25 I. & N. Dec. 664
BIA2012Background
- D–X– & Y–Z–, respondents, appeal/defendant DHS cross-appeals from an IJ decision on asylum and withholding.
- Female and male respondents were found to have been granted permits to reside in Belize; the permits were facially valid.
- DHS argues the Belize permits create a firm resettlement bar under 8 U.S.C. § 1158(b)(2)(A)(vi), even if fraudulently obtained.
- The female stayed in Belize for months with no significant ties, then traveled to the U.S. and returned to Belize.
- The male also resided in Belize, worked there, and later entered the U.S.; both did not establish exceptions to the firm resettlement presumption.
- The Board holds firm resettlement bars asylum but may allow withholding of removal; remands for female's withholding determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does facially valid Belize residency permit establish firm resettlement despite fraud? | DHS argues permits prove firm resettlement. | D-X– & Y–Z– contend fraud undermines the presumption. | Facial validity plus use to reside supports firm resettlement despite fraud. |
| Can fraud in obtaining permits rebut the firm resettlement presumption? | Respondents argue fraud defeats firm resettlement. | DHS asserts prima facie evidence remains intact and rebuttal fails. | Fraud did not rebut the presumption; permits still indicate firm resettlement. |
| Do the respondents meet the exceptions to the firm resettlement rule under 8 C.F.R. § 1208.15(a)-(b)? | Respondents contend they remained only as necessary to arrange onward travel. | DHS contends they did not remain solely to arrange onward travel and did travel back to Belize and the U.S. | Neither exception applies; firm resettlement stands for both respondents. |
| Does firm resettlement bar asylum but allow withholding of removal, requiring remand for female withholding determination? | DHS favors bar to asylum; withholding is not foreclosed for the female. | Board agrees asylum barred; withholding for female to be considered on remand. | Asylum barred for both; withholding remains potentially available; remand to consider female withholding. |
Key Cases Cited
- Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011) (four-step framework for firm resettlement analysis; prima facie evidence; rebuttal; totality of evidence; exceptions)
- Su Hwa She v. Holder, 629 F.3d 958 (9th Cir. 2010) (recognition as a national can sustain firm resettlement despite fraud in status)
- Matter of Ayala, 22 I&N Dec. 398 (BIA 1998) (rejection of eligibility where fraudulent activity undermines residency status)
- Vang v. INS, 146 F.3d 1114 (9th Cir. 1998) (firm resettlement factors; travel and return evidence)
- Pula, 19 I&N Dec. 467 (BIA 1987) (fraudulent documents to escape persecution not fatal to asylum claim where other elements exist)