Abdille v. Ashcroft

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

3-7-2001

Abdille v. Ashcroft

Precedential or Non-Precedential:

Docket 00-1659

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Filed March 7, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1659

MOHAMED ABDILLE, Petitioner

v.

JOHN ASHCROFT,* ATTORNEY GENERAL OF TH E

UNITED STATES, Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A 77 007 398)

Argued: December 18, 2000

Before: BECKER, Chief Judge, NYGAARD and

FUENTES, Circuit Judges.

(Filed March 7, 2001)

OLGA NARYMSKY, ESQUIRE

(ARGUED)

Hebrew Immigrant Aid Society

333 Seventh Avenue

New York, NY 10001

AMY GOTTLIEB, ESQUIRE

American Friends Service Committee

972 Broad Street, 6th Floor

Newark, NJ 07102

Counsel for Petitioner

_________________________________________________________________

* Substituted for Janet Reno pursuant to Federal Rule of Appellate

Procedure 43(c).

DAVID W. OGDEN, ESQUIRE

Assistant Attorney General

RICHARD M. EVANS, ESQUIRE

Assistant Director

PAUL FIORINO, ESQUIRE (ARGUED)

MICHAEL P. LINDEMANN, ESQUIRE

ALISON M. IGOE, ESQUIRE

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

BECKER, Chief Judge.

Mohamed Jama Abdille, a Somali native, petitions for a

review of a Board of Immigration Appeals (BIA or Board)

decision that: (1) denied him asylum from Somalia on the

ground that he had firmly resettled in South Africa; and (2)

denied him asylum from South Africa on the gr ound that

he failed to establish past persecution or a well-founded

fear of persecution in that country. Abdille's Petition for

Review requires us to interpret for the first time the

meaning of the "firm resettlement" bar to asylum now

codified in the Immigration and Nationality Act (INA), and

further defined in S 208.15 of Title 8 of the Code of Federal

Regulations. This statutory bar, as fleshed out in the

applicable immigration regulations, precludes the Attorney

General from granting asylum to an applicant when the

Attorney General finds that the applicant had firmly

resettled in a third country prior to his arrival in the United

States.

We conclude that the plain language of S 208.15 makes

clear that the prime factor in the firm r esettlement inquiry

is the existence of an offer of permanent resident status,

citizenship, or some other type of permanent r esettlement.

While recognizing that factors other than the issuance of

such an offer may prove relevant to the firm resettlement

2

question, we reject an alternative "totality of the alien's

circumstances" approach that would have us consider the

existence of an offer as simply one component of a broader

firm resettlement inquiry accor ding equal weight to such

non-offer-based factors as the alien's length of stay in a

third country, the economic and social ties that the alien

develops in that country, and the alien's intent to make

that country his permanent home.

In light of this conclusion, we find that the BIA's

discussion of Abdille's firm resettlement in South Africa is

inadequate with regard to whether Abdille received an offer

of some type of permanent resettlement, and that proper

resolution of the firm resettlement issue requires additional

information concerning the content of South African

immigration law and practice. Because of the limited nature

of the record before us on appeal, and because of the

considerable deference we owe to the Immigration and

Naturalization Service (INS) when it makes factual

determinations (and the content of for eign law is a matter

for fact finding), we will grant the Petition for Review and

remand the case to the BIA for: (1) further investigation into

the content of South African immigration law and practice;

and (2) appropriate resolution of the question whether

Abdille received an offer of some type of permanent

resettlement from the South African gover nment.

One critical element in the resolution of thefirm

resettlement question is the determination of whether

Abdille or the government will bear the bur den of

establishing the content of South African law, an issue on

which the parties disagree. To give guidance to the BIA and

to expedite the resolution of this matter , thereby avoiding

another Petition for Review, we address this issue and

opine that the INS, as the party initially seeking to rely on

foreign law, will carry the initial bur den, but that once the

INS introduces evidence sufficient to indicate that the firm

resettlement bar will apply, the burden of proving relevant

provisions of South African law will shift to Abdille. Finally,

we hold that the BIA's conclusion that Abdille failed to

make the requisite showing of past persecution or a well-

founded fear of persecution necessary for eligibility for

asylum from South Africa must stand.

3

I. Facts and Procedural History1

Abdille was born in Somalia in 1967, and was orphaned

at an extremely early age. He never lear ned the identity of

his parents and hence could not trace his clan lineage.

According to an affidavit submitted by Said S. Samatar,

Professor of African History at Rutgers University, clan

lineage is a central feature of social and political life in

Somalia, and an individual's inability to identify himself

with a particular clan can be a substantial, per haps life-

threatening, impediment. Such dangers wer e exacerbated

by the fall of General Siyaad Barre in 1991, after which

central government in Somalia collapsed, and militias,

splintered along clan lines, filled the power vacuum.

Clanlessness is rare in Somalia, and an individual who is

unable to trace his lineage, such as Abdille, is often

suspected of hiding his true affiliation and pr esumed to be

a member of a rival clan.

Prior to General Barre's fall, Abdille led an apparently

ordinary and undisturbed existence in Somalia, employed

as an electrician for Somali National Power in the city of

Mogadishu. After 1991, however, events took a dramatic

turn for the worse: Abdille lost his job, and his lack of clan

identity led to repeated confrontations, detentions, and

physical assaults at the hands of suspicious militia

members.2 Ultimately, in Mar ch 1998, Abdille fled Somalia

_________________________________________________________________

1. The basic facts concerning Abdille's life in Somalia and South Africa,

as well as the circumstances leading up to his application for asylum in

the United States, are not in dispute. Our r ecitation of these facts,

particularly with regard to events in Somalia and South Africa, is drawn

principally from Abdille's affidavit in support of his petition for

asylum,

and a transcript of Abdille's oral testimony befor e the Immigration Judge

(IJ), both of which are contained in the Certified Administrative Record.

The IJ specifically found Abdille's testimony to be credible.

2. Abdille's affidavit and oral testimony depict these events in much

greater detail. For instance, during one detention, Abdille was subjected

to a mock execution. On another occasion, militia members tied Abdille's

hands and feet, repeatedly beat him with sticks, and stabbed his arm

and chest with a bayonet. As part of his application for asylum, Abdille

submitted a report prepared by Dr . Nina Regevik, who conducted a

physical examination of Abdille and concluded that Abdille's scars were

consistent with a history of beatings and stabbings.

4

in a small boat, arrived in Mozambique, and then traveled

on foot to South Africa, entering the latter country in April

1998. We do not believe it necessary her e to canvass the

events in Somalia in a more extensive fashion, as the

parties do not dispute that Abdille satisfied his burden in

establishing past persecution or a well-founded fear of

persecution in Somalia, and that, absent application of the

firm resettlement bar, Abdille would be eligible for asylum

from that country. Abdille's Petition for Review focuses our

attention on the events that transpired in South Africa.

The South African government, acting pursuant to its

Aliens Control Act of 1991, granted asylum to Abdille on or

around June 25, 1998. Abdille's asylum documents show

that such status had a duration of two years, commencing

on June 25, 1998 and expiring on June 24, 2000.

According to a letter from South Africa's Department of

Home Affairs to Abdille, at the end of that two-year period

Abdille would have to contact the Department for a

"reviewal of [his] refugee status or to otherwise legalise [his]

continued stay in" South Africa; otherwise, Abdille would be

in the country illegally, and therefore would be subject to

potential prosecution under the Aliens Contr ol Act. Abdille

was also issued a South African passport, which he

eventually used to enter the United States, and a travel

document allowing him re-entry into South Africa.

