There is a concept in asylum law known as “firm resettlement.” What it means is that if a person from Country A seeks asylum in the United States, even if he or she qualifies for asylum based on past persecution of a protected class, if the person can safely and legally relocate to a third country, that person cannot receive asylum in the U.S. A simple example is someone holding two citizenships. If the person qualifies as a refugee from one of those countries, he would not qualify for asylum in the U.S. because he can safely and legally relocate to the second country. Other scenarios are also possible such as where a person has earned legal status in a third country based on familial relationships, employment history, or even as a refugee.

On April 10, 2020, the Board of Immigration Appeals (“The Board” or “the BIA”) decided Matter of K-S-E, holding that, “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.”

K-S-E was a native and citizen of Haiti who had previously resided in Brazil and was offered permanent residence in Brazil, that he simply did not take advantage of. The BIA applied a four-part test to determine if KSE was subject to the firm resettlement bar: (1) Did DHS present prima facie evidence of an offer of firm resettlement? (2) Did the applicant present evidence that the offer was not actually made or that he would not qualify for it? (3) Did the applicant rebut by a preponderance of the evidence the DHS evidence of an offer of firm resettlement? (4) Did the applicant establish an exception to the firm resettlement bar should apply?

The offer in Brazil required KSE to register with the police, submit an application with identification documents, and pay a fee. He chose not to do so, which satisfied the first question. Renewal of the status in Brazil was based on maintaining employment, but the BIA held this condition did not undermine the firmness of the offer, satisfying question two. It is question three where the BIA established new law, holding that an a viable offer for firm resettlement is not negated by an alien’s unwillingness or reluctance to satisfy the terms of the offer. The BIA did not accept that KSA’s reasons for not accepting the offer satisfied an exception. As a result, KSA’s application for asylum was denied.

While the circumstances of KSA’s immigration history are not common, it is not easy to secure an offer of permanent residence or other permanent status in most countries, they are not unheard of. This decision makes it more difficult for someone wanting to apply for asylum in the U.S. when that person has a viable alternative place to relocate, even if that place is less desirable for some reason.

While all asylum applications are difficult, for people who have passed through other countries on the way to the U.S., especially if those visits in other countries were for an extended period of time, asylum law is complicated, constantly evolving and unforgiving. It is essential that you work with an experience Jersey City Immigration Lawyer to make sure all the requirements are met and any potential obstacles are addressed early in the process and thoroughly.

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