On May 12, 2011, the Board of Immigration Appeals (BIA) issued a precedent decision setting out the framework adjudicators should follow when determining whether an asylum applicant has “firmly resettled” in another country and is thus barred from asylum. Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011). Under INA § 208(b)(2)(A)(vi), an asylum applicant is ineligible for asylum if she “was firmly resettled in another country prior to arriving in the United States.” The regulations clarify that an asylum applicant is considered firmly resettled in another county if, “prior to arrival in the United States . . . she entered into another country with, or . . . received an offer of permanent resident status, citizenship, or some other type of permanent resettlement” unless the asylum applicant meets one of two exceptions. 8 C.F.R. § 1208.15.
Prior to Matter of A-G-G-, the BIA had not published any decisions explaining how adjudicators should analyze the firm resettlement bar as it currently exists in INA § 208(b)(2)(A)(vi). The U.S. Circuit Courts of Appeal, however, have issued numerous decisions analyzing the firm resettlement bar. See e.g., Diallo v. Ashcroft, 381 F.3d 687 (7th Cir. 2004). As described by the BIA in Matter of A-G-G-, the Circuit Courts generally follow one of two different approaches to the firm resettlement bar: the “direct offer” approach, which focuses on the direct evidence of an offer of some kind of permanent residence made by a government, and the “totality of the circumstances” approach, which considers all evidence of an offer of firm resettlement. 25 I&N Dec. at 495-96. In Matter of A-G-G-, the BIA incorporated elements of both the “direct offer” and “totality of the circumstances” approaches to create a four-step framework for analyzing the firm resettlement bar.
Under the A-G-G- framework, the Department of Homeland Security (DHS) must first show prima facie evidence of an offer of firm resettlement. Id. at 501; 8 C.F.R. § 1240.8(d). DHS can meet this burden by providing “direct evidence of governmental documents indicating an alien’s ability to stay in a country indefinitely,” such as “evidence of refugee status, [or] a travel document.” A-G-G- at 502. If no direct evidence is available, DHS can provide indirect evidence “if [the evidence] has a sufficient level of clarity and force to establish that an alien is able to permanently reside in the country.” Id. Such indirect evidence may include the immigration laws from the country; the length of the individual’s stay in that country; family, business, social or economic ties to the country; the receipt of government benefits; or evidence that the individual had legal rights normally given to people with some official status, such as the right to work and enter and exit the country. Id. Significantly, the BIA held that “a determination of firm resettlement is not contingent on whether the alien applies for that status.” Id. Thus, if an asylum applicant could have applied for permanent residence in the country where she formerly resided but did not do so, the adjudicator could still find that the firm resettlement bar applies. Id.
Second, if DHS provides prima facie evidence that the firm resettlement bar applies, the burden then shifts to the asylum applicant to rebut that evidence by demonstrating “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.
Third, the adjudicator should consider, “the totality of the evidence presented by the parties” to determine whether the asylum applicant has rebutted DHS’s evidence of an offer of firm resettlement. Id.
And fourth, if the adjudicator finds that the asylum applicant is firmly resettled, then the burden shifts to the asylum applicant to establish by a preponderance of the evidence that one of the exceptions to the firm resettlement bar (provided in 8 C.F.R. § 1208.15), applies to her. If the asylum applicant cannot prove that an exception applies, then she is subject to the firm resettlement bar and is ineligible for asylum.
As result of Matter of A-G-G-, NIJC expects that DHS will begin to raise the firm resettlement bar more frequently in asylum cases. Attorneys representing asylum applicants who resided in more than one country before entering the United States should be prepared to demonstrate why their client was not firmly resettled in that country and should not be subject to the firm resettlement bar. NIJC also expects that DHS may focus on the portion of the BIA’s decision stating that an asylum applicant could be found firmly resettled based on a failure to apply for a form of permanent residency for which she is eligible. However, NIJC also notes that the BIA in Matter of A-G-G- did not explicitly overrule any of the prior Circuit Court decisions interpreting the firm resettlement bar. Thus, attorneys with cases in circuits where the “direct offer” approach was used can still try to argue that the analysis must first focus on whether the country made an “offer” of permanent residence, whether directly or indirectly, before examining whether the asylum applicant could have applied for that that status.