Abdille lived in Cape Town, South Africa, fr om April 1998

through January 1999, in a rented gr oup home he shared

with fourteen other Somali natives. Unable to obtain the

necessary certification to pursue his previous career as an

electrician, Abdille worked as a street vendor selling

cigarettes, candy, and other miscellaneous items. While

working as a street vendor, Abdille suf fered two separate

attacks by two different groups of South Africans. First, in

July 1998, as he was selling his merchandise in a public

market, Abdille was approached by a group of five or six

young South African men. The men hit Abdille, knocking

him unconscious with a blow to the back of the head, and

stole his merchandise. Abdille suffer ed facial injuries and

lost several teeth. The other vendors in the market did not

intervene. Following the attack, Abdille reported the

incident to the police. Abdille told the officers that he could

5

identify the assailants, but he testified in pr oceedings

before the Immigration Judge (IJ) that the police did

nothing in response except inform him that he should

return to the station at a later time.

The second incident occurred five months later, in

December 1998, when a separate group of men attacked

Abdille as he was selling his wares in a dif ferent market.

The men stole all of Abdille's merchandise, but Abdille ran

away before he could be physically injur ed. [A.R. 131].

Again, Abdille reported the attack to the police, but was

told to return the next day. Following the December attack,

Abdille decided to leave South Africa and moved to

Johannesburg in order to make preparations for departure.

He remained in Johannesburg for thr ee weeks, leaving in

February 1999. Abdille ultimately arrived in the United

States on April 8, 1999, via Brazil and Chile.

Upon his arrival, Abdille surrendered to INS officials. On

May 19, 1999, INS issued an Order to Show Cause,

charging Abdille with removability under 8 U.S.C.

S 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a

valid immigrant visa or entry document, and 8 U.S.C.

S 1182(a)(7)(A)(i)(II), as an immigrant in possession of a visa

not properly issued. Abdille sought asylum and withholding

of removal relief both from Somalia and from South Africa.

The IJ denied Abdille's asylum request with r espect to

Somalia, on the ground that he had fir mly resettled in

South Africa, and denied his asylum request with respect to

South Africa, on the ground that he had failed to

demonstrate persecution or a well-founded fear of

persecution.3 Abdille appealed, but the BIA similarly denied

his requests for asylum from both Somalia and South

Africa, for the reasons relied upon by the IJ. Abdille now

brings a Petition for Review contesting the BIA's decision.

Because Abdille's removal proceedings wer e commenced

_________________________________________________________________

3. The IJ also denied Abdille's request for withholding of removal to

South Africa, and granted his request for withholding of removal to

Somalia. Abdille did not appeal the IJ's withholding of removal decisions

to the BIA, and does not seek review of those decisions on this appeal.

Accordingly, we need not concern ourselves with the question whether

Abdille was eligible for withholding of removal relief.

6

after April 1, 1997, we have jurisdiction pursuant to 8

U.S.C. S 1252(a)(1).

II. General Asylum Standards

The federal asylum statute confers discretion on the

Attorney General to grant asylum to an alien applicant "if

the Attorney General determines that such alien is a

refugee within the meaning of section 1101(a)(42)(A)." 8

U.S.C. S 1158(b)(1). Section 1101(a)(42)(A) defines "refugee"

as

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

avail 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 . . . .

8 U.S.C. S 1101(a)(42)(A). The asylum applicant bears the

burden of establishing that he or she falls within this

statutory definition of "refugee." See 8 C.F.R. S 208.13(a)

(2000); see also Balasubramanrim v. INS, 143 F.3d 157,

161 (3d Cir. 1998).

Section 1158(b)(2) lists several exceptions pr oscribing the

Attorney General from exercising his discretion to grant

asylum, including the exception pertinent to this appeal,

added to the federal asylum statute by the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA): Section 1158(b)(2)(A)(vi) bars the grant of

asylum to an alien "firmly resettled in another country prior

to arriving in the United States." 8 U.S.C. S 1158(b)(2)(A)(vi);

see also 8 C.F.R. S 208.13(c)(1) (2000) ("For applications

filed on or after April 1, 1997, an applicant shall not qualify

for asylum if section . . . 208(b)(2) of the Act[8 U.S.C.

S 1158(b)(2)] applies to the applicant.").4

(Text continued on page 9)

_________________________________________________________________

4. The compulsory language of the statute and r egulations makes clear

that a finding of firm resettlement is currently a mandatory bar to the

7

grant of asylum. However, a brief survey of the evolution of the firm

resettlement bar reveals that this was not always the case. The concept

of "firm resettlement" was first introduced into U.S. immigration law in

the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, which used

the concept of firm resettlement in the definition of "displaced person,"

and the Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400,

which expressly included the phrase "fir mly resettled" in the definition

of

"refugee," as a limitation on the persons eligible for such status. See

Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53-54 & n.3 (1971). When the

Refugee Relief Act was extended in 1957, however , the "firmly resettled"

language was dropped from the "r efugee" definition, and was not re-

inserted in subsequent statutory revisions to U.S. refugee laws until the

IIRIRA in 1996 codified the firm r esettlement bar. See 8 U.S.C.

S 1158(b)(2)(A)(vi).

The present firm resettlement bar re-emerged in the Supreme Court's

1971 decision in Yee Chien Woo, a case involving a native of mainland

China, who fled that country in 1953, arrived in the United States in

1960, and eventually applied for an immigrant visa claiming a

"preference" under S 203(a)(7) of the Immigration and Nationality Act of

1952, as an alien who fled a Communist country fearing persecution on

account of race, religion, or political opinion. See 402 U.S. at 50-51,

53.

In the seven years prior to his arrival in the U.S., Yee Chien Woo had

lived and worked in Hong Kong. See id. at 50. The INS used Yee Chien

Woo's residence and work in Hong Kong as a ground for denying his

application, but the Court of Appeals for the Ninth Circuit determined

that the INS's reliance on the alien's fir m resettlement was erroneous.

See id. at 51-52. Pointing to the fact that Congress had omitted the

phrase "firmly resettled" from statutory definitions of "refugee" after

1957, the Ninth Circuit concluded that Y ee Chien Woo's firm

resettlement in Hong Kong was irrelevant to the issue whether his

immigration application should be granted underS 203(a)(7). See id. The

Supreme Court, however, unambiguously r ejected the Ninth Circuit's

approach: "In short, we hold that the `r esettlement' concept is not

irrelevant. It is one of the factors which the Immigration and

Naturalization Service must take into account to determine whether a

refugee seeks asylum in this country as a consequence of his flight to

avoid persecution." Id. at 56.

As the quoted language above demonstrates, following Yee Chien Woo,

"firm resettlement" was not a mandatory bar to asylum eligibility, but

rather one of the factors the INS was to weigh in exercising its

discretion

as to the grant of an alien's asylum application. See, e.g., Farbakhsh v.

INS, 20 F.3d 877, 881 (8th Cir. 1994) (canvassing briefly the history of

8

"Firm resettlement," "persecution," and "well-founded fear

of persecution" are all findings of fact that we review under

the deferential substantial evidence standar d articulated in

INS v. Elias-Zacarias, 502 U.S. 478 (1992)."Substantial

evidence is more than a mere scintilla and is such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion." Senathirajah v. INS , 157 F.3d 210,

216 (3d Cir. 1998) (internal quotation marks and citation

omitted). Under the substantial evidence standar d, the

BIA's finding must be upheld unless the evidence not only

supports a contrary conclusion, but compels it. See Elias-

Zacarias, 502 U.S. at 481 & n.1; Chang v. INS, 119 F.3d

1055, 1060 (3d Cir. 1997) ("On questions of fact, we will

reverse the BIA's determination that[an applicant] is not

eligible for asylum . . . only if a reasonable fact-finder would

have to conclude that the requisite fear of persecution

existed.") (emphasis added).

III. The Firm Resettlement Inquiry

The BIA denied Abdille asylum from Somalia based on a

finding of firm resettlement in South Africa. As mentioned

_________________________________________________________________

the firm resettlement bar). Prior to 1990, INS regulations prohibited

district directors from granting asylum to aliens who had firmly resettled

in a third country, see 8 C.F.R.S 208.8(f)(1)(ii) (1988), but the BIA

interpreted that regulation as not applying either to immigration judges

or to the Board itself. See Matter of Soleimani, 20 I. & N. Dec. 99, 104

(BIA 1989). Accordingly, for immigration judges and the BIA, firm

resettlement was a factor used to guide their discretion in determining

whether to grant asylum. See 3 Charles Gor don et al., Immigration Law

& Procedure S 33.04[1][e][iii], at 33-52.9 (2000). The BIA did, however,

also rule that firm resettlement would ordinarily preclude an asylum

grant unless the alien could demonstrate compelling countervailing

equities in his or her favor. See Soleimani, 20 I. & N. at 105.

