Interim Decision #2905 

MATTER OF PORTALES, et al. 

In Exclusion Proceedings 

A-24712281 

Decided by Board May 14, 1982 

(1) Cuban applicants, who were granted refugee status by Peru and were permitted to 

live and be employed without restriction in that country, are held to be firmly resettled 

in Peru prior to their arrival in the United States, and, therefore, not entitled to refugee 

status in this country. 

(2) Notwithstanding the living and employment conditions experienced by the Cuban applicants in Peru, they are deemed firmly resettled in the absence of facts necessary to 

establish that the conditions of their residence were substantially and consciously restricted 

by the authorities of that country. • 

(3) In view of the fact that a grant of an applicant's request for asylum in the United 

States is limited to 1 year, eubjeet to annual review, and may be terminated for several 

reasons including changed circumstances in the asylee's country, it is not significant as 

to the issue of resettlement that Peruvian refugee documents issued to the applicants 

were only valid for a2-year period. 

(4) An applicant whose request for asylum is granted does not enter the United States as 

a lawful permanent resident since that status is acquired, if at all, only after the alien 

has been physically present in the United States for at least 1 year from the date he was 

granted asylum. 

EXCLUDABLE; Act of 1952—Sec. 212(a)(20) (5 U.S.C. 11820/C2011 — Immigrants—not in 

possession of valid, unexpired immigrant visas or other 

valid entry documents 

ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE: 

Philip M. Zyne, Esquire Leonard Leopold 

Walters, Costanzo, Miller & Russell John C. Midanek 

Suite 500, 330 Building General Attorneys 

330 North Biscayne Boulevard 

Miami, Florida 33132 aorald S. Hurwitz 

Appellate Trial Attorney 

By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In a decision dated September 24, 1981, an immigration judge found 

the applicants excludable under section 212(a)(20) of the Immigration _ 

and Nationality Act, 8 U.S. C. -1192(v.)(20), as intending immigrants not 

in possession of valid immigrant visas or other valid entry documents, 

denied their requests for asylum and withholding of deportation, and 

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ordered them excluded and deported. The applicants have appealed. 

The appeal will be dismissed. 

Applicants, eight natives and citizens of Cuba (see Appendix), participated in the exodus from that country in the Spring of 1980 when they 

flew to Peru with approximately 400 other Cubans. The applicants lived 

in Lima, Peru, between April 1980 and September 16, 1981, when they 

departed on a commercial airline for Miami, Florida, seeking admission 

to the United States as refugees. As the applicants did not appear to the 

inspecting officers to be admissible, they were detained and placed in 

exclusion proceedings. 

At their exclusion hearing, which began on September 18, 1981, and 

concluded on September 24, 1981, the applicants, who were represented 

by counsel, conceded excludability under section 212(a)(20) of tlic Act, 

admitting that they were aliens, that it was ,their intent to live and 

work in the United States, and that they did not have immigrant visas 

or other valid entry documents entitling them to enter this countrk. The 

applicants were properly found excludable smiler section 212(s)(20) of 

the Act. Matter of Castellon, 17 I&N Dec. 616 (BLA. 1981). 

The applicants renewed their requests for asylum, previously, denied 

by the District Director, with the immigration judge, claiming persecution based on political opinion.' Their applications (Form I-589) reflect, 

with one exception, that neither the applicants nor any member of their 

families have ever been imprisoned or otherwise persecuted in Cuba, 

that they have not participated in any specific, acts of political expression 'or organizations considered hostile to the interests of the Cuban 

government, and that with the exception of seeking asylum at the 

Peruvian Embassy in Havana in April 1980, they have never been politically active or expressed opposition to the Castro regime. One of the 

applicants was imprisoned for 5 years, between 1966 and 1971, for 

expressing his opposition to Castro and the Communist Party. He continued to live and work in Cuba following his release in 1971 without 

further incident. All of the applicants opposed the present government 

in Cuba and believed that they would be imprisoned if returned to that 

country because they -sought asylum in the Peruvian Embasy. Their 

applications further reflect that they were granted refugee status by 

Peru. 

The record contains a State Department telegram from the American 

Embassy in Lima, Peru (Ex. 16), which states that the applicants were 

given nonimmigrant resident refugee status, that with this status the 

applicants are entitled to work, attend school, practice their religion, 

' An application for asylum under section 208(a) of the Act, 8 IL S.C. 1158(a), made after 

the institution of exclusion or deportation proceedings shall also be considered as a request 

for withholding of exclusion or deportation pursuant to section 243(h) of the Act, 8 U.87C. 

1258(h). 8 C.F.R. 208. See Matter oA,Rodriguez-Pa(ma, 17 I&N Dec. 465 (BIA 1980). 

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and are required to pay taxes. It states that the refugee documents 

issued by Peru to the applicants were valid for 2 years. The telegram 

further states that the applicants are still considered refugees in Peru 

and are returnable to Peru as such. 

