On April 10, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a Haitian citizen whose applications for asylum and withholding of removal had been denied by the Immigration Judge (IJ), who found that Respondent had been firmly resettled in Brazil prior to coming to the U.S. and was therefore ineligible for asylum due to the mandatory bar of INA § 208(b)(2)(A)(vi). After the decision was appealed, the BIA requested and received supplemental briefing from the parties. (An initial footnote in the opinion stated that Respondent did not “meaningfully challenge” the IJ’s denial of his CAT request and that this issue was thus deemed waived.)
The Board first noted that the record contained a copy of a Brazilian Government registry listing Haitian nationals, including Respondent, who were offered permanent resident status in Brazil. Respondent testified that, prior to leaving Brazil, he had been aware of an offer of permanent residence there, but had not yet taken advantage of it.
The BIA then explained that it uses a four-step test to determine whether the mandatory firm resettlement bar applies to an asylum case: First, DHS bears the burden of presenting prima facie evidence of an offer of firm resettlement; such resettlement exists “where there is an available offer that realistically permits an individual’s indefinite presence in the country.” Collaterally, one who firmly resettles in another country prior to entering the U.S. is no longer considered to be fleeing persecution for purposes of asylum. Here, DHS presented an offer of permanent residence in Brazil, although Respondent admitted failing to pursue the application process. The Board also agreed with DHS that the Brazilan provisions “set forth a series of ministerial acts that would not pose any significant obstacles” to one who chose to accept the right to apply for permanent residence there. As Respondent admitted he did not accept the offer because of the cost and time involved and his fear of crime in Brazil, the opinion concluded that DHS had presented prima facie evidence demonstrating that an offer of firm resettlement had been made.
In the second step of the analysis, an applicant can rebut DHS’s prima facie evidence of a firm resettlement offer by showing by a preponderance of evidence “that such an offer has not, in fact, been made or that he or she would not qualify for it.” Respondent argued on appeal that DHS did not present prima facie evidence of such an offer because the type of visa he was offered was merely an offer of temporary status that would expire after 5 years and that renewal was contingent on the applicant being employed; Respondent, therefore, argued the offer was not “permanent.”
However, concluded the decision, because the offer made Respondent’s status renewable, the BIA did not agree that the “identified contingencies to [Respondent’s] continued presence render the offer insufficient to be an offer of firm resettlement.” His statement on appeal that he probably would not be employed when it came time to renew his status was “speculative,” “based on general country conditions” that may not apply in the future; the requirement to maintain employment did not prevent the offered status from being “permanent.” The Board also disagreed with Respondent’s assertion that DHS failed to meet its burden of proof in establishing the relevant foreign law as it did not provide a full picture of the requirements to apply for permanent residence in Brazil. In fact, DHS’s evidence was “neither minimal nor incomplete”, but instead, found the Board, contained ample substantive evidence of the relevant laws and their effect on the issue of firm resettlement. Any omitted evidence was secondary, relating to the procedure and timing of a status renewal application and the decision thus concluded that DHS had met its burden of proof under the applicable case law.
The third step of the analysis requires the IJ to consider the totality of the evidence submitted to determine whether the applicant has rebutted DHS’s evidence of a firm resettlement offer. The BIA noted that “a viable and available offer to apply for permanent residence in a country of refuge is not negated” by one’s unwillingness or reluctance to satisfy the terms for acceptance, finding that Respondent had not meaningfully rebutted DHS’s proof that an offer of firm resettlement was available.
In the final, fourth step, the burden shifts to the applicant to establish that an exception to firm resettlement applies. Here, according to the Board, Respondent had “described various difficulties he faced in Brazil,” but did not establish that “the nature of his stay in that country was too tenuous or that the conditions imposed by the Brazilian Government were too restrictive for him to be considered firmly resettled.” His testimony that Haitians are treated poorly in Brazil was limited, and did not establish that the government there actively supports the mistreatment of Haitians to the extent that it “would constitute a conscious and substantial restriction” of Respondent’s residence. Further, the opinion found no evidence that the Brazilian Government restricted Respondent’s right to travel, or any other common, basic human right. As such, the BIA agreed with the IJ’s conclusion that “the statutory firm resettlement bar to asylum in section 208(b)(2)(A)(vi) of the Act applies in this case.”
Lastly, the decision turned to the IJ’s alternate finding that, even if Respondent is not barred, he did not meet his burden of establishing a well-founded fear of persecution in Haiti. He had described the mistreatment of his family due to their political party affiliation. The Board concluded that the record showed that Respondent’s attackers were “part of a disorganized group of bandits who engaged in various criminal endeavors” and while they may have had “political motivations,” the IJ found that they were private individuals unaffiliated with the government. On this record, held the BIA, the IJ’s determination was not clearly erroneous. Nor had the IJ clearly erred in finding Haiti’s autonomous police force able and willing to control these private actors. Despite Respondent’s assertion of reluctance to report a sexual assault because of potential stigmatization, the record did not demonstrate that Haitian laws or customs effectively deprived him of the government’s protection or that reporting the incident would have been futile or subjected him to further abuse. On appeal, Respondent relied on a portion of the U.S. Department of State Country Reports on Human Rights Practices for 2016 related to sexual and gender-based based violence in Haiti but this information, stated the opinion, merely reflected that segments of Haitian society “retain antiquated views regarding the rights and roles of women in society” and was not indicative of “cultural, societal, or legal constants” that would make reporting the harm he experienced futile or dangerous. Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020).