, 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. Matter of A-G-G-,
25 I&N Dec. at 503. The respondents have sought to rebut the presumptionCite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
of an offer of firm resettlement by asserting that the permits were obtained
by fraud. The respondents paid a middleman for the permits, and they do not
know whether they were issued by the Belize Government.
It is well settled that an alien is not faulted for using fraudulent documents
to escape persecution and seek asylum in the United States. See Matter
of Pula, 19 I&N Dec. 467, 474 (BIA 1987);see also Singh v. Holder, 638 F.3d
1264, 1271 (9th Cir. 2011); Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir.
2007). However, the problem in this case is not with the fraudulent nature of
the documents per se. Rather, the respondents used fraudulently obtained
documents that permitted them to firmly resettle in a third country where they
were not at risk of persecution. As noted by the Immigration Judge, the
permits are facially valid. Even if the respondents used some form of fraud or
bribery through a middleman to obtain them, there has been no showing that
they were not issued by the Belize Government. Furthermore, the female
respondent used her permit to reenter Belize after visiting the United States.
Following the Immigration Judge’s decision, the United States Court
of Appeals for the Ninth Circuit rejected an asylum applicant’s claim that her
recognition as a national of Taiwan should be disregarded as evidence of firm
resettlement because it was fraudulently obtained. See Su Hwa She v. Holder,
629 F.3d 958, 962-64 (9th Cir. 2010) (finding that the DHS met its initial
burden of showing firm resettlement and that there was some “government
dispensation” where the applicant was recognized as a national of Taiwan,
even though that status was fraudulently obtained). Other circuits have
similarlyrejected claims that a fraudulentlyobtained immigration status should
undercut a finding of firm resettlement. See Firmansjah v. Gonzales, 424 F.3d
598 (7th Cir. 2005) (holding that the fact that an asylum applicant obtained
resident status in Singapore through her parents, who fraudulently obtained
their permanent resident status, did not rebut evidence of firm resettlement
where there was no evidence to indicate that Singapore officials ever
attempted to revoke her parents’ status); Salazar v. Ashcroft, 359 F.3d 45, 51
(1st Cir. 2004) (finding that the facial validityof a Venezuelan residence stamp
was sufficient to create a presumption of firm resettlement, despite the asylum
applicant’s testimony that he paid an unidentified person to obtain the stamp,
where no evidence was produced that it was not valid or that irregularities
would result in its eventual invalidation by the Venezuelan Government).
More generally, we note that aliens who have obtained an immigration
status by fraud should not be permitted to disavow that status in order
to establish eligibility for another type of relief. Cf. Matter of Ayala, 22 I&N
Dec. 398 (BIA 1998) (rejecting an alien’s claim that he was eligible for
a waiver because he was not “lawfully admitted” for permanent residence
on account of his concealed fraudulent criminal activity at the time of his
admission). Accordingly, for these reasons, we hold that the respondents’Cite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
claim of fraud in obtaining permits to reside in Belize does not rebut the
DHS’s prima facie evidence of firm resettlement in that country.
In the third step of our firm resettlement analysis, we consider the totality
of the evidence presented by the parties to determine whether the alien has
rebutted the DHS’s evidence of an offer of firm resettlement. As we stated in
Matter of A-G-G-, 25 I&N Dec. at 501, our analysis of firm resettlement
“focuses exclusively on the existence of an offer.” But we also consider
indirect evidence that an alien is able to permanently reside in the country,
such as the country’s residence laws; the length of the alien’s stay in the third
country; the alien’s intent; family ties and business or property connections;
social and economic ties; receipt of government benefits or assistance; and
whether the alien had legal rights, such as the right to work and enter and exit
the country. Id. at 502.
Here, neither the female respondent’s relatively short residence in Belize,
nor her lack of employment in that country rebuts the DHS’s evidence, which
consists of a facially valid residence permit. She did not work, but she made
no claim or showing that it was because she was ineligible to, and her husband
did work. Further, her claim that she obtained the permit for the purpose
of enabling her to transit through Belize to seek asylum in the United States
is undercut by the fact that she traveled to the United States and
voluntarily returned to Belize.
In the final step of the analysis, an asylum applicant has the burden
to establish by a preponderance of the evidence that an exception to firm
resettlement applies. Matter of A-G-G-, 25 I&N Dec. at 503;see also 8 C.F.R.
§ 1208.15. One exception is that the applicant’s entry into the 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.”