Effective October 1, 1990, the INS amended its regulations concerning

firm resettlement, providing for a mandatory denial of asylum upon a

finding of firm resettlement. See 8 C.F.R. S 208.14(c)(2) (1991);see also

8 C.F.R. S 202.13(c)(2)(i)(B) (2000) (stating that for asylum applications

filed before April 1, 1997, an immigration or asylum officer shall not

grant asylum to any alien who "[h]as beenfirmly resettled."). As noted

above, Congress in 1996 codified this mandatory bar in the federal

asylum statute at 8 U.S.C. S 1158(b)(2)(A)(vi).

9

above, the firm resettlement bar applicable in Abdille's case

is codified in the INA at 8 U.S.C. S 1158(b)(2)(A)(vi), and

referenced in the INS's regulations at 8 C.F.R. S 208.13(c)(1).5

The INA does not furnish a definition of"firm resettlement,"

but federal regulations do, and that definition becomes vital

to our analysis in the instant matter. Specifically, 8 C.F.R.

S 208.15, captioned "Definition of `firm resettlement,' "

provides the following:

An alien is considered to be firmly resettled if, prior

to arrival in the United States, he or she enter ed into

another nation with, or while in that nation r eceived,

an offer of permanent resident status, citizenship, or

some other type of permanent resettlement unless he or

she establishes:

(a) That his or her entry into that nation was a

necessary consequence of his or her flight fr om

persecution, that he or she remained in that nation

only as long as was necessary to arrange onwar d

travel, and that he or she did not establish significant

ties in that nation; or

(b) That the conditions of his or her residence in that

nation were so substantially and consciously r estricted

by the authority of the country of refuge that he or she

was not in fact resettled. In making his or her

determination, the Asylum Officer or Immigration

Judge shall consider the conditions under which other

residents of the country live, the type of housing made

available to the refugee, whether permanent or

temporary, the types and extent of employment

available to the refugee, and the extent to which the

refugee received permission to hold property and to

enjoy other rights and privileges, such as travel

documentation including a right of entry or r eentry,

_________________________________________________________________

5. In their briefs, both Abdille and the INS err oneously assume that 8

C.F.R. S 208.13(c)(2) contains the relevant firm resettlement bar.

However, by its terms, this provision applies only to an alien "who filed

his or her application before April 1, 1997." 8 C.F.R. S 208.13(c)(2)(i)

(2000) (emphasis added). Abdille did not arrive in the United States until

April 8, 1999, and his asylum application is dated July 23, 1999.

10

education, public relief, or naturalization, or dinarily

available to others resident in the country.

8 C.F.R. S 208.15 (2000) (emphasis added). It is the BIA's

application of this provision that is at issue.

The BIA's reliance on the firm r esettlement bar as its

basis for denying Abdille asylum from Somalia r equires us

to consider the factors that inform a finding of firm

resettlement. Our analysis, of course, is constrained by the

great deference we owe to the INS in immigration matters,

particularly when the agency interprets and applies its own

regulations. See, e.g., INS v. Aguirr e-Aguirre, 526 U.S. 415,

424-25 (1999) (holding that Chevron deference, typically

triggered when an agency construes a statute it is charged

with administering, is appropriate in the immigration

context because of the INA's express delegation of authority

to the Attorney General); Applebaum v. Nissan Motor

Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 2000)

(noting that when an agency is interpreting its own

regulation, rather than a statute it administers, review is

under the Bowles v. Seminole Rock & Sand Co., 325 U.S.

410 (1945), standard, which renders the agency's

interpretation controlling "unless it is plainly erroneous or

inconsistent with the regulation," id. at 414).

Our principal guide in this endeavor is the language and

structure of 8 C.F.R. S 208.15, the INS's own definition of

firm resettlement. It is readily evident from the plain

language of S 208.15 that the prime element in the firm

resettlement inquiry is the existence vel non of "an offer of

permanent resident status, citizenship, or some other type

of permanent resettlement." 8 C.F .R. S 208.15 (2000). Thus,

on its face, S 208.15 explicitly centers thefirm resettlement

analysis on the question whether a third country issued to

the alien an offer of some type of official status permitting

the alien to reside in that country on a per manent basis.

The alternative approach would have us consider the

existence of a government-issued offer as simply one

component of a broader firm resettlement inquiry according

equal weight to such non-offer-based factors as the alien's

length of stay in a third country, the economic and social

ties that the alien develops in that country, and the alien's

11

intent to make that country his permanent home. Under

such an approach, the IJ and BIA would consider both the

formal issuance of an offer and the existence of various

non-offer-based factors together , as part of the total mix of

information bearing on the firm r esettlement question, and,

after weighing these elements as a whole, would arrive at a

conclusion regarding the applicant's fir m resettlement in

the third country.

Such a "totality of the alien's circumstances"-type of

calculus is suggested by Chinese American Civil Council v.

Attorney General, 566 F.2d 321 (D.C. Cir. 1977), in which

the Court of Appeals for the D.C. Circuit found that

Chinese aliens who had lived in Hong Kong for at least

fifteen years following their flight from mainland China had

firmly resettled in Hong Kong. See id. at 326. In reaching

this conclusion and in elaborating on the fir m resettlement

inquiry, the D.C. Circuit relied principally on non-offer-

based elements, noting that the time elapsed between an

alien's flight from a country of persecution and his

application for asylum in the U.S. is an important factor in

determining whether an alien had fir mly resettled in a third

country, see id. at 328 & n.18, and further stating that

"[a]n applicant's family ties, intent, business or property

connections and other matters may be relevant to

resettlement determinations." Id. at 328 n.18. The court

made no mention of whether the government of Hong Kong

had extended to the aliens an offer of per manent resident

status, citizenship, or some other type of per manent

resettlement.

Although not expressly labeling it as such, other courts

of appeals also appear to have employed a "totality of the

alien's circumstances" approach in thefirm resettlement

context. For example, in Farbakhsh v. INS, 20 F.3d 877 (8th

Cir. 1994), the Court of Appeals for the Eighth Circuit

upheld a BIA decision denying an Iranian national eligibility

for asylum in the United States based on the applicant's

resettlement in Spain. In concluding that the BIA's finding

of firm resettlement was supported by the record, the court

relied on several non-offer-based elements, such as the fact

that the applicant "had lived more than four years in Spain

without fear of being returned to Iran"; that "he initially

12

intended to remain in Spain"; and that "his younger brother

and younger sister were living in Spain." Id. at 882. As in

Chinese American, no explicit mention of the for mal

issuance of an offer of permanent r esettlement was made.

In a similar vein, the Court of Appeals for the Fourth

Circuit appeared to follow a "totality" approach in Mussie v.

INS, 172 F.3d 329 (4th Cir. 1999), deciding that an

Ethiopian citizen had firmly resettled in Germany because

she received asylum status and travel documentation from

the German government, and "[i]n addition, she lived in

Germany for six years, during which time she r eceived

government assistance for language schooling,

transportation, rent, and food; held a job; paid taxes; and

rented her own apartment." Id. at 331-32.

We believe, however, that the plain language of the INS's

own definition of firm resettlement counsels against such a

broad, "totality of the alien's circumstances" analytical

framework. Section 208.15 clearly states that a prima facie

case of firm resettlement is established once the evidence

shows that the asylum applicant received "an offer of

permanent resident status, citizenship, or some other type

of permanent resettlement" in a thir d country. 8 C.F.R.

