SOLEIMANI
(2) The Board and immigration judges are not bound by the provisions of
(3) An alien‘s firm resettlement in another country is a factor to be evaluated in determining whether asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
(4) A finding that an alien has been firmly resettled in a third country would normally preclude a grant of asylum as a matter of discretion, unless the alien can demonstrate countervailing equities in his favor that are compelling in nature.
(5) Whether or not an outstanding offer of permanent residence or citizenship to all Jews who arrive in Israel constitutes a specific offer of permanent resettlement to the respondent, the pertinent regulations and the Board‘s prior decisions cannot be read so restrictively that the respondent‘s circumstances in Israel become irrelevant.
(6) An alien will not be found to be firmly resettled elsewhere if it is shown that his physical presence in the United States is a consequence of his flight in search of rеfuge, and that his physical presence is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by an intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge.
(7) The question of firm resettlement is not always limited solely to the inquiry of how much time has elapsed between the alien‘s flight and the asylum application, where other factors germane to the question of whether the alien has firmly resettled include family ties, intent, business or property connections, and other matters.
(8) A determination that the respondent was not firmly resettled in Israel does not end the Board‘s inquiry as to whether the respondent should be granted asylum as a matter of discretion, where the respondent did have some ties to Israel, and such ties are a factor to be evaluated in the exercise of discretion.
The resрondent is a 34-year-old native and citizen of Iran. Evidence included in the record establishes that she is Jewish. In various
According to the respondent, she obtained a visa as a visitor for pleasure while in Israel, initially intending to remain with her family in Israel only until the situation in Iran improved. In her affidavits, statements, and hearing testimony, she related that shе never worked or owned property in Israel and was never directly offered Israeli citizenship, permanent resettlement, or resident status in Israel. She also reported that she had developed pneumonia during her travels and was sick and under a physician‘s care for 6 months of her stay in Israel. The respondent was hospitalized there due to her illness. She reportedly lived with her grandmother while in Israel, apparently paying rent. Observing that she had visited Israel seven different times in the past, she related that she hаd gone to school to study Hebrew during her last stay in Israel but had never received any financial assistance for any reason from the Israeli Government, as she had relied on her brothers and her own funds for support.
While in Israel, the respondent was issued a nonimmigrant visitor for pleasure visa by the American consulate on June 10, 1982, with which she entered the United States on September 16, 1982, with her Iranian passport. She was authorized to remain until December 16, 1982, and on November 22, 1982, applied for asylum with the district director. The district director denied the application on November 1, 1984. Deportation proceedings were instituted on March 1, 1985.
The respondent has reported that she initially obtained the nonimmigrant visitor‘s visa and came to the United States in order to attend a family wedding and to visit her three brothers. According to the respondent, she remained in the United States for several months visiting family and friends and then filed her application for asylum, as she was still unable to return safely to Iran and had no other home. She observed that she had not expeсted the regime in Iran to remain in power as long as it had and, for this reason, had also not sought asylum in Israel previously. The respondent related that her three brothers, her mother, her sister, and a nephew were in the United States, and that
In conjunction with the respondent‘s initial asylum application, the distriсt director requested and obtained an advisory opinion from the United States Department of State‘s Bureau of Human Rights and Humanitarian Affairs (“BHRHA“). In the advisory opinion, dated October 26, 1984, the BHRHA expressed its view that the respondent, if a member of the Jewish faith, had a well-founded fear of persecution if returned to Iran. However, it also concluded that in view of Israel‘s Law of Return, which entitled the respondent as a member of the Jewish faith to reside permanently and enjoy the rights of citizenship in Israel, it was probable that she was offered resident status, citizenship, or some other type of permanent resettlement. It appeared to the BHRHA that the respondent had become firmly resettled in Israel and was therefore ineligible for asylum pursuant to
Following the deportation hearing, the immigration judge concluded in his decision that the respondent, as an Iranian Jew, would be persecuted if returned to her native country, and he accordingly granted her application for withholding of deportation to Iran. However, he alsо denied her asylum application, concluding that she was ineligible due to her firm resettlement in Israel, in that she could have become a resident of Israel and by her own choosing decided not to do so. The respondent contends on appeal that she had not become firmly resettled in Israel.
