Ninth Circuit Addresses Exception to Firm Resettlement Bar

The Ninth Circuit has determined that if the government of the third country in which an asylum seeker has resettled is unable or unwilling to protect the asylum seeker from persecution by private parties, the asylum seeker qualifies for an exception to the firm resettlement bar. In this case, which involved a Somali citizen who had obtained refugee status in South Africa, the immigration judge had paradoxically found the petitioner firmly resettled in South Africa, but granted withholding of removal based on past persecution in South Africa.

The full text of Aden v. Wilkinson can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf

BIA Finds Haitian Asylum Applicant to have been Firmly Resettled in Brazil

The Board of Immigration Appeals (Board) determined that a Haitian asylum applicant had been firmly resettled in Brazil when he was offered permanent residence, even though he did not complete the ministerial steps required to claim that residence. “For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” “An alien also cannot nullify an offer of firm resettlement by allowing his qualifications for permanent residence to lapse or by purposefully becoming ineligible.”

“[T]he evidence he presented of discrimination and criminal activity against Haitians in Brazil is limited in scope and does not establish that the Brazilian Government actively supports any mistreatment of Haitians that would constitute a conscious and substantial restriction of the respondent’s residence. Moreover, there is no evidence that the Brazilian Government restricted his right to travel or any other common, basic human right, with the exception of the right to vote, which is generally reserved to citizens.“

The full text of Matter of K-S-E- can be found here:
https://www.justice.gov/eoir/page/file/1267846/download

Ninth Circuit Addresses Firm Resettlement Rule

The Ninth Circuit has emphasized that the Board of Immigration Appeals may not ignore a petitioner’s claim to have been persecuted in the country of resettlement when determining if the firm resettlement bar applies to an asylum application. In addition, the firm resettlement bar acts as a statutory bar to asylum, not a limitation as to what evidence of past persecution a court must consider. Evidence of past persecution in the applicant’s home country is relevant to an application for withholding of removal, which is not subject to the firm resettlement bar.

The full text of Arrey v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/02/26/16-73373.pdf

Fifth Circuit Determines the Appropriate Standard of Review for the Firm Resettlement Bar

The Fifth Circuit has determined that the proper standard of review to apply to the Board of Immigration Appeals' (Board) factual determination that an asylum applicant was firmly resettled in a third country is substantial evidence.  In the instant case, the petitioner did not meaningful contest the Immigration Judge's finding that she was firmly resettled in Mexico, but asserted that an exception to the firm resettlement bar applied in her case - namely, that she remained in Mexico only as a necessary consequence of her flight from Bolivia.  The agency disagreed, noting the length of her residency in Mexico, her travels in and out of Mexico, and her ability to work in Mexico.  As such, the court found that substantial evidence supported the conclusion that she was not in Mexico only as long as necessary to arrange onward travel.

The full text of Lara v. Lynch can be found here: 

http://www.ca5.uscourts.gov/opinions/pub/15/15-60126-CV0.pdf

Ninth Circuit Finds that North Koreans who Relocate to South Korea are not Eligible for Asylum in the United States

The Ninth Circuit determined that a North Korean who moved to South Korea, attended school, and accepted South Korean citizenship, was firmly resettled, and thus, ineligible for asylum.  Section 302 of the North Korean Human Rights Act of 2004, which prohibits a finding that a North Korean is automatically a dual citizen of South Korea, does not prevent an Immigration Judge from making a firm resettlement finding.

The full text of Jang v. Lynch can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/22/11-73587.pdf