S 208.15 (2000). Although S 208.15 expr essly enumerates

certain non-offer-based elements, such as "the type of

housing made available to the refugee, . . . the types and

extent of employment available to the refugee, and the

extent to which the refugee received per mission to hold

property," id. S 208.15(b), it prompts the IJ to consider

such factors only in determining whether one of the two

exceptions to the firm resettlement bar provided for in

S 208.15 applies; it does not list these elements in

connection with the prima facie showing of fir m resettlement.6

_________________________________________________________________

6. For example, S 208.15(a), which per mits an alien to rebut the prima

facie showing of firm resettlement by demonstrating that "he or she

remained in that nation only as long as was necessary to arrange

onward travel," authorizes the alien to set forth evidence that "he or she

did not establish significant ties in that nation." 8 C.F.R. S 208.15(a)

(2000) (emphasis added). Similarly, S 208.15(b), which allows an alien to

make this rebuttal showing by establishing"[t]hat the conditions of his

or her residence in that nation were . . . substantially and consciously

restricted by the authority of the country of r efuge," expressly mandates

13

Thus, by its terms, this regulatory pr ovision focuses the

firm resettlement analysis on the existence vel non of a

formal government-issued offer .

We are not the first court to r ecognize the prime

relevance for firm resettlement purposes of a government's

offer of some type of permanent r esettlement: the Court of

Appeals for the Tenth Circuit followed a complementary

analysis in Abdalla v. INS, 43 F.3d 1397 (10th Cir. 1994).

In Abdalla, the court considered the case of a Sudanese

native who was found by the BIA to have fir mly resettled in

the United Arab Emirates (UAE) prior to his arrival in the

United States. See id. at 1398. The court upheld the BIA's

conclusion, focusing principally on the fact that the alien

had lived for twenty years in the UAE under a "r esidence

permit" issued by the UAE government. See id. at 1399. In

effect, the Abdalla court treated the residence permit,

which had apparently conferred on the alien a legal right to

live and work in the UAE for two decades, as dir ect

evidence of a government-issued offer of permanent

resettlement. Importantly, the court went on to note that

this permit, viewed in light of the applicant's twenty-year

stay in the UAE, "was sufficient to suggest per manent

resident status, citizenship or some other per manent

resettlement." Id. at 1399 (inter nal quotation marks and

citations omitted). The court ended its fir m resettlement

analysis by shifting the burden to the alien"to prove that

his extended, officially sanctioned stay in [the UAE] did not

constitute a firm resettlement in the UAE." Id. at 1399

(emphasis added). It ultimately concluded that the alien did

not meet this burden in part because other , non-offer-

based factors, such as the alien's significant family ties to

the UAE, militated in favor of a firm r esettlement finding.

See id. at 1400.

_________________________________________________________________

that an immigration judge, in evaluating the alien's evidentiary

presentation, consider factors such as "the type of housing made

available to the refugee, . . . the types and extent of employment

available to the refugee, and the extent to which the refugee received

permission to hold property and to enjoy other rights and privileges . . .

ordinarily available to others resident in the country." 8 C.F.R.

S 208.15(b) (2000).

14

We acknowledge that circumstances may arise in which

the INS may not be able to secure direct evidence of a

formal government offer of some type of permanent

resettlement, and thus may be not be able to make the

prima facie showing of firm resettlement under S 208.15 in

that manner. In such a situation, the IJ or BIA may find it

necessary to rely on non-offer-based factors, such as the

length of an alien's stay in a third country, the alien's

intent to remain in the country, and the extent of the social

and economic ties developed by the alien, as cir cumstantial

evidence of the existence of a government-issued offer. As

we see it, if direct evidence of an offer is unobtainable, such

non-offer-based elements can serve as a surrogate for

direct evidence of a formal offer of some type of permanent

resettlement, if they rise to a sufficient level of clarity and

force, which we need not here delineate. 7 The Court of

Appeals for the Ninth Circuit faced such a situation in Cheo

v. INS, 162 F.3d 1227 (9th Cir. 1998), as described in the

margin.8 See also Andriasian v. INS, 180 F.3d 1033, 1043

_________________________________________________________________

7. In the instant matter, the INS has adduced some direct evidence that

Abdille received an offer of some type of resettlement from the South

African government. See infra Section IV.A. The INS also points to

certain non-offer-based factors, especially Abdille's employment as a

street vendor and his opportunity to work as an electrician in South

Africa, to bolster its contention that Abdille hadfirmly resettled in that

country. See infra note 9. However, because we reject a "totality of the

alien's circumstances" approach to thefirm resettlement inquiry, and

because the INS has presented direct evidence of a South African

government-issued offer (on which it primarily relied in arguing that

Abdille had received an offer of some type of permanent resettlement

within the meaning of 8 C.F.R. S 208.15), we need not address whether

such factors can serve as circumstantial evidence of a government-

issued offer.

8. In Cheo, two Cambodian nationals, Meng Ly Cheo and Meng Heng

Cheo, sought refuge from their native land, but had lived for three years

in Malaysia prior to their entry into the United States. See 162 F.3d at

1228. In conducting its firm resettlement inquiry, the Ninth Circuit first

noted that "there is no direct evidence one way or the other as to

whether the Cheos have or had the right to r eturn to Malaysia," id. at

1229, and therefore no evidence as to whether they had received an offer

of permanent resettlement from the government of that country. In such

a circumstance, the court contemplated the use of non-offer-based

factors as a substitute for the existence of an of fer as prima facie

15

(9th Cir. 1999) ("In the absence of dir ect evidence of an

offer, a lengthy, undisturbed r esidence in a third country

may establish a rebuttable presumption that an individual

has the right to return to that country and remain there

permanently."); Mussie v. INS, 172 F.3d 329, 332 (4th Cir.

1999) (citing with approval Cheo's pr esumption based on

the length of the alien's stay).

Finally, we note that the emphasis that S 208.15's firm

resettlement calculus places on the existence of a formal

government offer of some type of per manent resettlement is

in keeping with a principal facet of immigration law: A

nation has broad authority to regulate the terms and

conditions under which an individual can be admitted

within its borders, and under which he can seek to

establish a residence therein. See Miller v. Albright, 523

U.S. 420, 453 (1998) (Scalia, J., concurring); Rogers v.

Bellei, 401 U.S. 815, 830-31 (1971). Absent some

government dispensation, an immigrant who surr eptitiously

enters a nation without its authorization cannot obtain

official resident status no matter his length of stay, his

intent, or the extent of the familial and economic

connections he develops. Citizenship or permanent

residency cannot be gained through adverse possession.

With this understanding of the factors under girding the

firm resettlement inquiry in mind, we turn to the BIA's

decision in the instant matter.

_________________________________________________________________

evidence of firm resettlement. Specifically, the court fashioned a

rebuttable presumption of firm r esettlement based on the aliens' length

of stay:

Three years of peaceful residence established that the ground of

`firm resettlement' in Malaysia might apply . . . . That was enough

time so that, in the absence of evidence to the contrary, it would

be

a reasonable inference from the duration that Malaysia allowed the

Cheos to stay indefinitely.

Id.

16

IV. Abdille's Firm Resettlement in South Africa

A.

It appears that the BIA, in reaching the conclusion that

the firm resettlement bar precluded the INS from granting

Abdille asylum from Somalia, relied in part on what it

considered to be an offer made by the South African

government to Abdille of some type of per manent

resettlement. In seeking to make its prima facie showing of

firm resettlement, the INS intr oduced evidence of two South

African government documents approving Abdille's

application for asylum in that country, both contained in

the Certified Administrative Record. Thefirst record is a

Certificate of Exemption entitling Abdille to asylum under

South Africa's Aliens Control Act of 1991 for a two-year

period of exemption commencing on June 25, 1998 and

ending on June 24, 2000. The second is a letter fr om South

Africa's Department of Home Affairs addr essed to Abdille

discussing Abdille's obligations at the conclusion of this

two-year refugee period:

Please note, however, that if at the end of the period of

exemption [i.e., June 24, 2000], you do not wish to

leave [South Africa], the onus rests on you to contact

the Department for the reviewal of your r efugee status

or to otherwise legalise your continued stay in[South

Africa] before the expiry date of your Certificate. Failure

to do so may render you liable to prosecution in terms

of the provisions of the Aliens Control Act, 1991 (Act

96 of 1991).

