SOLEIMANI

Interim Decision #3118

MATTER OF SOLEIMANI

In Deportation Proceedings

A-26157647

Decided by Board July 13, 1989

(1) A finding that an alien was firmly resettled in another country does not render him

ineligible for a grant of asylum under section 208 of the Immigration and Nationality

Act, 8 U.S.C. § 1158 (1982), by an immigration judge or the Board of Immigration

Appeals. Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971), distinguished. Matter of

Portates, 18 I&N Dec. 239 (BIA 1982); and Matter of Lain, 18 I&N Dec. 15 (BIA

1981), modified.

(2) The Board and immigration judges are not bound by the provisions of 8 C.F.R.

§ 208.8(1)(1)(ii) (1988), which precludes district directors of the Immigration and

Naturalization Service from granting asylum under section 208 of the Act to aliens

who are firmly resettled in a third country.

(3) An alien's firm resettlement in another country is a factor to be evaluated in

determining whether asylum should be granted as a matter of discretion under the

standards set forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

(4) A' finding that an alien has been firmly resettled in a third country would normally

preclude a grant of asylum as a matter of discretion, unless the alien can demonstrate

countervailing equities in his favor that are compelling in nature.

(5) Whether or not an outstanding offer of permanent residence or citizenship to all Jews

who arrive in Israel constitutes a specific offer of permanent resettlement to the

respondent, the pertinent regulations and the Board's prior decisions cannot be read

so restrictively that the respondent's circumstances in Israel become irrelevant.

(6) An alien will not be found to be firmly resettled elsewhere if it is shown that his

physical presence in the United States is a consequence of his flight in search of refuge,

and that his physical presence is reasonably proximate to the flight and not one

following a flight remote in point of time or interrupted by an intervening residence in

a third country reasonably constituting a termination of the original flight in search of

refuge.

(7) The question of firm resettlement is not always limited solely to the inquiry of how

much time has elapsed between the alien's flight and the asylum application, where

other factors germane to the question of whether the alien has firmly resettled include

family ties, intent, business or property connections, and other matters.

(8) A determination that the respondent was not firmly resettled in Israel does not end

the Board's inquiry as to whether the respondent should be granted asylum as a matter

of discretion, where the respondent did have some ties to Israel, and such ties are a

factor to be evaluated in the exercise of discretion.

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Interim Decision #3118

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)]—Nonimmigrant—remained

longer than permitted

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Janet A. Savrin, Esquire Louise Cavanaugh

450 Seventh Avenue, Suite 1604 General Attorney

New York, New York 10123

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members

In a decision dated September 5, 1985, an immigration judge found

the respondent deportable as charged under section 241(a)(2) of the

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), as a

nonimmigrant who had remained in the United States longer than

permitted.' He also denied her application for asylum under section

208(a) of the Act, 8 U.S.C. § 1158(a) (1982), on the basis of firm

resettlement in Israel but granted her application for withholding of

deportation to Iran under section 243(h) of the Act, 8 U.S.C.

§ 1253(h) (1982). He further granted her request for voluntary

departure under section 244(e) of the Act. 8 U.S.C. § 1254(e) (1982). 2

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sustained, and the application for asylum will be granted.

The respondent is a 34—year-old native and citizen of Iran. Evidence

included in the record establishes that she is Jewish. In various

At her deportation hearing, the respondent admitted the factual allegations

contained in the Order to Show Cause and Notice of Hearing (Form 1 221) and

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conceded her deportability as charged. The Board finds that her deportability has been

established by clear, unequivocal, and convincing evidence, as required by Woodby v.

INS, 385 U.S. 276 (1966), and S § 242.14(a) (1988).

2 1n his decision, the immigration judge ordered the respondent deported to Iran if she

failed to depart voluntarily within the time specified and alternatively ordered her

deported to Israel if Iran was unwilling to accept her. The immigration judge also

ordered that the application for withholding of deportation to Iran be granted if the

Immigration and Naturalisation Service attempted to deport her to Iran. On anneal, the

respondent contends that granting her application for withholding of deportation to

Iran, but ordering her deported to Iran if she failed to depart voluntarily, was

inconsistent and incorrect. The Board agrees. If the asylum application is denied, but the

application for withholding of deportation is granted, the immigration judge should

order deportation, contingent upon noncompliance with the grant of voluntary

departure, to the country of firm resettlement, in this case Israel, or another designated

country for which the order of withholding of deportation does not apply, and order

withholding of deportation to the persecuting country, in this case Iran, if the country of

firm resettlement or other designated country refuses to accept the respondent. In view

of our decision on the asylum application, the Board need not modify the deportation

order in this regard.

