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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

fraudulently obtained.

(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

Counsel

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 whether
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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 presumption
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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’
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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 there
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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,
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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.