Although the BIA acknowledged that the Certificate of

Exemption conferring refugee status on Abdille would

expire after a two-year term, it nonetheless concluded that

the issuance of this certificate repr esented an offer of some

type of permanent resettlement within the meaning of 8

C.F.R. S 208.15's firm r esettlement definition because,

according to the BIA's reading of the Department of Home

Affairs letter, Abdille's refugee status "does not simply

terminate" at the end of the two-year exemption period.

Looking at those two documents, the BIA deter mined that

17

the firm resettlement bar applied to Abdille, requiring the

INS to deny Abdille's asylum application.9

We cannot say, however, that the two documents

describing Abdille's refugee status under South African law

constitute substantial evidence supporting the conclusion

that the government of South Africa granted Abdille an offer

of some other type of permanent resettlement. If anything,

these records compel the contrary conclusion--i.e., that

such an offer of resettlement was, by its terms, only

temporary in nature. As is evident from the face of the

Certificate of Exemption, South Africa's of fer to Abdille of

asylum status (and Abdille's acceptance of that of fer)

carried with it an explicit termination date: Abdille's legal

right to reside in South Africa as a refugee exempt from

certain provisions of the Aliens Control Act of 1991 would

end on June 24, 2000. Furthermore, the Department of

Home Affairs letter to Abdille makes clear that, absent

further action on Abdille's part, he would be subject to

prosecution under South African law should he choose to

remain in South Africa after the expiration of the two-year

exemption period on June 24, 2000. Given this plain

language, we are hard-pressed to see how these documents

lend support to the BIA's conclusion that Abdille's refugee

status "does not simply terminate" on June 24, 2000, and

was in fact of a more permanent natur e.

We acknowledge, however, that we lack familiarity with

the intricacies of South African immigration law. While the

_________________________________________________________________

9. The BIA's opinion mentions other non-of fer-based factors such as the

fact that Abdille was issued a travel document granting him the right to

re-enter South Africa after trips abroad; had the opportunity and ability

to rent a private home in Cape Town; and had the opportunity to work

as an electrician if certified. However, fr om the language of the BIA's

decision, it does not appear that the BIA employed these factors in

connection with its determination that Abdille had received an offer of

some other type of permanent resettlement from South Africa. Rather,

the BIA's opinion demonstrates that it employed these factors to

conclude that South Africa did not substantially and consciously restrict

the conditions of Abdille's residence, and thus to reject Abdille's

attempt

to rely on the firm resettlement exception contained in S 208.15(b). On

appeal, Abdille does not challenge the BIA's finding with regard to that

exception.

18

information contained in the Certificate of Exemption and

the Department of Home Affairs letter to Abdille strongly

suggests that the grant of refugee status for afixed term of

two years is something short of an offer of some other type

of permanent resettlement, it may be true that under the

relevant provisions of South African immigration law, or the

application of that law in practice, a refugee's two-year

exemption period will often mature into a mor e permanent

status. For instance, it may be that provisions of the Aliens

Control Act ease the burden on an alien applying for official

permanent resident status if that alien has already received

asylum, or that, as a matter of immigration practice, two-

year refugees like Abdille routinely r eceive a form of

permanent status if they apply for such status prior to the

expiration of the two-year exemption period. The Certified

Administrative Record is completely silent on these points,

however, and at this stage, in the absence of further

evidence, reliance on these contingencies would amount to

nothing more than mere speculation.

The BIA's decision in Matter of D-L- & A-M-, 20 I. & N.

Dec. 409 (BIA 1991), is instructive in this r egard. In D-L- &

A-M-, the BIA found that two Cuban natives seeking asylum

from that country had firmly resettled in Spain, where they

had spent six years prior to their entry into the United

States. See id. at 414. In reaching this conclusion, the

Board appropriately focused on the Spanish government's

official recognition of the aliens' legal right to reside in that

country. Specifically, the BIA noted that the aliens had

received official temporary resident status that was

renewable each year, and, importantly, that this temporary

residency could be converted to permanent residency once

one of the aliens obtained a work contract. See id. at 411,

414. This latter point was established through the cross-

examination testimony of one of the aliens in hearings

before the INS. See id. at 411. In the instant matter, the

proceedings on remand may very well yield similar evidence

of the likelihood that Abdille's fixed, two-year r efugee term

in South Africa will be converted into a mor e permanent

status.

19

B.

As the foregoing discussion demonstrates, pr oper

resolution of the firm resettlement issue requires further

information as to the content of South African immigration

law and practice. Given the limited nature of the record

before us on appeal, and the considerable defer ence we owe

to the INS in immigration matters, we believe it improper

for us to settle the firm resettlement question based on our

hypotheses regarding the type of contingencies that could

have occurred at the end of Abdille's two-year exemption

period under the terms of the Aliens Contr ol Act or its

practical applications.10 Accor dingly, we consider it

necessary to grant Abdille's Petition for Review and to

remand, so that the BIA may further investigate the content

of South African immigration law and practice in general,

and may resolve the specific question whether , under South

African refugee law and practice, the issuance of a

Certificate of Exemption granting an alien r efugee status for

_________________________________________________________________

10. Moreover, we do not believe that the circumstances are appropriate

for us to take judicial notice of the content of South African law on this

appeal. In general, foreign law is treated as a fact that must be proven

by the parties. See, e.g., Black Diamond Steamship Corp. v. Robert

Stewart & Sons, 336 U.S. 386, 397 (1949) ("[T]he Court has adhered to

the general principle that foreign law is to be proved as a fact.");

Intercontinental Trading Co., Inc. v. M/V Zenit Sun, 684 F. Supp. 861,

864 (E.D. Pa. 1988) ("No proof having been presented at trial as to

Chilean law, the court cannot take judicial notice of the law of Chile

. . . ."). Although federal courts have discr etionary authority to

judicially

notice the laws of foreign countries pursuant to the fact-finding

procedure contained in Fed. R. Civ. Pr o. 44.1, see 1 Jack B. Weinstein

& Margaret A. Berger, Weinstein's Federal Evidence S 201.52[3][b], at

201-94 (Joseph M. McLaughlin ed., 2d ed. 2000); see also Sidali v. INS,

107 F.3d 191, 197 n.9 (3d Cir. 1997), because such a procedure was not

followed in the instant matter, we will r efrain from judicially noticing

the

content of South African refugee law.

We did conduct a preliminary investigation into South African law, to

see whether an issue existed with respect to the consequences that

Abdille would experience under South African immigration law and

practice upon the expiration of his two-year r efugee period. The

information we obtained suggested that such an issue did exist, and we

therefore concluded that remand to the BIA was the appropriate avenue

for resolution of that issue. We did not use the information we gathered

except in this preliminary fashion, and, as noted above, we decline to

judicially notice it.

20

a fixed two-year term amounted to an of fer of some other

type of permanent resettlement within the meaning of

S 208.15. On remand, both Abdille and the INS should be

afforded an opportunity to supplement the record by

presenting evidence bearing on these issues. Of course, we

express no opinion as to the proper r esolution of the

question whether Abdille had firmly r esettled in South

Africa.11

V. The Burden of Proof as to the Content of

South African Law

Because the substance of South African immigration law

will prove highly relevant to the final disposition of the firm

resettlement issue, and in the interest of providing some

further guidance on remand, we need to consider the issue

of which party--Abdille or the government--will bear the

burden of establishing the content of South African law on

remand. We note in this regar d that in our discussion

above, we implicitly addressed part of this bur den

allocation issue when we referenced the government's

burden to make the prima facie showing of fir m

resettlement. We now make this discussion explicit.