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Interim Decision #3118

affidavits and statements, as well as her testimony at her deportation

hearing, she related that she fled Iran on October 23, 1981, with her

mother and brother, traveling over the mountains to Pakistan without

a visa, where they later obtained a visa to remain in. Pakistan

temporarily until November 4, 1981. According to the respondent,

after staying 5 days in Pakistan, she and her family flew to Athens,

Greece, without visas and, being unsuccessful in obtaining visas there,

subsequently flew to Rome, Italy, again without visas. From there,

after 2 or 3 days, they few to Israel without visas in November 1981,

where she remained until September 15, 1982. The record also

includes the respondent's Iranian passport but does not document the

type of visa or status the respondent had during her stay in Israel.

According to the respondent, she obtained a visa as a visitor for

pleasure while in Israel, initially intending to remain with her family in

Israel only until the situation in Iran improved. In her affidavits,

statements, and hearing testimony, she related that she never worked

or owned property in Israel and was never directly offered Israeli

citizenship, permanent resettlement, or resident status in Israel. She

also reported that she had developed pneumonia during her travels

and was sick and under a physician's care for 6 months of her stay in

Israel. The respondent was hospitalized there due to her illness. She

reportedly lived with her grandmother while in Israel, apparently

paying rent. Observing that she had visited Israel seven different times

in the past, she related that she had gone to school to study Hebrew

during her last stay in Israel but had never received any financial

assistance for any reason from the Israeli Government, as she had

relied on her brothers and her own funds for support.

While in Israel, the respondent was issued a nonimmigrant visitor

for pleasure visa by the American consulate on June 10, 1982, with

which she entered the United States on September 16, 1982, with her

Iranian passport. She was authorized to remain until December 16,

1982, and on November 22, 1982, applied for asylum with the district

director. The district director denied the application on November 1,

1984. Deportation proceedings were instituted on March 1, 1985.

The respondent has reported that she initially obtained the nonim-

migrant visitor's visa and came to the United States in order to attend

a family wedding and to visit her three brothers. According to the

respondent, she remained in the United States for several months

visiting family and friends and then filed her application for asylum, as

she was still unable to return safely to Iran and had no other home. She

observed that she had not expected the regime in Iran to remain in

power as long as it had and, for this reason, had also not sought asylum

in Israel previously. The respondent related that her three brothers, her

mother, her sister, and a nephew were in the United States, and that

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her only remaining family in Israel was her grandmother. According to

the respondent's asylum application, one brother was a student, while

her other brothers, as well as her mother and sister, were also asylum

applicants.

In conjunction with the respondent's initial asylum application, the .

district director requested and obtained an advisory opinion from the

United States Department of State's Bureau of Human Rights and

Humanitarian Affairs ("BHRHA"). In the advisory opinion, dated

October 26, 1984, the BHRHA expressed its view that the respondent,

if a member of the Jewish faith, had a well-founded fear of persecution

if returned to Iran. However, it also concluded that in view of Israel's

Law of Return, which entitled the respondent as a member of the

Jewish faith to reside permanently and enjoy the rights of citizenship

in Israel, it was probable that she was offered resident status,

citizenship, or some other type of permanent resettlement. It appeared

to the BHRHA that the respondent had become firmly resettled in

Israel and was therefore ineligible for asylum pursuant to 8 C.F.R.

§ 208.8(f)(1)(ii) (1984).

Following the deportation hearing, the immigration judge conclud-

ed in his decision that the respondent, as an Iranian Jew, would be

persecuted if returned to her native country, and he accordingly

granted her application for withholding of deportation to Iran.

However, he also denied her asylum application, concluding that she

was ineligible due to her firm resettlement in Israel, in that she could

have become a resident of Israel and by her own choosing decided not

to do so. The respondent contends on appeal that she had not become

firmly resettled in Israel.

