UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2511

GHENET DEBESAI NAIZGHI,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,1

Respondent.

No. 14-1530

GHENET DEBESAI NAIZGHI,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petitions for Review of Orders of the Board of Immigration 

Appeals.

Argued: October 30, 2014 Decided: September 10, 2015

 1 Loretta E. Lynch is substituted as Respondent for her 

predecessor, Eric H. Holder Jr., as Attorney General of the 

United States. See Fed. R. App. P. 43(c)(2).
2

Before TRAXLER, Chief Judge, and KING and THACKER, Circuit 

Judges.

Petitions for review denied by unpublished per curiam opinion. 

Chief Judge Traxler wrote a dissenting opinion.

ARGUED: Monalisa Dugue, Geoffrey James Heeren, VALPARAISO 

UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner. 

Corey Leigh Farrell, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Respondent. ON BRIEF: Sara Dietrich, 

Cecilia Lopez, Michelle Prasad, VALPARAISO UNIVERSITY LAW 

CLINIC, Valparaiso, Indiana, for Petitioner. Joyce R. Branda, 

Acting Assistant Attorney General, Terri J. Scadron, Assistant 

Director, Civil Division, Office of Immigration Litigation, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Ghenet Debesai Naizghi (“Petitioner”) fled Eritrea in 

1994, lived in Italy until 2009, and then applied for United 

States asylum status in 2010. The Government opposed 

Petitioner’s request for asylum, arguing that she was firmly 

resettled in Italy and, therefore, barred from asylum relief. 

Specifically, the Government argued that Petitioner was firmly 

resettled because she was eligible to apply for Italian 

citizenship; secured an Italian work permit; and was able to 

travel, work, and obtain medical care in Italy. For these 

reasons, the Immigration Judge (“IJ”) and the Board of 

Immigration Appeals (“Board”) denied Petitioner’s request. 

Petitioner sought review by this court. Because we believe the 

Board’s decision is supported by substantial evidence, we deny 

the petitions for review.

I.

Petitioner and her family are Pentecostal Christians, 

and Petitioner’s father was a Pentecostal preacher. Because of 

their religion, Petitioner and her family suffered persecution 

by the Eritrean government. In 1993, Eritrean soldiers abducted 

Petitioner’s father, and in 1994, soldiers forcibly entered 

Petitioner’s home and abducted her brother. Petitioner has not 

seen or heard from her father or brother since.
4

Petitioner obtained travel documents and fled to Italy

in 1994. She had no legal status and no family or social 

connections in Italy when she arrived. She managed to find work 

as a housekeeper and eventually applied for asylum. But for 

reasons absent from the record, the Italian government denied 

her asylum application. Therefore, Petitioner resided in Italy 

unlawfully from 1994 to 1996. Petitioner applied for a living 

subsidy from the Italian government, which was also denied. In 

1996, Petitioner obtained a temporary work permit, which

initially had to be renewed every year but later became 

renewable every other year. According to Petitioner’s testimony 

during her asylum hearing, she was required to show proof of 

employment and to pay taxes in order to renew the temporary work 

permit. Nonetheless, even at times when Petitioner was not 

employed, Italy consistently renewed her work permit over a 

period of 12 years. As such, Petitioner was able to reside in 

Italy from 1996 to 2008 on a string of temporary work permits. 

When she could afford rent, Petitioner rented a room in an 

apartment; when she could not, she lived with a nun.

Although her testimony was not supported with specific 

references to Italian law, Petitioner testified that Italian law 

permits individuals who have resided in Italy for ten years to 

apply for citizenship. Thus, Petitioner claims she became 

eligible to apply for Italian citizenship in 2004. Two years 
5

later, in 2006, Petitioner applied for citizenship. According 

to Petitioner’s uncontroverted testimony, to complete the 

application process she was “required . . . to go to the embassy 

of Italy in Eritrea and have [a] document translated and 

authenticated.” A.R. 150.2 Fearing that returning to Eritrea 

would expose her to the same fate that befell other members of 

her family, Petitioner submitted her application with all 

required forms except the authenticated document. Italy 

eventually rejected Petitioner’s citizenship application -- its 

reason for doing so is not in the record. However, Petitioner 

remained in Italy on her temporary work permit.