Although this precise issue was not addr essed by the

BIA's decision in Abdille's matter, a long line of BIA case

law establishes that "[f]oreign law is a matter to be proven

by the party seeking to rely on it." Matter of Soleimani, 20

I. & N. Dec. 99, 106 (BIA 1989). Ordinarily, it is the asylum

applicant who seeks the benefit of foreign law, and thus

carries the burden of demonstrating its content. See, e.g.,

Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994)

_________________________________________________________________

11. On appeal, Abdille argues in the alter native that the BIA's finding

of

firm resettlement in South Africa was erroneous because Abdille fell

within one of the two exceptions to the fir m resettlement bar contained

in 8 C.F.R. S 208.15--i.e., he established "[t]hat his or her entry into

that

nation was a necessary consequence of his or herflight from

persecution, that he or she remained in that nation only as long as was

necessary to arrange onward travel, and that he or she did not establish

significant ties in that nation." 8 C.F .R. S 208.15(a) (2000). Because we

remand to the BIA for further proceedings in connection with the firm

resettlement issue, we will not address the merits of Abdille's

contention.

21

("Placing the burden of proving for eign law on a petitioner

is consistent with the general rule that the petitioner bears

the burden of proof "); Matter of Annang, 14 I. & N. Dec.

502, 503 (BIA 1973) ("[T]he law of a for eign country is a

question of fact which must be proved by the petitioner if

he relies on it to establish eligibility for an immigration

benefit.").

The BIA, however, has had occasion to apply this rule in

order to place burdens on the gover nment. In Soleimani,

the immigration judge found that an Iranian Jew hadfirmly

resettled in Israel, relying principally on the assumption

that, because Israel's Law of Return granted all members of

the Jewish faith the right to Israeli citizenship, it was

probable that the alien had received an of fer of resident

status, citizenship, or some other type of per manent

resettlement from the Israeli gover nment. See 20 I. & N.

Dec. at 102. Observing that the record contained no

evidence "documenting the nature and purpose of Israel's

Law of Return or the specific provisions of that law," the

BIA reversed the immigration judge's finding on the ground

that "[f]oreign law is a matter to be pr oven by the party

seeking to rely on it, and the Immigration and

Naturalization Service has submitted nothing of r ecord

regarding Israel's Law of Return." Id. at 106.

The rule that foreign law is a matter to be pr oven by the

party seeking to rely on it must, at all events, be read in

conjunction with the INS regulations establishing the

general burden of proof allocation with r espect to the firm

resettlement issue. The pertinent regulatory provision is 8

C.F.R. S 208.13(c)(2)(ii), which states the following: "If the

evidence indicates that one of the above gr ounds [including

the firm resettlement bar] apply to the applicant, he or she

shall have the burden of proving by a pr eponderance of the

evidence that he or she did not so act." 8 C.F .R.

S 208.13(c)(2)(ii) (2000) (emphasis added). 12 The burden

_________________________________________________________________

12. As a formal matter, we note that, by its terms, the burden scheme

contemplated in 8 C.F.R. S 208(c)(2)(ii) applies only to firm resettlement

bar contained in 8 C.F.R. S 208(c)(2)(i)(B), which itself applies only to

asylum applications filed before April 1, 1997. Abdille's application was

filed after April 1, 1997, and thus the fir m resettlement bar applicable

to

22

allocation regarding firm r esettlement is thus evident from

the language of S 208.13(c)(2)(ii). Under the regulations, the

INS bears the initial burden of producing evidence that

indicates that the firm resettlement bar applies, and,

should the INS satisfy this threshold bur den of production,

both the burden of production and the risk of non-

persuasion then shift to the applicant to demonstrate, by a

preponderance of the evidence, that he or she had not

firmly resettled in another country. See, e.g., Mussie v. INS,

172 F.3d 329, 332 (4th Cir. 1999) (applying the

S 208.13(c)(2)(ii) burden framework, and noting that "[o]nce

the INS met its burden of introducing some evidence

indicating that [the applicant] had been `firmly resettled' in

Germany, [the applicant] bore the burden of demonstrating,

by a preponderance of the evidence, that she had not been

resettled"); see also Abdalla v. INS, 43 F.3d 1397, 1399

(10th Cir. 1994) ("Once the government presents some

evidence indicating that asylum is unavailable on gr ounds

of firm resettlement . . . the petitioner bears the burden of

proving by a preponderance of the evidence that such

grounds do not apply.") (citations and inter nal quotation

marks omitted); Chinese American Civil Council v. Attorney

General, 566 F.2d 321, 328 n.18 (D.C. Cir . 1977)

("Resettlement is largely a factual question which, once that

fact appears of record, the applicants bear the burden of

overcoming.").

We conclude that the burden allocation scheme

established by the applicable INS regulations is controlling.

Both the INS and Abdille may, at differ ent points in the

immigration proceeding, constitute parties seeking to rely

on foreign law and, under the regime cr eated by the

regulations, both may consequently bear the bur den of

producing evidence of the substance of South African

immigration law and practice. Specifically, the INS will

_________________________________________________________________

his case is found not in the INS regulations, but rather in the federal

asylum statute, at 8 U.S.C. S 1158(b)(2)(A)(vi). See supra note 4 and

accompanying text. Nonetheless, we find no r eason to believe that

Congress, by codifying the firm r esettlement bar, intended to alter the

burden scheme contained in 8 C.F.R.S 208.13(c)(2)(ii) and, accordingly,

will apply that scheme to Abdille's case.

23

clearly carry the initial burden of setting forth evidence that

"indicates" that Abdille had firmly r esettled in South Africa,

and, to the extent that the INS relies on pr ovisions of South

African law--e.g. asylum provisions found in the Aliens

Control Act--to demonstrate that the South African

government granted Abdille "an offer of permanent resident

status, citizenship, or some other type of per manent

resettlement" within the meaning of 8 C.F .R. S 208.15's firm

resettlement definition, it will thus carry the burden of

setting forth evidence of the substance of that law.

Should the INS meet this threshold burden of production,

however, the burden of introducing evidence to overcome

the firm resettlement finding would shift to Abdille, the

asylum applicant. If Abdille then seeks to use the

substance of South African law to rebut thefirm

resettlement finding--e.g., by pointing to particular

provisions of the Aliens Control Act thatfix the term of

refugee status to two years in order to r ebut the suggestion

that he was issued an offer of permanent resettlement--

Abdille will carry the burden of setting forth the relevant

content of South African immigration law and practice.

Moreover, as contemplated in S 208.13(c)(2)(ii)'s allocation

scheme, once the government carries its bur den of

production by setting forth evidence that "indicates" that

firm resettlement has occurred, Abdille also bears the

ultimate burden of persuasion. That is, insofar as Abdille

relies on provisions of South African law to defeat the firm

resettlement bar, he must prove by a preponderance of the

evidence that those provisions render thefirm resettlement

bar inapplicable to his case.

VI. Asylum from South Africa

The BIA rejected Abdille's request for asylum from South

Africa based on the attacks and the alleged harassment he

experienced during his ten months in that country. As

discussed supra in Part II, to be eligible for asylum in the

United States as a refugee, an alien must demonstrate

"persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion." 8 U.S.C.

S 1101(a)(42)(A). The BIA agreed with the IJ that Abdille had

24

failed to carry his burden with respect to establishing either

past persecution or a well-founded fear of futur e

persecution. Because this issue was squarely pr esented in

Abdille's Petition for Review and was fully ar gued, and

because the question whether Abdille experienced

persecution or a well-founded fear of persecution is

independent of the question whether Abdille wasfirmly

resettled in that country, we do not believe that remand of

this issue to the BIA is warranted. We ther efore proceed to

the merits. In light of the deference we owe to the BIA's

factual findings under the standard of r eview established in

INS v. Elias-Zacarias, 502 U.S. 478 (1992), and for the

reasons that follow, we cannot say that the r ecord evidence

compels a conclusion contrary to the BIA's and,

accordingly, we decide that the BIA's decision with respect

to Abdille's request for asylum from South Africa must

stand.

A.

Abdille first argues that the BIA's deter mination that

Abdille had not established past persecution was not

supported by the record evidence. Under 8 C.F.R.