The respondent bears the evidentiary burden of proof and persua-

sion in any application for asylum under section 208 of the Act. Matter

of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds,

Matter ofMogharrabi, 19 I&N Dec. 439 (BIA 1987); 8 C.F.R. § 208.5

(1988). In order to establish eligibility for a grant of asylum, an alien

must demonstrate that she is a "refugee" within the meaning of section

101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). That

definition includes the requirement that an alien demonstrate that she

is unwilling or unable to return to her 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." In the case at hand, the immigration judge concluded that

the respondent had sufficiently demonstrated that she would be

persecuted on the basis of her Jewish religion if returned to Iran, and

he accordingly granted her application for withholding of deportation

to that country. The Service has not appealed that decision. As the

respondent has satisfied the higher burden of proof required for

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withholding of deportation, it follows that she has satisfied the lesser

"well-founded fear" standard of proof required for asylum. See INS v.

Cardoza-Fonseca, 480 U.S. 421 (1987).

Having established a well-founded fear of persecution on account of

religion if returned to Iran, the respondent thus demonstrated that she

was a "refugee" within the meaning of section 101(a)(42)(A) of the Act

and established her statutory eligibility for asylum under section 208.

A finding that the respondent was firmly resettled in another country,

namely Israel, does not render her ineligible for a grant of asylum

under section 208 by the immigration judge or this Board. Rather,

firm resettlement is a factor to be evaluated in determining whether

asylum should be granted as a matter of discretion under the standards

set forth in Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

The immigration judge's conclusion to the contrary most likely

stemmed from a reading of language used by the Board in Matter of

Lam, 18 I&N Dec. 15 (BIA 1981), and Matter ofPortales, 18 I&N Dec.

239 (BIA 1982). In the former decision, distinguishing withholding of

deportation from asylum, the Board stated that "[a]sylum will not

even be granted, however, where the alien has been firmly resettled in

a third place." Matter of Lam, supra, at 18. In the latter decision, the

Board relied on Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971),

concluding "that the applicants, prior to their arrival in the United

States, were firmly resettled in Peru and that they are not entitled to

classification as refugees." Matter of Portales, supra, at 242. However,

these statements, to the effect that an alien's firm resettlement in a

third country renders the alien ineligible for asylum, were dicta.

Noting in Matter of Lam, supra, that the immigration judge had

granted the alien withholding of deportation to the People's Republic

of China but had not set forth his reasons for denying asylum, the

Board remanded the record for an evidentiary hearing on the question

of firm resettlement. It was therefore not necessary for the Board to

determine at that juncture whether firm resettlement acts as a bar to

eligibility for asylum, as opposed to one factor to be evaluated in the

exercise of discretion. In Matter of Portales, supra, prior to finding that

the applicants had firmly resettled in a third country, the Board held

that the applicants had not demonstrated a clear probability or a well-

founded fear of persecution if returned to Cuba, which in itself

rendered the applicants ineligible for asylum. Thus, the Board's

finding of firm resettlement was unnecessary to the holding that the

applicants were not eligible for relief. The Board hereby withdraws

from the above-cited cases to the extent that they state that an alien

found to have been firmly resettled in a third country is rendered

ineligible for a grant of asylum under section 208 of the Act by the

immigration judge or this Board.

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Section 208(a) of the Act states that an alien physically present in

the United States or at a land border may be granted asylum in the

discretion of the Attorney General if it is determined that the alien is a

"refugee" -within the meaning of section 101(a)(42)(A). Section

101(a)(42)(A) provides:

The Man "refugee" means (A) any person who is outside any country of such

person's nationality or, in the case of a person having no nationality, is outside any

country in which such person last habitually resided, and who is unable or unwilling

to return to, and is unable or unwilling to 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.

There is no reference to firm resettlement in section 208 of the Act,

and it is not part of the definition of a "refugee" in section

101(a)(42)(A). Aliens outside of the United States may not be admitted

as refugees under section 207(c)(1) of the Act, 8 U.S.C. § 1157(c)(1)

(1982), if they are firmly resettled in a third country, but this

preclusion is limited to admission of refugees outside the United

States under the procedures established by section 207, and it is not

incorporated by statute in the asylum procedures of section 208. By

regulation, a district director is precluded from granting asylum under

section 208 to aliens who are firmly resettled in a third country. 8

C.F.R. § 208.8(f)(1)(ii) (1988). However, this regulatory bar applicable

to a district director does not prohibit an immigration judge or the

Board from granting asylum to an alien deemed to have been firmly

resettled. See Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988).

