A-G-G

Cite as 25 I&N Dec. 486 (BIA 2011) Interim Decision #3713

Matter of A-G-G-, Respondent

Decided May 12, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Pursuant to section 208(b)(2)(A)(vi) of the Immigration and Nationality Act, 8 U.S.C.

§ 1158(b)(2)(A)(vi) (2006), and 8 C.F.R. § 1208.15 (2011), the framework for making

firm resettlement determinations focuses exclusively on the existence of an offer

of permanent resettlement and allows for the consideration of direct and indirect evidence.

(2) The Department of Homeland Security has the initial burden to make a prima facie

showing of an offer of firm resettlement by presenting direct evidence of an alien’s ability

to stay in a country indefinitely; when direct evidence is unavailable, indirect evidence

may be used if it has a sufficient level of clarity and force to establish that the alien is able

to permanently reside in the country.

(3) An asylum applicant can rebut evidence of a firm resettlement offer by showing

by a preponderance of the evidence that such an offer has not been made or that the

applicant’s circumstances would render him or her ineligible for such an offer

of permanent residence.

(4) Evidence that permanent resident status is available to an alien under the law of the

country of proposed resettlement may be sufficient to establish a prima facie showing

of an offer of firm resettlement, and a determination of firm resettlement is not contingent

on whether the alien applies for that status. Matter of Soleimani, 20 I&N Dec. 99 (BIA

1989), modified.

FOR RESPONDENT: Marquette D. Evans, Esquire, Cincinnati, Ohio

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ryan Alger, Assistant Chief

Counsel

BEFORE: Board Panel: COLE, PAULEY, and GREER, Board Members.

COLE, Board Member:

In a decision dated April 10, 2007, an Immigration Judge granted the

respondent’s application for asylum under section 208 of the Immigration and

Nationality Act, 8 U.S.C. § 1158 (2006 & Supp. III 2009).1 The Department

1

The Immigration Judge did not render a decision on the respondent’s applications

for voluntary departure, withholding of removal under section 241(b)(3) of the Act,

(continued...)

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of Homeland Security (“DHS”) has appealed from that decision, arguing that

the respondent is subject to the firm resettlement bar to asylum in section

208(b)(2)(A)(vi) of the Act. In this case, we will set forth the Board’s

framework for making firm resettlement findings and remand the record for

further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mauritania and member

of the black Wolof ethnic group.2 In 1990, he was arrested and beaten

by Mauritanian soldiers who transported him to a military camp. He was

detained at the camp for a month, during which time he was held with other

detainees in close quarters, inadequately fed, beaten, and forced to work

as a slave. He was thereafter forcibly deported to Senegal, where he remained

for a period of more than 8 years.

While living in Senegal, the respondent married a Senegalese citizen,

with whom he had two children, and he worked in a market selling clothing.

The respondent was issued an identification number in the Senegalese

Government’s registry of foreigners and never experienced any problems with

Senegalese authorities.

The respondent departed Senegal and arrived in the United States

in September 1999. He filed an application for asylum with the former

Immigration and Naturalization Service (“INS”) less than a year later. The

respondent was subsequently placed in these removal proceedings, where

he renewed his application for asylum before the Immigration Judge.

During his individual hearing before the Immigration Judge, the respondent

testified that he left Senegal because he did not have legal status there and

he felt uncomfortable on account of Senegal’s close proximity to Mauritania.

He further testified that he never attempted to obtain permanent legal status

in that country.

The Immigration Judge found the respondent credible and granted his

application for asylum. Specifically, the Immigration Judge determined that

the respondent suffered past persecution in Mauritania on account of his black

Wolof ethnicity and that the DHS failed to rebut the regulatory presumption

(...continued)

8 U.S.C. § 1231(b)(3) (2006), or protection under the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18,

1988), pursuant to 8 C.F.R. § 1208.16(c) (2007).

2

The factual and procedural history set forth in this section is based on findings of facts and

conclusions of law in the Immigration Judge’s decision.

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that the respondent has a well-founded fear of persecution in Mauritania on the

same basis. In granting the respondent’s application for asylum, the

Immigration Judge rejected the DHS’s argument that the respondent was

firmly resettled in Senegal and was therefore barred from asylum pursuant

to section 208(b)(2)(A)(vi) of the Act. Finally, the Immigration Judge

determined that the respondent merited a grant of asylum in the exercise

of discretion.

II. ISSUE

The issue before us is whether the respondent is subject to the firm

resettlement bar and is therefore ineligible for asylum. In deciding this issue,

we will provide a framework for determining firm resettlement under section

208(b)(2)(A)(vi) of the Act and the corresponding regulations set forth

at 8 C.F.R. § 1208.15 (2011).

III. STANDARD OF REVIEW

We review de novo the question whether the facts support a determination

that an alien was “firmly resettled” within the meaning of section

208(b)(2)(A)(vi) of the Act and 8 C.F.R. § 1208.15. 8 C.F.R.

§ 1003.1(d)(3)(ii) (2011). The Immigration Judge’s findings of fact leading

to the determination whether an alien was “firmly resettled” are reviewed for

clear error. 8 C.F.R. § 1003.1(d)(3)(i).

IV. ANALYSIS

A. Current Statutory and Regulatory Language

Section 208(b)(2)(A)(vi) of the Act provides that an alien is ineligible for

asylum if “the alien was firmly resettled in another country prior to arriving

in the United States.” The term “firm resettlement” is defined in the

regulations set forth at 8 C.F.R. § 1208.15 as follows:

An alien is considered to be firmly resettled if, prior to arrival in the

United States, he or she entered into another country with, or while in that country

received, 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 country was a necessary consequence

of his or her flight from persecution, that he or she remained in that country

only as long as was necessary to arrange onward travel, and that he or she did

not establish significant ties in that country; or

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

so substantially and consciously restricted by the authority of the country

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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,

whether permanent or temporary, 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, such as travel documentation that includes a right of entry or reentry,

education, public relief, or naturalization, ordinarily available to others resident

in the country.

As the following history and analysis will show, firm resettlement has

evolved from first being a mandatory bar to asylum, to being a discretionary

factor for consideration, to finally reverting to the statutory mandatory bar that

it is today.