S 208.13(b)(1) (2000),

[a]n applicant shall be found to be a r efugee on the

basis of past persecution if he or she can establish that

he or she has suffered persecution in the past in his or

her country of . . . last habitual residence on account

of race, religion, nationality, membership in a

particular social group, or political opinion, and that he

or she is unable or unwilling to return to or avail

himself or herself of the protection of that country

owing to such persecution.

Abdille's claim of persecution in South Africa does not arise

out of any official action or policy instituted by the South

African government. Rather, Abdille alleges persecution at

the hands of private groups of attackers that the South

African government was either unable or unwilling to

control. See Singh v. INS, 94 F .3d 1353, 1360 (9th Cir.

1996) ("Persecution meted out by groups that the

government is unable or unwilling to contr ol constitutes

25

persecution under the [Immigration and Nationality] Act.

Non-governmental groups need not file articles of

incorporation before they can be capable of persecution.")

(citation omitted).

To establish past persecution, Abdille set forth evidence

establishing that he had suffered individualized attacks,

coupled with documentary evidence attempting to link his

personal experiences of harassment and violence with the

experiences of other similarly situated Somali and African

refugees living in South Africa. Abdille's individualized

evidence, primarily testimonial in nature, demonstrated

that Abdille had suffered two separate attacks while

working as a street vendor in public marketplaces in Cape

Town. The first occurred in July 1998, when a group of five

or six South Africans assaulted Abdille, knocking him

unconscious and stealing his merchandise. Abdille went to

the police station to make a report concer ning the incident,

but the officers told him to return at a later time.13 The

second attack took place five months later , when a different

group attacked Abdille in a separate market. Abdille fled

before he could be injured, but the gr oup did steal all of his

goods.

Abdille's documentary evidence, consisting of r eports on

South Africa issued by human rights groups and

newspaper stories printed in South African newspapers,

described in general the xenophobic attitudes taken by

South African citizens and politicians towar d African

immigrants, and specifically identified instances of violent

acts committed against foreigners, including foreign street

vendors working in cities such as Cape Town. Among the

_________________________________________________________________

13. The Certified Administrative Record is unclear as to whether Abdille

did in fact return to the police station to prosecute his claim. In

proceedings before the IJ, Abdille testified on direct examination that

after he reported the July 1998 attack to the police, "they told me every

day come back, come back and they haven't did anything for me,"

suggesting that Abdille did make subsequent visits that were ultimately

unavailing. On the other hand, while being cr oss-examined by the INS

concerning this first police report, Abdille appeared to concede that he

did not in fact return to the station:"I never went back that day but are

there [sic] more than 10 times they say come back and they didn't do

anything for me."

26

most pertinent such documents contained in the Certified

Administrative Record are: (1) a Mar ch 1998 report issued

by Human Rights Watch; (2) a December 1998 r eport put

forth by the South African Human Rights Commission; and

(3) two stories from the August 6, 1998 issue of Cape

Times, a Cape Town newspaper. The Human Rights Watch

and South African Human Rights Commission reports

document harassment of street vendors similar to that

experienced by Abdille.14

The BIA, after noting that Abdille had "intr oduced

evidence of criminal behavior by private individuals in

South Africa and disturbing documentary evidence of

xenophobia in South Africa," concluded that Abdille had

failed to sufficiently establish past persecution on account

_________________________________________________________________

14. The Human Rights Watch report, titled "Prohibited Persons: Abuse of

Undocumented Migrants, Asylum-Seekers, and Refugees in South

Africa," contains the following passage:

Foreign hawkers, often asylum applicants with temporary residence

permits, have repeatedly been the tar gets of violent protests and

other forms of intimidation as local hawkers attempt to "clean the

streets of foreigners." During r epeated violent protests in

Johannesburg, South African traders and or dinary criminals have

brutally beaten foreign hawkers, and stolen their goods. Hawkers

interviewed by Human Rights Watch who wer e the targets of such

abuse universally complained to us that the police had done little

or

nothing in response to their complaints. . . . Human Rights Watch

interviewed members of a large community of Somali asylum-

seekers who had been forced to abandon their trade and who told

Human Rights Watch that they now never left their overcrowded and

impoverished compound unless they were in a lar ge group, in order

to protect themselves from attacks by hostile "locals."

A similar account of violence against foreign street vendors appears in

the South African Human Rights Commission's r eport, titled "1999 Plan

of Action: Roll Back Xenophobia Campaign":

Vigilante groups have vowed to clear for eign traders off the

streets

of Johannesburg, Port Elizabeth and Cape T own. They inflame

public opinion with the perception that for eign traders take away

jobs from locals by unfairly competing for customers, space and

markets. As part of ongoing, hostile campaigns, mobs are raiding

foreign hawkers, often causing bodily har m, vandalising their

stalls

and stealing their goods.

27

of one of the five protected factors listed in the statutory

definition of refugee, because he could not demonstrate

that the violence he suffered was perpetrated by persons

that the government was unwilling or unable to control. To

buttress this conclusion, the BIA pointed to the fact that

there was no evidence that Abdille was harassed or

disturbed in Johannesburg during his thr ee-week stay

there; that the two attacks Abdille experienced were

committed by two separate groups of people; that Abdille

could not identify his assailants; and that after r eporting

the attacks to the police, Abdille failed to pr osecute these

charges by returning to the station, as requested by the

police.15

_________________________________________________________________

15. The BIA does not appear entirely corr ect with respect to the latter

two points. The BIA's claim that Abdille could not identify his assailants

is partially undermined by Abdille's testimony before the IJ concerning

his response to the first attack in July 1998: "When I went down [to] the

police station, . . . I told them I even know the people who attack me

because some of them they collect the money in the bus station where

I sell my merchandise." The INS concedes that Abdille could identify the

perpetrators of this first assault. The recor d appears silent on the

issue

of whether Abdille could identify the December 1998 attackers.

With respect to the BIA's assertion that Abdille failed to return to the

police station following his reports of the attack, as directed, the

record

is not as clear as the BIA appears to assume. As mentioned supra in

note 13, the evidence is ambiguous as to whether Abdille visited the

police station after reporting the first attack. With regard to the second

assault, Abdille testified that he reported the incident to the police,

and

"[t]hey said they make appointment and they told me come back

tomorrow." The record is silent as to whether Abdille returned the next

day as instructed.

Although the BIA's characterization of the r ecord evidence may not

have fully accomodated these ambiguities in the r ecord, such error does

not ultimately affect our decision to uphold the BIA's denial of Abdille's

request for asylum from South Africa. For the reasons stated in the text

above, the evidence Abdille did introduce to establish past persecution

and a well-founded fear of persecution simply does not compel a

conclusion contrary to the BIA's, even if we discount the evidence

supporting the BIA's determination so as to take account of its failure to

recognize either the fact that Abdille could identify the perpetrators of

the first assault, or that Abdille may have made some effort to follow up

on his report of the first incident to the police.

28

To be sure, the record evidence put forth by Abdille is

consistent with his theory of persecution. Abdille's

testimony demonstrates that he experienced individualized

harassment, and the documentary evidence rescribed in the

margin, supra at note 14, tends to show that these attacks

could have been the product of a more generalized animus

among segments of the South African public dir ected at

foreign asylum seekers, particularly those r efugees working

as street vendors in cities like Cape T own. Furthermore,

Abdille's testimony concerning the police's lackadaisical

responses to his reports is in accor d with descriptions

found in the human rights reports introduced by Abdille of

police inaction in the face of private violence against foreign

street vendors.

However, the evidence put forth by Abdille is also

consistent with acts of private violence that fall short of

persecution on account of race, nationality, or membership

in a particular social group. The assaults experienced by

Abdille at the hands of two different sets of assailants could

represent random street violence, motivated not by

animosity against a particular ethnic group, but rather by

arbitrary hostility or by a desire to r eap financial rewards.

Such ordinary criminal activity does not rise to the level of

persecution necessary to establish eligibility for asylum.