The respondent bears the evidentiary burden of proof and persuasion in any application for asylum under section 208 of the Act. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987);
Having established a well-founded fear of persecution on account of religion if returned to Iran, the respondent thus demonstrated that she was a “refugee” within the meaning of section 101(a)(42)(A) of the Act and established her statutory eligibility for asylum under section 208. A finding that the respondent was firmly resettled in another country, namely Israel, does not render her ineligible for a grant of asylum under section 208 by the immigration judge or this Board. Rather, firm resettlement is a factor to be evaluated in determining whether asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
The immigration judge‘s conclusion to the contrary most likely stemmed from a reading of language used by the Board in Matter of Lam, 18 I&N Dec. 15 (BIA 1981), and Matter of Portales, 18 I&N Dec. 239 (BIA 1982). In the former decision, distinguishing withholding of deportation from asylum, the Board stated that “[a]sylum will not even be granted, however, where the alien has been firmly resettled in a third place.” Matter of Lam, supra, at 18. In the latter decision, the Board relied on Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971), concluding “that the applicants, prior to their arrival in the United States, were firmly resettled in Peru and that they are not entitled to classification as refugees.” Matter of Portales, supra, at 242. However, these statements, to the effect that an alien‘s firm resettlement in a third country renders the alien ineligible for asylum, were dicta. Noting in Matter of Lam, supra, that the immigration judge had granted the alien withholding of deportation to the People‘s Republic of China but had not set forth his reasons for denying asylum, the Board remanded the record for an evidentiary hearing on the question of firm resettlement. It was therefore not necessary for the Board to determine at that juncture whether firm resettlement acts as a bar to eligibility for asylum, as opposed to one factor to be evaluated in the exercise of discretion. In Matter of Portales, supra, prior to finding that the applicants had firmly resettled in a third country, the Board held that the apрlicants had not demonstrated a clear probability or a well-founded fear of persecution if returned to Cuba, which in itself rendered the applicants ineligible for asylum. Thus, the Board‘s finding of firm resettlement was unnecessary to the holding that the applicants were not eligible for relief. The Board hereby withdraws from the above-cited cases to the extent that they state that an alien found to have been firmly resettled in a third country is rendered ineligible for a grant of asylum under section 208 of the Act by the immigration judge or this Bоard.
The term “refugee” means (A) any person who is outside any country of such person‘s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to аvail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
There is no reference to firm resettlement in section 208 of the Act, and it is not part of the definition of a “refugee” in section 101(a)(42)(A). Aliens outside of the United States may not be admitted as refugees under section 207(c)(1) of the Act,
In the absencе of any reference to firm resettlement in section 208 of the Act or in the definition of a “refugee” under section 101(a)(42)(A), and in the absence of any regulatory bar, we conclude that an alien is not precluded from being granted asylum by an immigration judge or the Board based on a finding of firm resettlement in a third country. A review of the legislative history of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, does not establish that Congress intended firm resettlement to act as a bar to a grant of asylum by an immigration judge or the Board. The Supreme Court‘s decisiоn in Rosenberg v. Yee Chien Woo, supra, also does not require a conclusion to the contrary. The Court, interpreting section 203(a)(7) of the Act (repealed by section 203(c)(3) of the Refugee Act of 1980), held that although the statute failed to mention the “firm resettlement” concept, it was one of the factors which the Immigration and Naturalization Service must take into account in determining whether a refugee seeks asylum in the United States as a consequence of his flight to avoid persecution, as required for a grant of asylum. The Court reasoned thаt although the statute did not specifically
However, neither section 208 of the Act nor the current definition of a “refugee” under section 101(a)(42)(A) refers to the concept of either firm resettlement or flight. Moreover, Congress expressly provided in section 207 of the Act that aliens outside of the United States could not be admitted to this country as refugees if firmly resettled in another foreign country, but it chose not to incorporate any such language into sections 101(a)(42)(A) or 208. Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. INS v. Cardoza-Fonseca, supra; Russello v. United States, 464 U.S. 16 (1983). Congress’ intent that firm resettlement should not preclude a finding that an alien is a refugee within section 101(a)(42)(A) can also be gleaned from section 209(b)(1) of the Act,
Turning to the discretionary aspects of the respondent‘s asylum claim, a finding that an alien has been firmly resettled in a third country would normally preclude a grant of asylum as a matter of discretion, unless the alien can demonstrate countervailing equities in his favor that are compelling in nature. An alien is deemed to be “firmly resettled” if he has been offered permanent resettlement by another country as a consequence of his flight from persecution, unless it is established that the conditions of his residence in that country have been substantially and consciously restricted by the authorities of that country.