B. History of the Firm Resettlement Bar

1. Firm Resettlement as a Mandatory Bar Prior to 1957

The origins of the concept of firm resettlement as a bar to refugee

protection were in the Constitution of the International Refugee Organization,

http://treaties.un.org/doc/Treaties/1948/08/19480820%2007-01%20AM/Ch

_V_1p.pdf (“IRO Constitution”). The International Refugee Organization was

created to deal with the large-scale refugee and displaced persons crisis that

existed in the aftermath of World War II. The 1946 IRO Constitution defined

refugees and displaced persons and excluded from protection those who had

either acquired a new nationality or otherwise became “firmly established.”3

The Displaced Persons Act of 1948 provided for the issuance of a visa

to the United States to an “[e]ligible displaced person,” who, among other

requirements, “on January 1, 1948, had not been firmly resettled.” Displaced

3

The IRO Constitution provided that refugees or displaced persons “cease[d] to be the

concern” of the IRO where one of the following occurred:

(a) when they have returned to the countries of their nationality in United Nations

territory, unless their former habitual residence to which they wish to return is outside

their country of nationality; or (b) when they have acquired a new nationality;

or (c) when they have, in the determination of the Organization become otherwise

firmly established; or (d) when they have unreasonably refused to accept the proposals

of the Organization for their resettlement or repatriation; or (e) when they are making

no substantial effort towards earning their living when it is possible for them to do so,

or when they are exploiting the assistance of the Organization.

IRO Constitution, annex I, part I, sec. D (emphasis added). The IRO Constitution does not

define the meaning of the term “firmly established.”

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Persons Act of 1948, ch. 647, § 2(c)(1), 62 Stat. 1009, 1009. Similarly, the

1951 United Nations Convention Relating to the Status of Refugees, which

remains in effect today, excludes from the definition of a “refugee” a person

who “has acquired a new nationality, and enjoys the protection of the country

of his new nationality” and a person who “is recognized by the competent

authorities of the country in which he has taken residence as having the rights

and obligations which are attached to the possession of the nationality of that

country.” United Nations Convention Relating to the Status of Refugees, art.

1, §§ C(3), E, adopted July 28, 1951, 189 U.N.T.S. 150 (entered into force

Apr. 22, 1954), http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.

Two years later, Congress passed the Refugee Relief Act of 1953, ch. 336,

67 Stat. 400. Under this Act, the term “refugee” was expressly limited

to individuals who had not been “firmly resettled.” Id. § 2(a), 67 Stat. at 400.4

2. Firm Resettlement from 1957 through Early 1990

In 1957, Congress amended the Immigration and Nationality Act of 1952

by granting a special nonquota immigrant visa to “refugee-escapees,”

but it omitted the “firmly resettled” language from the definition

of a “refugee-escapee.”5 Act of Sept. 11, 1957, Pub. L. No. 85-316, 71 Stat.

639. In doing so, Congress eliminated firm resettlement as a statutory bar

to establish refugee status. In addition, Congress did not include the firm

resettlement bar in the Fair Share Refugee Act of 1960, Pub. L. No. 86-648,

74 Stat. 504, and the Act of October 3, 1965, Pub. L. No. 89-236, 79 Stat. 911.

However, in cases decided by the former INS, the Regional Commissioner

continued to consider firm resettlement as a bar based on the reasoning that

an alien who is firmly resettled can no longer be considered to be fleeing

persecution. For example, in Matter of Sun, 12 I&N Dec. 36 (Reg. Comm’r

4

The Refugee Relief Act of 1953 defined a “refugee” as

any person in a country or area which is neither Communist nor

Communist-dominated, who because of persecution, fear of persecution, natural

calamity or military operations is out of his usual place of abode and unable to return

thereto, who has not been firmly resettled, and who is in urgent need of assistance for

the essentials of life or for transportation.

Refugee Relief Act of 1953 § 2(a), 67 Stat. at 400 (emphasis added).

5

The 1957 amendment defined a “refugee-escapee” as “any alien who, because

of persecution or fear of persecution on account of race, religion, or political opinion has fled

or shall flee (A) from any Communist, Communist-dominated, or Communist-occupied

areas, or (B) from any country within the general area of the Middle East, and who cannot

return to such area, or to such country, on account of race, religion, or political opinion.”

Act of Sept. 11, 1957 § 15(c)(1), 71 Stat. at 643.

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1966), an alien who was born in mainland China and fled to the Republic

of China (Formosa), where he was given citizenship and issued a passport,

sought refugee status in the United States pursuant to section 203(a)(7) of the

Act, 8 U.S.C. § 1157 (1964). Although section 203(a)(7) of the Act did not

contain an explicit firm resettlement bar, the Regional Commissioner

concluded that the alien, who worked for the Government of Formosa for

16 years and enjoyed all of the rights of residence and employment offered

to other citizens of that country, including citizenship and a passport, could not

claim to be fleeing persecution.

The Regional Commissioner further reasoned that “Congress obviously did

not intend that the fact that an individual had fled from a country because

of persecution or fear of persecution should, regardless of intervening

circumstances, qualify him forever as a refugee.” Matter of Sun, 12 I&N Dec.

at 39. Therefore, the Regional Commissioner determined that the alien was

not a refugee under section 203(a)(7) of the Act because he was firmly

resettled in Formosa. The Regional Commissioner further applied this

reasoning to a series of 1967 cases involving citizens of China, holding that

a firmly resettled alien is not fleeing persecution and is therefore not a refugee

under section 203(a)(7) of the Act.6 In all of these cases where firm

resettlement was not a mandatory bar to refugee status, the Regional

Commissioner considered whether the alien had the rights and privileges given

to others residing permanently in the country.