The applicants testified that during the 16 months they lived in Peru 

the government provided the Cuban refugees there, including the 

applicants, with tents and food, and Medical services were provided on 

an emergency basis only. They testified that the Peruvian economy was 

poor, that unemployment was high, and that they were not able to find 

employment or afford permanent housing.The applicants admitted that 

they could freely travel throughout Peru and were not prohibited, from 

seeking employment. They also admitted that the conditions under which 

they lived in Peru were not the result of discrimination but rather the 

economic conditions of that country. They stated that they made no 

attempts to regularize their status in Peru, that it was not their intent 

to permanently reside there, and that they considered themselves transients ultimately destined for the United States 

At the conclusion of the hearing, the immigration judge denied the 

applicants' requests for asylum and withholding of deportation. He found 

that the applicants had not established that'they would be persecuted if . 

returned to Cuba. He further found that they had been firmly resettled 

in Peru, that they had been granted asylum in that country, and that 

they were therefore not eligible ft. r the requested relief. 

We conclude that the applicants' requests for asylum and withholding 

of deportation were properly denied. An applicant for asylum under 

section 208(a) of the Act must show that, if deported; he would be 

subject to persecution based on his race, religion, nationality, member = 

ship in a particular social group, or political opinion. To meet this burden 

of proof, an alien must demonstrate' a clear probability that he will be 

persecuted if returned to his country or a well-founded fear of such 

perseeutinn. 8 C.F.R. 208.5. See Matter of Dunar, 14 I&N. Dec. 310 

(BIA. 1973). 

The applicants have not shown that they will be persecuted if returned 

to Cuba. The mere assertion of persecution is not sufficient. Matter of 

Castellon, supra. The record reflects that neither applicants nor their 

families have been arrested, imprisoned, or otherwise persecuted in 

Cuba. It reflects that the applicants have not been politically active and 

have not participated in organizations considered hostile to the interests 

of the Cuban government. Although the applicants sought asylum in the 

Peruvian Embassy, they were issued valid passports and exit permits 

by the Cuban government and permitted to lawfully depart that country 

without incident The only applicant who claimed that he was imprisoned for publicly expressing his opposition to the' Castro regime has 

lived in Cuba since 1971 without further incident. We find no evidence 

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that the applicants were persecuted nor a clear probability that they-will 

be if returned to Cuba. 

We further conclude that the applicants, prior to their arrival in the 

United States, were firmly resettled in Peru and that they are not 

entitled to classification as refugees. An alien is deemed firmly resettled 

if offered permanent resettlement by another country as a consequence 

of his flight from persecution, unless it is established that the conditions 

of his residence in that country have been substantially and consciously 

restricted by the authorities of that country. 8 C.F.R. 207.1(b),208.8(f) 

(1)(5), and 208.14. See Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971); 

Matter of Lam, Interim Decision 2857 (BIA 1981); Matter of Kwan, 14 

I&N Dec. 499 (R.C. 1973). 

The record establishes that the applicants sought asylum in the 

Peruvian Embassy in Havana, Cuba, and that as a result they were 

granted refugee status' by Peru and flown out of Cuba. The Peruvian 

government provided the applicants with food, limited medical attention, 

and the only available living accommodations, a tent city. The applicants 

were permitted to freely travel throughout the country, were authorized to accept employment, attend school, and practice their religious 

preferences. They were issued refugee documents valid for 2 years. The 

applicants fled Cuba, claiming persecution. That claim was extinguished 

when they were granted refuge in Peru. Furthermore, there is no indication in the record that the Peruvian government intends to terminate 

the refugee status previously granted the applicants or that the refugee 

documents issued to them are not renewable. 

The applicants argue on aPpeal that the living conditions they were 

subjected to in Peru, their inability to obtain suitable employment, and 

the 2-year limitation on the validity of their refugee documents clearly 

demonstrate that they were not firmly resettled. We disagree. The 

living conditions and inability to obtain employment experienced by the 

applicants appear related to Peru's ecomony, rather than the conscious 

restriction of benefits by the authorities of that country. The applicants 

were authorized to accept employment and it is not clear that they 

exhausted existing employment opportunities. Nor is it significant that 

the refugee documents issued the applicants were only valid for a 2-year 

period. A grant of an applicant's request for asylum in the United States 

is limited to 1 year, subject to annual review, and may be terminated for 

several reasons, including changed circumstances in the asylee's country. 

8 C.F.R. 208.8(e), 208.10(e),and 208.15. An applicant whose request for 

asylum is granted does not enter the United States as a lawful permanent resident. That status is given, if at all, only after the alien has been 

physically present in the United States for at least 1 year from the date 

he was granted asylum_ 8 U.14 '..K. zo9.1 and 209.2. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

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APPENDIX 

A24 712 279 GONZALEZ, Sol Angel 

A24 712 280 FERNANDEZ, Jose Luis 

424 712 281 PORTALES, Victor 

424 712 299 MARTINEZ, Pedro Danislao 

424 712 300 HERNANDEZ-Arencibia, Martha 

A26 002 172 PEREZ-Aguiar, Carmen Nancy 

A26 012 882 BARRERA-Perez, Niurka 

A26 012 883 RARRERA-Perez, Marialys 

243 .