Moreover, whether or not an outstanding offer of permanent residence or citizenship to all Jews who arrive in Israel constitutes a specific offer of permanent resettlement to the respondent herself, the pertinent regulations and the Board‘s prior decisions cannot be read so restrictively that the respondent‘s circumstances in Israel become irrelevant. An alien will not be found to be firmly resettled elsewhere if it is shown that his physical presence in the United States is a consequence of his flight in search of refuge, and that his physical presence is reasonably proximate to the flight and not one following a flight remote in point of time or interrupted by an intervening residence in a third country reasonably constituting a termination of the original flight in search of refuge. See Rosenberg v. Yee Chien Woo, supra. The question of resettlement is not always limited solely to the inquiry of how much time has elapsed between the alien‘s flight and the asylum application. Other factors germane to the question of whether the alien has firmly resettled include family ties, intent, business or property connections, and other matters. Chinese Am. Civic Council v. Atty. Gen. of United States, 566 F.2d 321 (D.C. Cir. 1977); see also Kai Fung Chan v. Kiley, 454 F. Supp. 34 (S.D.N.Y. 1978); Chi-Wai Lui v. Pilliod, 358 F. Supp. 542 (N.D. Ill. 1973); Matter of Moy, 12 I&N Dec. 121 (Comm. 1967); Matter of Chai, 12 I&N Dec. 81 (Comm. 1967).
As a preliminary matter, the Board concludes that, at the time the respondent first arrived in Israel in November 1981, she was then fleeing persecution, having escaped Iran by fleeing over the mountains into Pakistan. The respondent herself has stated that she and her family had left Iran due to the political situation there. The fact that
However, the record demonstrates that her intervening residence in Israel before applying for asylum in the United States did not reasonably constitute a termination of her original flight in search of refuge. Her later physical presence in the United States remained reasonably proximate to her flight. In this regard, the Board points out that the respondent took nо active steps demonstrating that she had firmly resettled in Israel or had an intent to do so. She remained there only 10 months, and during this time lived with her grandmother, recuperating from her illness and attending school in order to study Hebrew. Her attending school in itself does not demonstrate firm resettlement. See Matter of Chai, supra. Additionally, she neither worked nor sought employment in Israel. She did not seek any financial or other benefits from the Israeli authorities. The respondent has also testified, and the Service has not contested, that she only received a nonimmigrаnt visitor‘s visa in Israel and never sought a more permanent status or the benefits accruing from a more permanent status during her stay in Israel. Although she does have permanent family in that country, this consists solely of her grandmother, while the remainder of her family lives in the United States. Given these circumstances, the Board concludes that the respondent had not firmly resettled in Israel or any other country prior to her application for asylum in the United States.
The determination that the respondent was not firmly resettled in Israel does not end the Board‘s inquiry as to whether she should be granted asylum in the exercise of discretion. As noted above, the record shows that the respondent did have some ties to Israel, and even if they were not sufficient to demonstrate firm resettlement, such ties are a factor to be evaluated in the exercise of discretion. Among the factors which should be considered are: whether she passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procеdures were in fact available to help her in any country she passed through, and whether she made any attempts to seek asylum before coming to the United States; the length of time she remained in the third country and her living conditions, safety, and potential for long-term residency there; whether she has relatives legally in the United States or other personal ties to this country which motivated her to seek asylum here rather than elsewhere; and the extent of her ties to any other countries where she does not fear persecution. Matter of Pula, supra.
Moreover, if the respondent engaged in fraud to circumvent orderly refugee procedures, the seriousness of the fraud should be considered.
Under the balancing analysis set forth in Matter of Pula, supra, the Board finds that a grant of asylum is warranted as a matter of discretion. Although the respondent does have some ties to Israel, her only remaining relative in Israel is her grandmother, while the rest of her family resides in the United States, most of whom were also asylum applicants at the time of the deportation proceedings. As noted above, the respondent neither worked nor sought employment in Israel and essentially spent her 10 months thеre recuperating from pneumonia and attending language courses. All during this time she had only a nonimmigrant status in Israel. Additionally, the respondent arrived in the United States by legal means through a nonimmigrant visa and applied for asylum while she was still in a legal status in this country. There is no showing in the record that the respondent had a preconceived intent to apply for asylum in this country before coming to the United States so as to circumvent orderly refugee procedures. Her ties to Israel alone should not preclude a grant of asylum as a matter of discretion. They should be balanced with the remaining factors which include the facts that her ties to Israel are somewhat limited, that she came to this country by legal means and applied for asylum while in a legal status here, that there is no evidence that she engaged in fraud in order to circumvent orderly refugee procedures, and that there are no other factors adverse to the respondent in the record.
Accordingly, the asylum application will be granted in the exerсise of discretion.
ORDER: The appeal is sustained.
FURTHER ORDER: The application for asylum is granted.