In 1971, the Supreme Court addressed firm resettlement for the first time

in Rosenberg v. Yee Chien Woo, 402 U.S. 49, 50 (1971), a case involving

a native of China who lived and worked in Hong Kong for 6 years and entered

the United States on a business visitor visa in 1960. The alien in that

case sought admission as a refugee under section 203(a)(7) of the Act

after he overstayed his visa and was placed in immigration proceedings. Id.

at 50-51. The former INS found that the alien was firmly resettled in Hong

Kong and concluded that his presence in the United States was not

6

Compare Matter of Moy, 12 I&N Dec. 117, 120 (Reg. Comm’r 1967) (finding that an alien

was firmly resettled where he lived for 2 years in Colombia, worked, and had substantial

assets and a Colombian reentry permit with an expiration date), and Matter of Ng, 12 I&N

Dec. 411 (Reg. Comm’r 1967) (finding that the alien was firmly resettled in Hong Kong,

where he fled with his parents as a minor, because his parents’ resettlement in Hong Kong

was imputed to him), with Matter of Chai, 12 I&N Dec. 81 (Reg. Comm’r 1967) (finding

that the alien was not firmly resettled in Hong Kong because he lived there as a student for

5 years and had not reestablished himself or been granted any rights or privileges offered

to other citizens and permanent residents of Hong Kong), and Matter of Hung, 12 I&N Dec.

178 (Reg. Comm’r 1967) (finding that the alien was not firmly resettled in Hong Kong

because, even though she had a British passport, she had only lived there as a minor with her

family for 6 or 7 years and her parents and siblings were admitted into the United States and

adjusted to lawful permanent resident status after her arrival in the United States).

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a consequence of his flight. The United States District Court for the Southern

District of California found that the alien was not firmly resettled, and the

United States Court of Appeals for the Ninth Circuit upheld that decision. Id.

at 51-52.

The Supreme Court found that although firm resettlement was not

a statutory bar, it was relevant to an alien’s refugee status under section

203(a)(7) of the Act. Id. at 56. The Court held that firm resettlement was “one

of the factors which the [INS] must take into account to determine whether

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

persecution.” Id. The Court also observed that the 1957 amendment to the

Act introduced a new requirement that the alien must have fled from certain

areas in order to qualify as a refugee. Id. at 54-55. Therefore, the Court found

that the omission of the “firmly resettled” language from the Refugee Relief

Act of 1957 and subsequent refugee legislation was not an intentional act

by Congress to depart from the established concept of firm resettlement. Id.

Indeed, the Court found Congress’ change in language consistent with the

central theme of 23 years of refugee legislation, which was to create a “haven

for the world’s homeless people.” Id. at 55. Drawing on this analysis, the

Court concluded that Congress did not intend to provide refugee protection

to aliens who had already found shelter and begun new lives in other countries.

Id. at 56.

Following the Supreme Court’s decision in Yee Chien Woo, the Regional

Commissioner and the Board considered as an important discretionary factor

in refugee determinations the question whether aliens had been granted the

privileges and benefits given to others permanently residing in the country.

In Matter of Kwan, 14 I&N Dec. 499 (Reg. Comm’r 1973), the Regional

Commissioner found that an alien was firmly resettled in Hong Kong, where

he had lived for more than 13 years, because he attained the status of a Chinese

resident of Hong Kong, which granted him the privileges and benefits

of permanent residence. Similarly, in Matter of Guiragossian, 17 I&N Dec.

161 (BIA 1979), the Board found that an alien from Bulgaria was firmly

resettled in former West Germany because of his more than 12-year residence

and steady employment in that country and his ability to return there after

a visit to the United States.

In 1980, the INS issued interim regulations governing asylum procedures

that made firm resettlement a mandatory bar to asylum in decisions by INS

district directors. 8 C.F.R. § 208.8(f)(1)(ii) (1981). These regulations

considered a refugee firmly resettled “if he was offered resident status,

citizenship, or some other type of permanent resettlement by another nation

and traveled to and entered that nation as a consequence of his flight from

persecution.” 8 C.F.R. § 208.14 (1981). The regulations provided

an exception if the asylum applicant established “that the conditions of his

residence in that nation were so substantially and consciously restricted by the

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authority of the country of asylum/refuge that he was not in fact resettled.” Id.

Factors the district directors were to consider, “in light of the conditions under

which other residents of the country live, [included] the type of housing,

whether permanent or temporary, 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 (such as travel documentation, education, public relief,

or naturalization) available to others resident in the country.” Id.

Although the mandatory firm resettlement bar was only applicable to the

INS district directors, the Board treated firm resettlement as a bar and

considered the INS regulatory factors in several cases. See 8 C.F.R.

§ 208.8(f)(1)(ii). For example, in Matter of Lam, 18 I&N Dec. 15, 19-20 (BIA

1981), the Board cited the 1980 regulations that provided for consideration

of the housing, employment, property rights, and other rights and privileges

available to refugees, as compared to those available to others resident in the

country, and remanded the case for the Immigration Judge to consider the issue

of firm resettlement. Likewise, in Matter of Portales, 18 I&N Dec. 239, 242

(BIA 1982), the Board found that Cuban asylum applicants had been firmly

resettled in Peru where they were issued refugee documents valid for 2 years,

there was no evidence in the record that the Peruvian Government would

terminate previously granted refugee status or that the refugee documents were

not renewable, and the aliens were permitted to live, travel, and be employed

without restriction.

In Matter of Soleimani, 20 I&N Dec. 99, 103 (BIA 1989), the Board

withdrew from Matter of Lam and Matter of Portales insofar as those cases

suggested that an alien found to have been firmly resettled is ineligible for

asylum. We clarified that the regulations prohibiting INS district directors

from granting asylum to aliens who had firmly resettled in a third country did

not apply to either Immigration Judges or the Board itself. Matter

of Soleimani, 20 I&N Dec. at 104. Rather, we found that firm resettlement

could be considered as a discretionary factor by Immigration Judges and the

Board in deciding whether to grant asylum. Id. at 103-05. However,

we observed that a finding of firm resettlement would ordinarily preclude

a grant of asylum unless the alien could demonstrate compelling

countervailing equities in his or her favor. Id. at 105.

The alien in Matter of Soleimani was a Jewish woman who fled Iran and

subsequently lived in Israel for 10 months. Id. at 100-01. She attended school

to study Hebrew but did not work or seek any financial benefits or permanent

status. Id. at 101, 107. An advisory opinion by the United States Department

of State’s Bureau of Human Rights and Humanitarian Affairs in the record

of proceedings provided that pursuant to Israel’s Law of Return, the alien was

entitled to reside permanently and enjoy the rights of citizenship in Israel. Id.

at 102. The Immigration Judge determined that the respondent could have

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become a resident of Israel under the Law of Return and her choice to not

become a resident did not obviate the fact that she was firmly resettled there.