In 2008, while still in Italy, Petitioner was raped by 

patrons of the restaurant where she worked. By virtue of her 

temporary work permit, she received medical care at an Italian 

hospital. Petitioner’s testimony as well as the IJ’s findings 

indicate that the Italian government covered her medical 

expenses. Following the sexual assault, Petitioner traveled

back to Eritrea on August 6, 2008, to be with her mother. At 

the time, she did not intend to return to Italy. While in 

Eritrea, Petitioner did not attempt to obtain the required form 

needed for Italian citizenship. 

 2 Citations to the “A.R.” refer to the Administrative Record 

filed by the parties in this appeal.
6

On August 18, 12 days after she arrived in Eritrea, 

Petitioner was attending a prayer meeting at her mother’s home. 

Government soldiers interrupted the meeting and demanded to 

question Petitioner. When she hesitated to comply, the soldiers 

dragged Petitioner out of the house and beat her. The soldiers

then took her to another location, where they held her captive 

in a small, poorly ventilated structure. They beat, sexually 

assaulted, and starved her for eight days before her mother was 

finally able to successfully bribe the soldiers to release her. 

On September 8, 2008, Petitioner fled once again to 

Italy, intending to use the country as a stepping-stone for 

entry into the United States. She arrived with no job, but she 

was later able to resume work as a housekeeper pursuant to her 

temporary work permit, which remained active. In February 2009, 

the United States granted Petitioner a B-2 travel visa for a 

period of seven months. She left Italy for the United States on 

June 1, 2009. At that point, Petitioner had spent approximately 

14 years in Italy. Petitioner claims that after coming to the 

United States, her Italian legal documents, including her 

temporary work permit, were stolen. 
7

Petitioner applied for asylum in the United States on 

March 4, 2010.3 The Government served Petitioner with a Notice 

to Appear on April 20, 2010, alleging she had overstayed her B-2 

travel visa. Petitioner appeared before the IJ on April 30, 

2012, and conceded her removability, but she requested asylum 

and withholding of removal. The Government did not oppose 

withholding of removal, but argued that Petitioner was subject 

to the firm resettlement bar to asylum. The Government relied 

on Petitioner’s testimony regarding Italy’s citizenship 

application process, the amount of time she lived in Italy, the 

renewal of her work permit, and her ability to receive 

subsidized medical care.

The IJ granted Petitioner’s application for 

withholding of removal but denied her asylum petition because it 

concluded that she had been firmly resettled in Italy before 

arriving in the United States and was, therefore, barred from 

asylum relief. On November 25, 2013, the Board affirmed the 

IJ’s finding of firm resettlement, providing its own analysis. 

 3 By this point, Petitioner had overstayed her travel visa 

by two months, and during that time, she had not attempted to 

even begin the asylum process in the United States. 
8

Petitioner filed a timely petition for review with this court on 

June 4, 2014.4

II.

When the Board affirms the IJ’s opinion and 

supplements the IJ’s reasoning, as it did here, we review both 

opinions. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 

2014). We review for substantial evidence a Board’s decision 

that an individual is firmly resettled. See Mussie v. U.S. 

Immigration & Naturalization Serv., 172 F.3d 329, 331 (4th Cir. 

1999). Under this standard, we treat the Board’s findings as 

conclusive “unless any reasonable adjudicator would be compelled 

to conclude to the contrary.” Cordova, 759 F.3d at 337 

(internal quotation marks omitted).

III.

A.

The Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996 (“IIRIRA”) statutorily bars an alien

from being eligible for asylum if he or she was “firmly 

resettled in another country prior to arriving in the United 

 4 Petitioner filed two petitions for review. The first, No. 

13-2511, sets forth the arguments outlined in this opinion. The 

second, No. 14-1530, was filed in response to the Government’s 

motion to dismiss for lack of jurisdiction, which was denied. 

The second petition for review does not add any substantive 

arguments for our review.
9

States.” 8 U.S.C. § 1158(b)(2)(A)(vi). Although IIRIRA does

not define the term “firm resettlement,” the Code of Federal 

Regulations fills this definitional gap, defining “firm 

resettlement” 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 . . . .

8 C.F.R. § 1208.15. Additionally, the Board has provided a 

framework to streamline the case-by-case adjudication of asylum 

claims pursuant to this definition of firm resettlement. See

Matter of A-G-G-, 25 I. & N. Dec. 486, 500-03 (B.I.A. 2011).