In the absence of any reference to firm resettlement in section 208

of the Act or in the definition of a "refugee" under section

101(a)(42)(A), and in the absence of any regulatory bar, we conclude

that an alien is not precluded from being granted asylum by an

immigration judge or the Board based on a finding of firm resettle-

ment in a third country. A review of the legislative history of the

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, does not

establish that Congress intended firm resettlement to act as a bar to a

grant of asylum by an immigration judge or the Board. The Supreme

Court's decision in Rosenberg v. Yee Chien Woo, supra, also does not

require a conclusion to the contrary. The Court, interpreting section

203(a)(7) of the Act (repealed by section 203(c)(3) of the Refugee Act

of 1980), held that although the statute failed to mention the "firm

resettlement" concept, it was one of the factors which the Immigration

and Naturalization Service must take into account in determining

whether a refugee seeks asylum in the United States as a consequence

of his flight to avoid persecution, as required for a grant of asylum.

The Court reasoned that although the statute did not specifically

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mention firm resettlement, while it had been expressly stated in

predecessor statutes, Congress had added a new requirement that the

alien must have "fled" to avoid persecution, noting that both terms

were closely related to the "central theme of all 23 years of refugee

legislation — the creation of a haven for the world's homeless people."

Id. at 55.

However, neither section 208 of the Act nor the current definition

of a "refugee" under section 10I(a)(42)(A) refers to the concept of

either firm resettlement or flight. Moreover, Congress expressly

provided in section 207 of the Act that aliens outside of the United

States could not be admitted to this country as refugees if firmly

resettled in another foreign country, but it chose not to incorporate

any such language into sections 101(a)(42)(A) or 208. Where Congress

includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or exclu-

sion. INS v. Cardoza-Fonseca, supra; Russello v. United States, 464

U.S. 16 (1983). Congress' intent that firm resettlement should not

preclude a finding that an alien is a refugee within section

101(a)(42)(A) can also be gleaned from section 209(b)(1) of the Act, 8

U.S.C. § I159(b)(1) (1982). That section requires that in order for an

alien granted asylum to be adjusted to the status of a lawful permanent

resident, the alien must not only continue to be a refugee within the

meaning of section 101(a)(42)(A) but also must not be firmly resettled

in any foreign country. It is clear that Congress viewed the concept of

firm resettlement as separate and apart from the definition of a

refugee. It is apparent from a reading of the applicable statutes that

Congress intended for an alien still outside of the United States to be

precluded from admission to this country as a refugee if he has firmly

resettled in a third country, but that once within the United States or

at its borders, the alien's resettlement elsewhere should only be

considered as a factor in the evaluation of his asylum claim as a matter

of discretion.

Turning to the discretionary aspects of the respondent's asylum

claim, a finding that an alien has been firmly resettled in a third

country would normally preclude a grant of asylum as a matter of

discretion, unless the alien can demonstrate countervailing equities in

his favor that are compelling in nature. An alien is deemed to be

"firmly resettled" if he has been offered permanent resettlement by

another country as a consequence of his flight from persecution, unless

it is established that the conditions of his residence in that country

have been substantially and consciously restricted by the authorities of

that country. 8 C.F.R. § 208.14 (1988); Matter of Portales, supra;

Matter of Lam, supra.

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Interim Decision #3118

In the case at hand, the immigration judge concluded that the

respondent had been "offered" permanent resettlement under Israel's

Law of Return, and that her choosing not to become a resident did not

obviate the fact of her firm resettlement. However, there is nothing in

the record, beyond the BHRHA.'s perfunctory reference to its exis-

tence, documenting the nature and purpose of Israel's Law of Return

or the specific provisions of that law. Absent any such documentation,

the Board cannot find that the respondent had been offered permanent

resettlement in Israel within the meaning of the firm resettlement

concept. There exists no evidence that the respondent would be

eligible for an offer of resettlement under any such law and no

evidence regarding the extent of any restrictions or conditions that

may be placed on offers of resettlement under that law. Foreign law is

a matter to be proven by the party seeking to rely on it, and the

Immigration and Naturalization Service has submitted nothing of

record regarding Israel's Law of Return. See Matter of Annang, 14 I&N

Dec. 502 (BIA 1973).