Id. at 102, 106. Therefore, the Immigration Judge found her firmly resettled

in Israel and denied her application for asylum. Id. at 102.

The Board disagreed and found that the alien was not firmly resettled

in Israel. We held that the offer must be actual and specific and the mere

reference to the Law of Return was insufficient to establish firm resettlement.

We found that the record lacked evidence that the alien would be eligible for

“permanent resettlement” under the law and that there was no evidence

regarding the extent of any restrictions or conditions that were placed on offers

of resettlement under that law. Id. at 106. We further observed that the INS

bore the burden of submitting evidence regarding foreign laws upon which

it sought to rely. Concluding that the Law of Return was insufficient

to establish firm resettlement, we held that a totality of the circumstances

should be considered in determining whether an alien was firmly resettled,

including such factors as the amount of time between the alien’s flight and the

application for asylum, as well as his or her family ties, intent, and business

or property connections. Id.

3. Firm Resettlement as a Mandatory Bar After Matter of Soleimani

In 1990, the Attorney General amended the firm resettlement regulations.

The amended regulations, which became effective October 1, 1990, provided

for the mandatory denial of asylum based on a finding of firm resettlement by

all adjudicators, not just the INS district directors. 8 C.F.R. § 208.14(c)(2)

(1991). The definition of firm resettlement contained in the 1990 regulations

is substantially the same as the current firm resettlement regulations set forth

at 8 C.F.R. § 1208.15. See 8 C.F.R. § 208.15 (1991).

In 1996, Congress adopted the regulatory firm resettlement bar when

it amended section 208 of the Act in section 604(a) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-691 (“IIRIRA”). See

section 208(b)(2)(A)(vi) of the Act. The implementing regulations, which

were finalized in 2000, clarified that the firm resettlement bar applies

to asylum applications filed before and after the passage of the IIRIRA.

See 8 C.F.R. §§ 1208.13(c)(1), (2) (2001).7

7

To implement the IIRIRA, the Department of Justice published notice of proposed

rulemaking on January 3, 1997, with a 30-day comment period. See Inspection and

Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal

Proceedings; Asylum Procedures, 62 Fed. Reg. 444 (Jan. 3, 1997). On March 6, 1997, the

(continued...)

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C. Firm Resettlement in the Federal Courts of Appeals

Since 1990, the Federal courts of appeals that have addressed firm

resettlement have adopted two approaches, which are identified as the “direct

offer” approach and the “totality of the circumstances” approach. Both

approaches provide for the consideration of direct and indirect evidence

of an offer of permanent resident status, citizenship, or some other type

of permanent resettlement, which we will refer to as “firm resettlement.”

The “direct offer” approach, which has been adopted by the United States

Courts of Appeals for the Third, Seventh, and Ninth Circuits, focuses on the

existence of an offer vel non, made by a government, of some type

of permanent residence that would allow the alien to remain in that country

indefinitely in some official status. See Maharaj v. Gonzales, 450 F.3d 961

(9th Cir. 2006); Diallo v. Ashcroft, 381 F.3d 687 (7th Cir. 2004); Abdille

v. Ashcroft, 242 F.3d 477 (3d Cir. 2001).8 Under this approach, the courts look

first to direct evidence of an offer, such as a grant of asylum, a residence

permit, a resident stamp, or some type of travel document such as a passport.

If direct evidence is unobtainable, the courts look to indirect evidence

of an offer, such as the country’s citizenship or residence laws, 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. These

courts have also observed that this indirect evidence may constitute an offer

of firm resettlement if it rises to a “sufficient level of clarity and force”

to indicate that the third country officially sanctions the alien’s indefinite

presence. Abdille v. Ashcroft, 242 F.3d at 487; see also Maharaj v. Gonzales,

450 F.3d at 973-74; Diallo v. Ashcroft, 381 F.3d at 694.

By contrast, the totality of the circumstances approach adopted by the

Second and Fourth Circuits considers evidence of a direct offer of firm

resettlement as only one factor to be considered with other factors that are not

(...continued)

Department of Justice published an interim rule with request for comments, which became

effective April 1, 1997. Inspection and Expedited Removal of Aliens; Detention and

Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg.

10,312 (Mar. 6, 1997). The final rule was issued on December 6, 2000, and became

effective on January 5, 2001. Asylum Procedures, 65 Fed. Reg. 76,121 (Dec. 6, 2000).

8

The Tenth Circuit also appears to follow the direct offer approach but has not explicitly

adopted that approach in a published decision. See Elzour v. Ashcroft, 378 F.3d 1143,

1151-52 (10th Cir. 2004); Abdalla v. INS, 43 F.3d 1397 (10th Cir. 1994).

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offer based, which we refer to as “indirect evidence.”9 See Sall v. Gonzales,

437 F.3d 229 (2d Cir. 2006); Mussie v. U.S. INS, 172 F.3d 329 (4th Cir. 1999).

Other factors considered by the courts include the length of an alien’s stay

in the third country, familial ties, receipt of benefits, and business or property

connections. Under the totality of the circumstances approach, indirect

evidence is still considered even if there is direct evidence of an offer of firm

resettlement. The remaining five circuits, the First, Fifth, Sixth, Eighth, and

Eleventh Circuits, have not adopted an explicit approach on firm resettlement.

Despite these divergent approaches, there is consistency in the framework

applied by the circuit courts. The courts agree that the DHS bears the initial

burden of going forward with evidence indicating that the firm resettlement bar

applies. See, e.g., Maharaj v. Gonzales, 450 F.3d at 972-73; Sall v. Gonzales,

437 F.3d at 233-34; Diallo v. Ashcroft, 381 F.3d at 693; Salazar v. Ashcroft,

359 F.3d 45, 50 (1st Cir. 2004); Abdille v. Ashcroft, 242 F.3d at 480, 491-92;

Mussie v. U.S. INS, 172 F.3d at 331-32; Abdalla v. INS, 43 F.3d 1397, 1399

n.8 (10th Cir. 1994). Both approaches allow for evaluation of direct and

indirect evidence of an offer of firm resettlement. The courts also allow for the

consideration of evidence submitted by the alien to rebut the DHS’s evidence

of firm resettlement. See, e.g., Diallo v. Ashcroft, 381 F.3d at 693; Salazar

v. Ashcroft, 359 F.3d at 50.