The Board’s framework consists of four steps. In step 

one, the government proffers prima facie evidence that the 

petitioner has been firmly resettled in a third country. See AG-G-, 25 I. & N. Dec. at 501. If the government fails to 

present a prima facie case of an offer of permanent residence, 

the inquiry ends. If the government succeeds, then the court 

moves on to step two, which shifts the burden to the asylum 

applicant to show “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.” Id. at 503. Then, in step three, the IJ

evaluates the totality of the evidence to determine whether the 

applicant has, in fact, rebutted the government’s proffer. See
10

id. If the IJ determines the applicant effectively rebutted the 

government’s case, the applicant may be granted asylum. See id. 

But if the applicant has failed, the IJ proceeds to step four,

and the applicant must establish that she meets one of the 

regulatory exceptions to a finding of firm resettlement.5 See

id.

At the first step, the Government bears the initial 

burden of proffering prima facie evidence of firm resettlement. 

See A-G-G-, 25 I. & N. Dec. at 501. According to A-G-G-, the 

Government may carry its burden preferably via direct evidence 

or, in the absence of direct evidence, via sufficiently clear 

and forceful indirect evidence:

In order to make a prima facie showing 

that an offer of firm resettlement exists, 

the [government] should first secure and 

produce direct evidence of governmental 

documents indicating an alien’s ability to 

stay in a country indefinitely. Such 

documents may include evidence of refugee 

status, a passport, a travel document, or 

other evidence indicative of permanent 

residence. 

If direct evidence of an offer of firm 

resettlement is unavailable, indirect 

evidence may be used to show that an offer 

 5 There are two regulatory exceptions to the firm 

resettlement bar: the alien remained in the third country only 

for so long as necessary to secure onward travel, or the third 

country “substantially and consciously restricted” the alien’s 

residence such that “he or she was not in fact resettled.” 8 

C.F.R. §§ 1208.15(a), (b).
11

of firm resettlement has been made if it has 

a sufficient level of clarity and force to 

establish that an alien is able to 

permanently reside in the country. Indirect 

evidence may include the following: the 

immigration laws or refugee process of the 

country of proposed resettlement; the length 

of the alien’s stay in a third country; the 

alien’s intent to settle in the country; 

family ties and business or property 

connections; the extent of social and 

economic ties developed by the alien in the 

country; the receipt of government benefits 

or assistance, such as assistance for rent, 

food, 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.

Id. at 501-02 (footnote omitted).

This test “focuses exclusively on the existence of an 

offer.” A-G-G-, 25 I. & N. Dec. at 501. Indirect evidence is 

not afforded weight equal to that afforded to direct evidence: 

“according equal weight to indirect evidence, such as the 

country’s residence laws, length of an alien’s residence in an 

intervening country, or the alien’s intent, is inconsistent with 

the fact that only the government of the intervening country can 

grant an alien the right to lawfully and permanently reside 

there.” Id. Nonetheless, indirect evidence may

circumstantially demonstrate that the alien was offered 

permanent residence status, and the legal rights it entails, by 

a foreign country if “it has a sufficient level of clarity and 

force.” Id. at 502. 
12

While the Board did not mention what forms of indirect 

evidence are sufficient to prove firm resettlement, alone or in 

combination, it did indicate that some types of evidence carry 

less weight than others. For example, the Board held that a

lengthy period of residence in a third country cannot, by 

itself, establish a prima facie case of firm resettlement. Cf.

A-G-G-, 25 I. & N. Dec. at 501 (“Such a right ‘cannot be gained 

through adverse possession.’” (quoting Abdille v. Ashcroft, 242 

F.3d 477, 487 (3d Cir. 2001))). However, the Board made clear 

that “[t]he existence of a legal mechanism in the country by 

which an alien can obtain permanent residence may be sufficient 

to make a prima facie showing of an offer of firm resettlement.” 

Id. at 502 (emphasis in original). Furthermore, section 1208.15 

“only require[s] that an offer of firm resettlement was 

available, not that the alien accepted the offer.” Id. at 503. 

The Board justified this rule as necessary to protect “the 

purpose of the firm resettlement bar, which is to limit refugee 

protection to those with nowhere else to turn.” Id.