8 C.F.R. § 1208.15(a). We agree with the DHS that the female respondent did
not establish the applicability of this exception because she did not remain in
Belize only as long as it was necessary to arrange onward travel. After
receiving her permit, she traveled to the United States and then voluntarily
returned to Belize. See Vang v. INS, 146 F.3d 1114, 1115-17 (9th Cir. 1998)
(finding firm resettlement, in part because the alien used valid travel
documents to travel abroad and return to France, and rejecting the alien’s
argument that the expiration of his documents after he entered the
United States should affect the disposition of his asylum claim).
The other exception is that the applicant must establish that the conditions
of her residence were “so substantially and consciously restricted” by the
authority of the government that she was not, in fact, resettled. 8 C.F.R.
§ 1208.15(b). The female respondent did not establish this exception. In fact,
she presented no evidence of restrictions on her residence in Belize, and thereCite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
is no indication that she would have had any difficulty residing there
indefinitely. She did not claim to have faced any harassment, discrimination,
or persecution in Belize. Cf. Andriasian v. INS, 180 F.3d 1033, 1043 (9th Cir.
1999) (finding no firm resettlement where the asylum applicant’s stay was
disrupted by harassment, discrimination, and threats to his physical safety,
including a death threat, in the third country to which he had fled before going
to the United States). Accordingly, we find that the female respondent was
firmly resettled in Belize and that she is subject to the mandatory bar to asylum
in section 208(b)(2)(A)(vi) of the Act.
The male respondent was also firmly resettled in Belize prior to coming
to the United States. He, too, had a permit that allowed him to reside
in Belize, and he acknowledged that he was not aware of any restrictions
placed on his residence. He admitted that he did not seek any other legal status
for himself in Belize, through asylum or otherwise, and there is no claim that
his wife did either. For the same reasons as those stated regarding the female
respondent, we find that the male respondent’s possession of a facially valid
permit indicates that he was firmly resettled, even if the permit was
fraudulently obtained. See Su Hwa She v. Holder, 629 F.3d at 962.
Further, like the female respondent, the male respondent did not meet his
burden of rebutting the presumption pursuant to 8 C.F.R. § 1208.15(a) because
he did not establish that he remained in Belize only as long as was necessary
to arrange onward travel. After receiving his permit, the male respondent went
to China to marry his wife and then returned to Belize, and he finally entered
the United States 9 months after receiving his permit. He has not produced
evidence that he could not have traveled to the United States sooner. See
Su Hwa She v. Holder, 629 F.3d at 963 (“Absent from the record is any
discussion of how She arranged onward travel or whether she could have
prudently done so within six months of obtaining a passport.”). The female
respondent had traveled to the United States a month earlier for a visit, and the
male respondent did not establish that he could not have traveled with her
at that time or even earlier.
Also, the male respondent, who worked in Belize, did not introduce
evidence to establish that the conditions of his residence were “so substantially
and consciously restricted” by the authority of the Belize Government that he
was not, in fact, resettled. 8 C.F.R. § 1208.15(b). We therefore agree with the
Immigration Judge that the male respondent was firmly resettled pursuant
to section 208(b)(2)(A)(vi) of the Act.
It is a well-established concept that an alien who has firmly resettled
in another country prior to coming to the United States is not eligible for
asylum. Matter of A-G-G-, 25 I&N Dec. at 489-94 (outlining the history of the
firm resettlement bar). “[T]he core regulatory purpose of asylum . . . is ‘not
to provide [applicants] with a broader choice of safe homelands,’ but rather,Cite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737
to ‘protect [refugees] with nowhere else to turn.’” Tchitchui v. Holder,
657 F.3d 132, 137 (2d Cir. 2011) (quoting Sall v. Gonzales, 437 F.3d 229,
233 (2d Cir. 2006)). For the reasons discussed above, we conclude that the
respondents obtained firm resettlement in Belize and are thus now ineligible
for asylum in the United States. Accordingly, the DHS’s appeal will be
sustained and the male respondent’s appeal will be dismissed.
Although a mandatory bar to asylum applies to the respondents,
firm resettlement does not preclude eligibility for withholding of removal
under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (2006). Su Hwa
She v. Holder, 629 F.3d at 962. The Immigration Judge granted the male
respondent’s request for withholding of removal from China, and the DHS did
not appeal that ruling. The record will be remanded to the Immigration Judge
to consider the female respondent’s request for withholding of removal from
China under section 241(b)(3) of the Act.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The appeal of the male respondent is dismissed.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision with respect to the female respondent.
Cite as 25 I&N Dec. 664 (BIA 2012) Interim Decision #3737