1. Direct Offer Approach

The circuit courts adhering to the direct offer approach first consider

evidence of whether an offer of firm resettlement has been made. For

example, in Abdille v. Ashcroft, 242 F.3d at 480-81, 488, a case involving

a Somalian individual who was granted asylum in South Africa, the DHS

presented a Certificate of Exemption from the South African Government,

which entitled the alien to asylum for a 2-year period. Id. at 488. The

DHS also introduced a letter from the South African Government, which

provided that at the end of his 2-year period he was required to contact the

Department of Home Affairs to have his refugee status reviewed

or to otherwise legalize his stay. Id. at 488-89. The letter indicated that

if he did not do so and decided to remain in South Africa without legalizing his

status, he would face prosecution under South African law. Id. The Board

affirmed the Immigration Judge’s firm resettlement finding. The Third Circuit

reversed and remanded the case to the Board for further investigation into

9

The District of Columbia Circuit also adopted the totality of the circumstances approach

in Chinese American Civic Counsel v. Attorney General of the United States, 566 F.2d 321

(D.C. Cir. 1977). However, that case was decided before firm resettlement was a mandatory

bar and before the existence of the regulatory requirement focusing on a direct offer.

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South African immigration law and practice and for a determination whether

the alien’s refugee status, which was valid for a 2-year period, amounted

to a temporary offer or “some other type of permanent resettlement” within the

meaning of 8 C.F.R. § 1208.15. Id. at 489-90.

In Diallo v. Ashcroft, 381 F.3d at 691, the Seventh Circuit considered the

case of a native and citizen of Mauritania who lived in Senegal for 4 years but

did not have a work permit or official permission to remain there. The Board

affirmed the Immigration Judge’s finding that the alien was firmly resettled

in Senegal. The Seventh Circuit reversed the firm resettlement finding, in part

because the Immigration Judge failed to consider whether a formal offer

of resettlement had been made. The court also found that the Immigration

Judge ignored the alien’s testimony that he lacked a legal right to live or work

in Senegal. The court concluded that the alien’s 4-year stay, his work

as a merchant without permission, and the fact that he shared an apartment

with an acquaintance were insufficient to show that he was given an offer

of firm resettlement in Senegal. Id. at 695-96.

Similarly, in Maharaj v. Gonzales, 450 F.3d at 973, the Ninth Circuit found

that the existence of an offer was the exclusive means of establishing firm

resettlement under a plain reading of the regulations. The court reversed the

Board’s decision, which found an alien from Fiji firmly resettled in Canada

because he lived and worked there for 4 years, received government benefits,

and applied for asylum but failed to await adjudication of his application. The

court remanded the record for further consideration of the question whether

a direct offer of firm resettlement had been made. Id. at 977-78. Specifically,

the court remanded for the DHS to present evidence regarding the Canadian

refugee process, including what restrictions apply and whether refugee status

in Canada amounted to an offer of firm resettlement.10

10

The Ninth Circuit recently recognized the importance of making explicit firm resettlement

determinations in Su Hwa She v. Holder, 629 F.3d 958 (9th Cir. 2010). In that case, the

court observed that the Immigration Judge did not enter a finding on firm resettlement. Id.

at 963. The court found that the DHS met its initial burden of showing firm resettlement

where a Burmese asylum applicant obtained a Taiwanese passport. Id. at 962, 964.

However, the court noted that direct evidence of nationalization may not be sufficient

to establish firm resettlement where the alien’s credible testimony could refute the

significance of nationalization. Id. at 963 n.3. The alien claimed that she fraudulently

obtained her Taiwanese passport and that she only stayed in Taiwan as long as necessary

to arrange further travel. Id. at 962-63. The court remanded the case to the Board to further

clarify its firm resettlement finding. Id. at 963-64.

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2. Totality of the Circumstances Approach

The two circuits adopting the totality of the circumstances approach give

equal weight to all factors and consider indirect evidence even if there is direct

evidence of an offer of firm resettlement. In Mussie v. U.S. INS, 172 F.3d

331-32, the Fourth Circuit upheld the Board’s firm resettlement finding

because the alien, an Ethiopian woman, was granted asylum by Germany and

had German travel documents. Although this would be direct evidence

of an offer of firm resettlement, the court also considered other indirect

evidence, including the alien’s 6-year residence in Germany, employment,

payment of taxes, rental of an apartment, and her receipt of government

assistance for language schooling, transportation, rent, and food.

Similarly, in Sall v. Gonzales, 437 F.3d at 235, the Second Circuit found

that evidence that a Mauritanian man was living in Senegal for 5 years was

insufficient to establish firm resettlement and remanded the case for

consideration of the totality of the circumstances. The court emphasized that

the question whether the alien received an “actual offer of permanent resident

status” was of particular importance to the firm resettlement inquiry. Id.

at 235. However, the court found that indirect evidence should also

be considered. Such indirect evidence included the following: the alien’s

intention to settle in Senegal, family ties, business or property connections, and

whether he had legal rights normally given to people who are permanently

resettled, such as the right to work and enter and exit Senegal. Id.

Although the Second Circuit observed that the regulations place “particular

importance” on the presence of an actual offer of permanent residence status,

the court also noted that the regulations permit an offer of firm resettlement

to come in forms other than a direct offer, because they provide for an offer

of “some other type of permanent resettlement.” Id. at 233. The court

recognized that offers in countries with less elaborate immigration regimes

than the United States may not include written documentation. Id.

Furthermore, the court found the broader analysis used in the totality of the

circumstances approach to be more consistent with the underlying purpose

of asylum, namely the protection of refugees with nowhere to turn, than the

more rigid direct offer approach, which requires the receipt of a formal offer

of firm resettlement. Id.11

11

More recently, in Jin Yi Liao v. Holder, 558 F.3d 152 (2d Cir. 2009), the Second Circuit

considered the case of a Chinese alien who had lived in the Dominican Republic before

seeking asylum in the United States. Both the Immigration Judge and the Board found that

the alien was firmly resettled in the Dominican Republic because she had received

a temporary resident visa from the Dominican Republic. Id. at 155-57. The Second Circuit

reversed the Board and held that the alien’s resident visa was insufficient to establish firm

(continued...)