B.

We have held that when an agency interprets its own 

regulation, “the agency’s interpretation controls unless that 

interpretation is ‘plainly erroneous or inconsistent with the 

regulation.’” Dickenson-Russell Coal Co., LLC v. Sec’y of Labor, 

747 F.3d 251, 257 (4th Cir. 2014) (quoting Auer v. Robbins, 519 
13

U.S. 452, 461 (1997)). The parties agree that the Board’s 

decision in A-G-G- is “a reasonable interpretation of the firm 

resettlement statute and regulation, and should be given 

deference.” Gov’t’s Br. 23 n.3; see also Pet’r’s Br. 20. We 

also agree. 

C.

Applying the Board’s framework as laid out in A-G-G-, 

substantial evidence supports the Board’s conclusion that 

Petitioner was firmly resettled in Italy. The Government 

offered sufficient indirect evidence6 to present a prima facie 

case that Petitioner was firmly resettled in Italy before 

arriving in the United States, and Petitioner did not 

sufficiently rebut that evidence.

In order to make its prima facie case, the Government 

offered Petitioner’s uncontroverted testimony that, by virtue of 

her ten-year stay in Italy, she was eligible to apply for 

citizenship pursuant to Italian citizenship law. The Government

also proffered the duration of Petitioner’s stay in Italy; her 

temporary work permit, which she renewed several times; her 

ability to travel pursuant to the permit; her receipt of 

government subsidized medical care as a work permit holder; and 

 6 Neither party argues that the Government provided direct 

evidence. Thus, we proceed under the indirect evidence 

analysis.
14

her ability to obtain housing. This evidence is sufficient to 

shift the burden to Petitioner. See Mussie v. United States 

Immigration & Naturalization Service, 172 F.3d 329, 332 (4th 

Cir. 1999) (“A duration of residence in a third country 

sufficient to support an inference of permanent resettlement in 

the absence of evidence to the contrary shifts the burden of 

proving absence of firm resettlement to the applicant.” (quoting 

Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir. 1998))); Hanna v. 

Holder, 740 F.3d 379, 394 (6th Cir. 2014) (concluding that 

testimony of a petitioner and her father that the petitioner was 

granted “landed immigrant status” in Canada was enough for the 

Government to satisfy its prima facie case). 

At A-G-G- steps two and three, we believe substantial 

evidence supports the Board’s conclusion that Petitioner did not 

rebut the prima facie case of firm resettlement “by a 

preponderance of the evidence.” 25 I. & N. Dec. at 503.

Petitioner provided scant evidence that she did not receive an 

offer of citizenship from Italy or that she would not qualify 

for citizenship. See id. Indeed, we find specious her argument 

that she was unable to complete Italy’s citizenship process 

because she could not obtain a required form from Eritrea, but 

she then returned to Eritrea and still did not obtain the proper 

paperwork. Therefore, we cannot say that a “reasonable 
15

adjudicator would be compelled to conclude” that Petitioner was 

not firmly resettled in Italy. Cordova, 759 F.3d at 337. 

IV.

For the foregoing reasons, we deny the petitions for 

review.

PETITIONS FOR REVIEW DENIED
16

TRAXLER, Chief Judge, dissenting:

With respect to the views of my distinguished colleagues, I 

would grant the petition for review. In my view, Naizghi 

rebutted the Government’s evidence of an Italian offer of 

permanent status. She testified without contradiction that the 

Italian application process required her to return to Eritrea, 

the country from which she was fleeing persecution, and submit 

various authenticated documents through the Italian Embassy 

there. In my opinion, this is not an offer of permanent status 

by Italy. The fact that Naizghi retreated to Eritrea to be with 

her family after being raped in Italy and subsequently returned 

to Italy without the required paperwork does not convince me 

otherwise. Twelve days after her arrival, Naizghi was abducted 

by the government from a prayer meeting and subjected to a 

variety of abuses by her captors. After her mother secured her 

release by bribing officials, Naizghi returned to Italy. In my 

opinion, it would be unreasonable to expect her to remain in 

Eritrea to secure documentation. Accordingly, Naizghi satisfied 

her burden of rebutting the Government’s prima facie case. I 

therefore would grant Naizghi’s petition for review and allow 

her to continue seeking asylum in this country.