See, e.g., Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)

("Mere generalized lawlessness and violence between diverse

populations, of the sort which abounds in numer ous

countries and inflicts misery upon millions of innocent

people daily around the world, generally is not sufficient to

permit the Attorney General to grant asylum . . . .");

Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)

("[P]ersecution on account of political opinion no longer can

be inferred merely from acts of random violence . . . ."). It

is also important to note that Abdille was not har med in

South Africa except when he was engaged in vending

activities in public marketplaces.

In an attempt to establish that he was the victim of

persecution, and not just the target of or dinary street

violence, Abdille asserts that his situation is identical to the

one found in the BIA's recent decision in In re O-Z- & I-Z-,

Int. Dec. No. 3346, 1998 WL 177674 (BIA Apr. 2, 1998), in

29

which the BIA concluded that acts of harassment

committed by the "Rukh," a pro Ukranian independence

group, against a Jewish Ukrainian citizen who advocated

unification with Russia, rose to the level of persecution.

What Abdille fails to explain, however, is that the record

evidence in O-Z- & I-Z- made readily apparent the fact that

the "Rukh" assailants were motivated by a desire to

penalize the victim's religion. For example, the evidence

showed that anti-Semitic leaflets distributed by the "Rukh"

were left in the victim's clothing and at his home; that the

victim suffered two assaults resulting in physical injuries

while on his way home from work and at a bus stop near

his home, during which anti-Semitic remarks wer e directed

at him; and that the victim's son suffer ed physical and

verbal abuse at school as a result of his Jewish

background. In contrast to the direct pr oof of ubiquitous

religion-based animus presented by the asylum applicant in

O-Z- & L-Z-, in the proceedings befor e the IJ, Abdille offered

no such comparable evidence, relying instead on

descriptions of a generalized climate of hostility in South

Africa toward African refugees and for eign street vendors

found in human rights groups' reports and newspaper

articles.

Aside from such documentary evidence, Abdille furnished

no evidence demonstrating that the two attacks he

experienced in July and December of 1998 wer e not mere

acts of random lawlessness, but rather were perpetrated on

account of his race, nationality, or membership in a

particular social group. Such tenuous evidence may

support an inference that the assaults Abdille suffered rose

to the level of persecution, but it does not compel such a

conclusion. Accordingly, given our defer ential review, the

BIA's decision as to past persecution must stand.

B.

Abdille also avers that the BIA's determination that

Abdille failed to establish a well-founded fear of persecution

was not supported by record evidence. Under 8 C.F.R.

S 208.13(b)(2) (2000),

[a]n applicant shall be found to have a well-founded

fear of persecution if he or she can establish first, that

30

he or she has a fear of persecution in his or her

country of . . . last habitual residence on account of

race, religion, nationality, membership in a particular

social group, or political opinion; second, that there is

a reasonable possibility of suffering such persecution if

he or she were to return to that country; and third,

that he or she is unable or unwilling to retur n to or

avail himself or herself of the protection of that country

because of such fear.

Establishing a well-founded fear of persecution does not

require the alien to demonstrate that persecution is more

likely than not to occur; rather, fear of persecution "can be

well-founded even `when there is a less than 50% chance of

the occurrence taking place.' " Chang v. INS, 119 F.3d

1055, 1066 (3d Cir. 1997) (quoting INS v. Cardozo-Fonseca,

480 U.S. 421, 431 (1987)).

Furthermore, the demonstration of a well-founded fear of

persecution carries both a subjective and an objective

component. The alien must "show that he has a subjective

fear of persecution that is supported by objective evidence

that persecution is a reasonable possibility." Id. There is no

question that Abdille's fear of future persecution in the

event of a return to South Africa is subjectively genuine;

the only issue is whether that subjective state of mind is

buttressed by objective evidence that a r easonable person

in Abdille's circumstances would also fear persecution.

In reaching its conclusion that Abdille had not

established a well-founded fear of future persecution, the

BIA relied primarily on the fact that Abdille had failed to

establish that his fear of persecution exists country-wide,

and is not confined solely to the Cape Town area. The

requirement of demonstrating a country-wide fear of

persecution is evident from the BIA's r ecent decision in In

re C-A-L-, Int. Dec. No. 3305, 1997 WL 80985 (BIA Feb. 21,

1997), in which a Guatemalan citizen and for mer soldier

who had participated in missions against the guerrillas

operating in that country sought asylum from Guatemala,

claiming that he feared that guerrilla gr oups would

persecute him due to his past military service against them.

The BIA rejected the applicant's asylum claim, on the

ground that documentary evidence demonstrated that

31

guerrilla activity in Guatemala was localized in particular

regions of the country; that the evidence of guerilla activity

specifically targeting the soldier showed that such activity

was confined to the soldier's hometown; and that the

applicant had acknowledged that he had been able to move

to and live in other regions of Guatemala without incident.

Stating that "an alien seeking to meet the definition of a

refugee must do more than show a well-founded fear of

persecution in a particular place within a country," the BIA

concluded that the applicant's "asylum claim must. . . be

denied because he has not provided any convincing

evidence to suggest that his fear of persecution would exist

throughout Guatemala."

Further, in Etugh v. INS, 921 F .2d 36 (3d Cir. 1990), we

employed an almost identical analysis in a case involving a

Nigerian citizen seeking asylum from his native country.

The applicant claimed that he feared persecution upon

return to Nigeria, due to factional fighting between

residents of his hometown Akirika and townspeople in the

nearly village of Abala. See id. at 37. The BIA had

concluded that the applicant had failed to make the

requisite prima facie showing of a well-founded fear, in part

because he had not established that his safety would be

threatened in parts of Nigeria outside of Akirika. We agreed,

stating that the applicant "failed to allege[that] he would be

persecuted beyond the local vicinity of his hometown,

Akirika" and that "deportation would not r equire [the

applicant] to return to the purportedly dangerous region of

Nigeria where he formerly lived." Id. at 39.

Abdille claims that the record evidence supports a fear of

persecution throughout South Africa. Having examined the

exhibits in the Certified Administrative Recor d, we cannot

agree. By and large, the majority of Abdille's evidence--and

certainly the most probative items--focused on harassment

and violence only in the Cape Town region of South Africa,

which contains but a small part of the country's

population. Acts of past persecution suffer ed by an alien

are often the best objective evidence supporting the

applicant's fear of future persecution, cf. 208.13(b)(1)(i) ("If

it is determined that the applicant has established past

persecution, he or she shall be presumed also to have a

32

well-founded fear of persecution . . . ."), but the

individualized acts of persecution Abdille claims to have

experienced occurred only in Cape Town, and only at times

Abdille was working as a street vendor selling goods in

public marketplaces.

Moreover, as suggested above, the r ecord contains no

evidence indicating that after Abdille moved to

Johannesburg in January 1999, his three-week stay there

was disturbed, and, more importantly, Abdille admitted

that he never attempted to live in any region of South Africa

other than Cape Town and Johannesburg. Finally, the most

pertinent pieces of documentary evidence--i.e., those

reports relating attacks on foreign street vendors, rescribed

supra in note 14--describe such assaults as occurring in

areas around the cities of Cape Town, Port Elizabeth, and

Johannesburg; they do not mention whether similar anti-

foreigner campaigns exist in other regions of South Africa.

Under Elias-Zacarias's deferential standard, we cannot say

that such evidence compels a conclusion contrary to the

BIA's determination that Abdille failed to establish a well-

founded fear of persecution. Accordingly, the BIA's decision

as to Abdille's well-founded fear must stand.

VII. Conclusion

We conclude that the BIA's consideration of the question

whether Abdille received an offer of some type of permanent

resettlement from the South African gover nment was

incomplete. We will therefore grant Abdille's Petition for

Review, and remand to the BIA for investigation into the

content of South African immigration law and practice, for

resolution of the question whether Abdille r eceived an offer

of some type of permanent resettlement, and for such

further proceedings as are necessary to determine Abdille's

immigration status. However, we also conclude that the BIA

did not err in denying Abdille asylum from South Africa on

the ground that he failed to make the r equisite showing of

past persecution or a well-founded fear of persecution, and

deny the Petition for Review to that extent.

33

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

34