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3. Undecided Circuits

The remaining circuits have not clearly decided which approach to follow.

The Fifth and Eleventh Circuits have not addressed firm resettlement

in a published decision.12 In Bonilla v. Mukasey, 539 F.3d 72 (1st Cir. 2008),

the First Circuit applied the direct offer approach in the case of a native

of Colombia who had a 5-year Venezuelan resident stamp in his Colombian

passport. The court remanded the case to the Board to determine whether

renewal of the resident stamp was an administrative requirement as routine

as renewing a passport. Although the court viewed the Venezuelan resident

stamp as a potential direct offer of firm resettlement, it did not rule out the

application of the totality of the circumstances approach in other cases. Id.

at 81-82.13

Although not explicitly adopting the direct offer approach, the Eighth

Circuit found the aliens firmly resettled in Israel in Rife v. Ashcroft, 374 F.3d

606 (8th Cir. 2004). The case involved Azerbaijani Christians who resided in

Israel for 3 years and were offered citizenship and permanent resettlement

visas under Israel’s Law of Return. The court held that the existence

of a formal offer of firm resettlement is the proper place to begin the firm

resettlement analysis but, in some cases, a formal offer is not dispositive. Id.

at 611.14

(...continued)

resettlement because the visa was temporary and expired within a month of the alien’s

arrival in the Dominican Republic. Id. at 157-58. The court concluded that the significance

of the visa must be evaluated along with indirect evidence of firm resettlement. Id. at 158.

The case was remanded to the Board for further consideration.

12

The Fifth Circuit, in Tesfamichael v. Gonzales, 411 F.3d 169, 177 (5th Cir. 2005),

questioned the firm resettlement determination by the Board and the Immigration Judge

because the evidence in the case indicated that the alien had no intention of remaining in the

third country and only stayed there to arrange further travel. However, the court did not

provide a firm resettlement analysis because the case before it only involved a motion for

stay of removal, which it granted.

13

In Bonilla v. Mukasey, 539 F.3d at 82 n.3, the court noted in dicta that a finding of firm

resettlement can be supported by indirect evidence, such as the alien’s establishment

of significant familial or business ties or the prolonged duration of the alien’s resettlement.

14

The Eighth Circuit did not enunciate the factors to be considered where the existence

of a formal offer of firm resettlement is not present or dispositive. However, the court cited

its decision in Farbakhsh v. INS, 20 F.3d 877 (8th Cir. 1994), which was issued prior to the

mandatory firm resettlement bar, as an example of a case in which a formal offer was not

dispositive. Rife v. Ashcroft, 374 F.3d at 611. In Farbakhsh v. INS, 20 F.3d at 882, the

Eighth Circuit applied the totality of the circumstances approach to find an Iranian citizen

firmly resettled in Spain, because he had resided in that country for more than 4 years

(continued...)

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In Ali v. Reno, 237 F.3d 591 (6th Cir. 2001), the Sixth Circuit, in whose

jurisdiction this case arises, considered the situation of an Iraqi woman who

resided in Denmark. The court found that the alien received an offer

of “permanent resident status” because she was granted refugee status by the

Danish Government before her entry to that country and received a Danish

passport and residence permit. Id. at 595. Therefore, the court held that she

was firmly resettled in Denmark without explicitly adopting the direct offer

or totality of the circumstances approach.15

D. Framework for Firm Resettlement Determinations

As at least one circuit court has observed, the Board has not

issued a decision setting forth the proper framework to apply to firm

resettlement determinations under current law since Matter of Soleimani,

when firm resettlement was applied as a discretionary factor. See Maharaj

v. Gonzales, 450 F.3d at 971-72 (“Unfortunately, the BIA has not

revisited firm resettlement in a published opinion since Soleimani

was decided in 1989 under a different, discretionary regime.”).16 We now

(...continued)

with the intention to remain, had a pending asylum application, and had two siblings

residing there.

15

The Sixth Circuit also noted that the declaration by Danish authorities that they were not

obligated to accept the alien into their country did not undermine the Board’s finding of firm

resettlement because the firm resettlement regulations focus on the alien’s status prior

to entering the United States. Ali v. Reno, 237 F.3d at 596.

16

We have published two cases involving firm resettlement since Matter of Soleimani.

However, neither case sets forth a framework for firm resettlement determinations.

In Matter of D-L- & A-M-, 20 I&N Dec. 409, 414 (BIA 1991), we did not view firm

resettlement as a mandatory bar but rather, pursuant to Matter of Soleimani, considered

whether or not the Cuban asylum applicants merited asylum as a matter of discretion, despite

their firm resettlement in a third country. The asylum applicants were found to have firmly

resettled in Spain because they lived and worked in that country for 6 years as lawful

temporary residents with the option to become permanent residents. We held that the

applicants demonstrated no compelling countervailing equities to warrant a discretionary

grant of asylum despite their firm resettlement in Spain.

More recently, in Matter of K-R-Y- & K-C-S-, 24 I&N Dec. 133 (BIA 2007),

we addressed the firm resettlement bar as it relates to the North Korean Human Rights Act

of 2004, Pub. L. No. 108-333, 118 Stat. 1287 (“NKHRA”). The NKHRA provides that

North Koreans cannot be denied refugee status or asylum in the United States on account

of their legal right to apply for and receive South Korean citizenship under the Constitution

of South Korea. NKHRA § 302(a), 118 Stat. at 1295. The NKHRA also specifies that

it does not apply to former North Korean nationals, such as the asylum applicants

(continued...)

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set forth a framework for determinations involving firm resettlement

as a mandatory bar to asylum.

Our framework for making firm resettlement determinations involves

a four-step analysis, which follows the language of the regulations at 8 C.F.R.

§ 1208.15 and focuses exclusively on the existence of an offer. The

framework is consistent with both the direct offer and totality of the

circumstances approaches because, like these, it allows for the consideration

of direct and indirect evidence. It is also consistent with 8 C.F.R.

§ 1003.1(d)(1), which requires the Board to follow the regulations in its

adjudication of cases. Although the regulations do not explicitly identify

factors to consider in determining whether an offer was made, we find that

according equal weight to indirect evidence, such as the country’s residence

laws, length of an alien’s residence in an intervening country, or the alien’s

intent, is inconsistent with the fact that only the government of the intervening

country can grant an alien the right to lawfully and permanently reside there.

