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Jason Dzubow on Political Asylum

The BIA on Firm Resettlement

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One of my professional goals in life is to get a published decision from the Board of Immigration Appeals ("BIA"). It won't be easy--the Board publishes only about one case out of every 1,000 (I wrote about this problem in a blog post called, The Unbearable Lightness of BIA-ing). If the Board could publish more cases, it would provide better guidance to the nation's Immigration Judges and would probably result in more consistency across the country. Alas, it seems unlikely that the BIA will take my suggestion anytime soon.

I did have a recent case that I thought might stand a chance of publication. As far as I know, it was an issue of first impression (meaning that there are no other published cases discussing the same topic). It is also a fairly common issue, so some guidance from the Board would have been appropriate. The bad news is that my dreams of publishing glory have been shattered, as the Board issued an unpublished decision in my case. But the good news is, we won. And perhaps our unpublished victory might be helpful to others who are in a similar situation.


Unlike published BIA decisions, unpublished decisions are not binding on Immigration Judges. However, they are "persuasive," meaning that if you can find an unpublished case on point, you can submit it to the Judge, who will hopefully consider it. The Executive Office for Immigration Review (the office that administers the BIA and the Immigration Courts) does not release unpublished decisions, but fortunately, there is a sort-of underground network led by the legendary Dan Kowalski, where attorneys can submit their unpublished decisions and make them available to others.


My case centered on a legal construct called "firm resettlement." An alien who has been "firmly resettled" in a third country is ineligible for asylum. See INA § 208(b)(1)(B)(2)(vi). My client's husband had been a high-ranking member of his country's government. When the government turned against him, he and the rest of the family fled to a neighboring country, which granted the family asylum--hence, they were firmly resettled in a third country. As a result of being firmly resettled, the Immigration Judge ("IJ") denied asylum, but granted Withholding of Removal as to the home country, and ordered my client and her children deported to the third country.


During the pendency of the BIA appeal, the home government assassinated my client's husband while he was residing in the third country. After the assassination, DHS agreed that the case should be remanded to the IJ.


On remand, we presented evidence that my client could not return to the third country, as she no longer had any status there. We also presented evidence that it was no longer safe for her in the third country.


DHS argued that even if she could not return to the third country, she had been firmly resettled there, and that she was thus barred from asylum. The lawyer described firm resettlement as a door. Once you pass through it, you are forever barred from asylum. When you read the case law (and the primary case on this point is Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)), the government's argument is not unreasonable. Though, in fact, while Matter of A-G-G- lays out a framework for the firm resettlement analysis, it does not cover the situation in our case, where the country of firm resettlement somehow becomes unsafe.


Ultimately, the BIA accepted one of several arguments we presented. The Board held:


The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution.... Given respondent's situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id.
(emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar "aliens who had already found shelter and begun new lives in other countries." Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).


It seems to me that the Board's emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude--like the DHS attorney and the IJ in my case--that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.


I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced--where the country of resettlement is unsafe--is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country's Immigration Judges.


Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can't help but think that if the BIA would publish more decisions--especially in cases where there is no existing precedent--our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as "the highest administrative body for interpreting and applying immigration laws," and if it would publish more cases.

Originally posted on the Asylumist: www.Asylumist.com.

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