Such a right “cannot be gained through adverse possession.” Abdille

v. Ashcroft, 242 F.3d at 487.

In the first step of the analysis, the DHS bears the burden of presenting

prima facie evidence of an offer of firm resettlement. Neither section

208(b)(2)(A)(vi) of the Act nor the firm resettlement regulations at 8 C.F.R.

§ 1208.15 explicitly allocate the burden of proving firm resettlement.

However, firm resettlement determinations are governed by the general

regulation relating to relief from removal, which provides that once the

“evidence indicates” that a mandatory bar to relief “may apply,” the alien bears

the burden of showing by a preponderance of the evidence that the mandatory

bar does not apply. 8 C.F.R. § 1240.8(d) (2011).

As previously discussed, the circuit courts of appeals have held that the

DHS bears the initial burden of establishing that “evidence indicates” that

a mandatory bar to relief applies. Furthermore, in this case the DHS does not

dispute that it bears the initial burden of making a prima facie showing that the

respondent was firmly resettled in Senegal.

In order to make a prima facie showing that an offer of firm

resettlement exists, the DHS should first secure and produce direct

evidence of governmental documents indicating an alien’s ability to stay

in a country indefinitely. Such documents may include evidence

(...continued)

in Matter of K-R-Y- & K-C-S-, who have taken advantage of the opportunity to seek and

accept South Korean citizenship. Id. We therefore held that the asylum applicants, who

were granted citizenship in South Korea in the late 1990’s, were firmly resettled in that

country and were ineligible for asylum.

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of refugee status, a passport, a travel document, or other evidence indicative

of permanent residence.17

If direct evidence of an offer of firm resettlement is unavailable, indirect

evidence may be used to show that an offer of firm resettlement has been made

if it has a sufficient level of clarity and force to establish that an alien is able

to permanently reside in the country. Indirect evidence may include the

following: the immigration laws or refugee process of the country of proposed

resettlement; the length of the alien’s stay in a third country; the alien’s intent

to settle in the country; family ties and business or property connections; the

extent of social and economic ties developed by the alien in the country; the

receipt of government benefits or assistance, such as assistance for rent, food,

and transportation; and whether the alien had legal rights normally given

to people who have some official status, such as the right to work and enter

and exit the country. See Maharaj v. Gonzales, 450 F.3d at 974; Sall

v. Gonzales, 437 F.3d at 235; Diallo v. Ashcroft, 381 F.3d at 694; Abdille

v. Ashcroft, 242 F.3d at 487; Mussie v. U.S. INS, 172 F.3d at 331-32.

The existence of a legal mechanism in the country by which an alien can

obtain permanent residence may be sufficient to make a prima facie showing

of an offer of firm resettlement. See Elzour v. Ashcroft, 378 F.3d 1143, 1152

(10th Cir. 2004) (observing that “a third country’s offer of permanent

resettlement may consist of providing a defined class of aliens a process

through which they are entitled to claim permanent refuge”).18 Moreover,

a determination of firm resettlement is not contingent on whether the alien

applies for that status. Id. at 1152 (“If an alien who is entitled to permanent

refuge in another country turns his or her back on that country’s offer

by failing to take advantage of its procedures for obtaining relief, he or she

is not generally eligible for asylum in the United States”).

Therefore, Matter of Soleimani, 20 I&N Dec. 99, would be decided

differently if considered under the framework set forth today. The fact that the

alien in that case did not apply for permanent resettlement in Israel through its

Law of Return would not foreclose a firm resettlement determination, because

the Law of Return would be considered as indirect evidence of an offer of firm

resettlement. She would have been found firmly resettled unless she presented

rebuttal evidence to show that she would not have been eligible for or granted

17

Prima facie evidence of an offer of firm resettlement may already be a part of the record

of proceedings as testimony or other documentary evidence.

18

We note that in Matter of D-L- & A-M-, 20 I&N Dec. at 414, the Cuban asylum applicants

who lived and worked in Spain as lawful temporary residents had the option to become

permanent residents of Spain. Under the framework we establish today, the DHS would

have met its burden of making a prima facie showing that an indirect offer of firm

resettlement existed, because the asylum applicants had an opportunity, or “legal

mechanism,” to apply for permanent residence.

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an offer of permanent resettlement or that one of the regulatory exceptions

to firm resettlement applied.

Similarly, evidence that an offer of firm resettlement has been made may

not be rebutted if the alien refused to accept an offer of firm resettlement

or failed to renew permanent residence, which was possible, for example,

through the renewal of a residence permit. See Bonilla v. Mukasey, 539 F.3d

at 81 (observing that when an alien is entitled to maintain the resident status

permanently as long as it is renewed, firm resettlement should bar the alien

from receiving asylum if the renewal of a resident stamp is an administrative

requirement as routine as renewing one’s passport). The regulations only

require that an offer of firm resettlement was available, not that the alien

accepted the offer. See 8 C.F.R. § 1208.15. To hold otherwise would

be contrary to the purpose of the firm resettlement bar, which is to limit

refugee protection to those with nowhere else to turn.

The firm resettlement inquiry ends if the DHS fails to present prima facie

evidence of an offer of firm resettlement or the record does not otherwise

establish the existence of an offer of firm resettlement. See 8 C.F.R.

§ 1240.8(d). The Immigration Judge would then determine whether the alien

has established eligibility for asylum and whether he or she merits relief

as a matter of discretion.

In the second step of our firm resettlement framework, the alien can rebut

the DHS’s prima facie evidence of an offer of firm resettlement by showing

by a preponderance of the evidence that such an offer has not, in fact, been

made or that he or she would not qualify for it. The rebuttal may include

evidence regarding how a law granting permanent residence to an alien

is actually applied and why the alien would not be eligible to remain in the

country in an official status.

In the third step, the Immigration Judge will consider the totality of the

evidence presented by the parties to determine whether an alien has rebutted

the DHS’s evidence of an offer of firm resettlement. If the Immigration Judge

finds that the alien has not rebutted the DHS’s evidence, the Immigration

Judge will find the alien firmly resettled.

In the final step, if the Immigration Judge finds the alien firmly resettled,

the burden then shifts to the alien pursuant to 8 C.F.R. §§ 1208.15(a) and (b)

to establish that an exception to firm resettlement applies by a preponderance

of the evidence. If the alien establishes an exception, the alien can be granted

asylum. If the alien fails to establish an exception, he or she will be subject

to the mandatory bar for asylum.

E. Application of the Firm Resettlement Framework

During proceedings before the Immigration Judge, the DHS offered

evidence that the respondent was assigned an identification number in the

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Senegalese Government’s 1990 registry of foreigners. The DHS also

submitted two documents indicating that the respondent could obtain

permanent status as the spouse of a Senegalese citizen. The first document

was a letter from the Library of Congress regarding “Requirements for

Residency, Acquisition of Citizenship by Marriage or Naturalization” for

Senegal. The second was an Office of Personnel Management (“OPM”)

Investigations Service report entitled “Citizenship Laws of the World.”

According to this document, a foreigner who marries a Senegalese citizen

is granted permanent residence and can apply for citizenship by naturalization.

The respondent submitted a copy of Article 7 of the Nationality Code

of Senegal, updated in December 1989, which addresses the acquisition

of Senegalese nationality through marriage. Article 7 only addresses the

circumstances in which a foreign woman marries a Senegalese man.

The Immigration Judge determined that the respondent was not firmly

resettled in Senegal because he found the evidence insufficient to establish that

the respondent was offered firm resettlement. He found that the respondent’s

receipt of an identification number in the registry of foreigners was insufficient

to constitute an offer of firm resettlement. Although the Library of Congress

letter was admitted into the record, the Immigration Judge did not discuss the

letter’s statements regarding eligibility to acquire Senegalese citizenship

regardless of gender. The Immigration Judge observed that this letter

provided that acquisition of citizenship by marriage is not automatic and that

it is subject to official denial and requires a formal application, police record,

and certificate of good character. He rejected the DHS’s argument that the

respondent’s marriage to a Senegalese citizen gave him immediate Senegalese

citizenship. The Immigration Judge reasoned that the respondent did not apply

for permanent residence in Senegal, and, even if he had, his application for

permanent residence through marriage under Senegalese law could have been

denied.

We disagree with the Immigration Judge’s determination that the

respondent was not firmly resettled because he did not apply for status

in Senegal. The failure to apply for permanent residence where it is available

to an alien does not rebut evidence of firm resettlement. See Elzour

v. Ashcroft, 378 F.3d at 1152 (stating that if an alien fails to take advantage

of procedures for obtaining permanent refuge in another country, he or she

is not generally eligible for asylum).

We find that the DHS’s direct evidence of the assignment

of an identification number to the respondent is insufficient to show

prima facie evidence of an offer of firm resettlement, because it does not

indicate that the assignment of an identification number gives the respondent

any legal rights normally given to citizens or other lawful residents.

However, we find that the indirect evidence presented by the DHS does

rise to a sufficient level of clarity and force to establish a prima facie showing

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of an offer of firm resettlement. The DHS presented two documents

indicating that the respondent could obtain permanent residence as the spouse

of a Senegalese citizen: (1) a Library of Congress letter, which indicates that

a foreigner married to a Senegalese citizen can request Senegalese citizenship

after the celebration of the marriage, and (2) an OPM document, which

indicates that a foreigner who marries a Senegalese citizen is granted

permanent residence and can apply for citizenship by naturalization. Based

on these documents and the undisputed fact that the respondent is married

to a Senegalese citizen, we find that the DHS has made a prima facie showing

of an offer of firm resettlement.

To rebut the prima facie showing by the DHS, the respondent submitted

Article 7 of the Nationality Code of Senegal. Article 7 explicitly provides that

a foreign woman can acquire Senegalese citizenship through marriage

to a Senegalese man, but it does not indicate that a foreign man can acquire

citizenship by marrying a Senegalese woman. The DHS did not present any

evidence that would indicate that this version of the Nationality Code

of Senegal submitted by the respondent is outdated or not the law of Senegal.

The Library of Congress letter, which was submitted by the DHS,

acknowledges that the Nationality Code only pertains to a foreign woman

marrying a Senegalese man. The letter also states that the information posted

on an official website of the Senegalese Government “clearly addresses” both

the marriage of a foreign woman to a Senegalese man and the marriage

of a foreign man to a Senegalese woman. However, a copy and translation

of the Senegalese Government website has not been provided by the DHS, and

the respondent’s attorney asserted that he could not find the website referenced

in the Library of Congress letter.

Similarly, the OPM document regarding citizenship laws submitted by the

DHS does not distinguish between the situations where a foreign man marries

a Senegalese woman and a foreign woman marries a Senegalese man.

Furthermore, the document does not indicate where the OPM obtained this

information.

In light of the conflicting and incomplete evidence in the record, we find

that a remand is necessary for the Immigration Judge to conduct further

fact-finding consistent with the framework set forth above and for the parties

to provide additional evidence, possibly including expert testimony.19 Upon

remand, the Immigration Judge should determine whether the respondent has

rebutted the DHS’s indirect evidence that shows that he could obtain

permanent status as the spouse of a Senegalese citizen.

19

We note that the content of foreign law is a question of fact. See Matter of Annang,

14 I&N Dec. 502, 503 (BIA 1973); see also Abdille v. Ashcroft, 242 F.3d at 490 n.10.

We cannot make findings of fact on appeal. See 8 C.F.R. § 1003.1(d)(3)(i).

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V. CONCLUSION

Based on the foregoing, we will remand the record to the Immigration

Judge. The focus on remand should be on whether Senegal applies its

citizenship law on a gender-discriminatory basis such that only a foreign

woman marrying a Senegalese man can acquire citizenship but not vice versa.

The Immigration Judge should determine, based on the evidence in its totality,

whether the respondent has rebutted the DHS’s prima facie showing that

he was offered firm resettlement in Senegal by a preponderance of the

evidence and, if not, whether one of the regulatory exceptions applies. See

8 C.F.R. §§ 1208.15, 1240.8(d).

ORDER: The record is remanded to the Immigration Judge for further

proceedings consistent with the foregoing opinion and for the entry of a new

decision.

506