Moreover, whether or not an outstanding offer of permanent

residence or citizenship to all Jews who arrive in Israel constitutes a

specific offer of permanent resettlement to the respondent herself, the

pertinent regulations and the Board's prior decisions cannot be read so

restrictively that the respondent's circumstances in Israel become

irrelevant. An alien will not be found to be firmly resettled elsewhere if

it is shown that his physical presence in the United States is a

consequence of his flight in search of refuge, and that his physical

presence is reasonably proximate to the flight and not one following a

flight remote in point of time or interrupted by an intervening

residence in a third country reasonably constituting a termination of

the original flight in search of refuge. See Rosenberg v. Yee Chien Woo,

supra. The question of resettlement is not always limited solely to the

inquiry of how much time has elapsed between the alien's flight and

the asylum application. Other factors germane to the question of

whether the alien has firmly resettled include family ties, intent,

business or property connections, and other matters. Chinese Am.

Civic Council v. Atty. Gen. of United States, 566 F.2d 321 (D.C. Cir.

1977); see also Kai Fung Chan v. Kiley, 454 F. Supp. 34 (S.D.N.Y.

1978); Chi-Wai Lui v. Pilliod, 358 F. Supp. 542 (N.D. Ill. 1973);

Matter of Moy, 12 I&N Dec. 121 (Comm. 1967); Matter of Chai, 12

I&N Dec. 81 (Comm. 1967).

As a preliminary matter, the Board concludes that, at the time the

respondent first arrived in Israel in November 1981, she was then

fleeing persecution, having escaped Iran by fleeing over the mountains

into Pakistan. The respondent herself has stated that she and her

family had left Iran due to the political situation there. The fact that

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Interim Decision #3118

she may have had some hope that circumstances there would improve

so as to allow her to return does not change the fact that she had fled

on account of persecution or a fear of persecution.

However, the record demonstrates that her intervening residence in

Israel before applying for asylum in the United States did not

reasonably constitute a termination of her original flight in search of

refuge. Her later physical presence in the United States remained

reasonably proximate to her flight. In this regard, the Board points out

that the respondent took no active steps demonstrating that she had

firmly resettled in Israel or had an intent to do so. She remained there

only 10 months, and during this time lived with her grandmother,

recuperating from her illness and attending school in order to study

Hebrew. Her attending school in itself does not demonstrate firm

resettlement. See Matter of Chat, supra. Additionally, she neither

worked nor sought employment in Israel. She did not seek any

financial or other benefits from the Israeli authorities. The respondent

has also testified, and the Service has not contested, that she only

received a nonimmigrant visitor's visa in Israel and never sought a

more permanent status or the benefits accruing from a more perma-

nent status during her stay in Israel. Although she does have

permanent family in that country, this consists solely of her grand-

mother, while the remainder of her family lives in the United States.

Given these circumstances, the Board concludes that the respondent

had not firmly resettled in Israel or any other country prior to her

application for asylum in the United States.

The determination that the respondent was not firmly resettled in

Israel does not end the Board's inquiry as to whether she should be

granted asylum in the exercise of discretion. As noted above, the

record shows that the respondent did have some ties to Israel, and

even if they were not sufficient to demonstrate firm resettlement, such

ties are a factor to be evaluated in the exercise of discretion. Among

the factors which should be considered are: whether she passed

through any other countries or arrived in the United States directly

from her country; whether orderly refugee procedures were in fact

available to help her in any country she passed through, and whether

she made any attempts to seek asylum before coming to the United

States; the length of time she remained in the third country and her

living conditions, safety, and potential for long term residency there;

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whether she has relatives legally in the United States or other personal

ties to this country which motivated her to seek asylum here rather

than elsewhere; and the extent of her ties to any other countries where

she does not fear persecution. Matter of Pula, supra.

Moreover, if the respondent engaged in fraud to circumvent orderly

refugee procedures, the seriousness of the fraud should be considered.

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Interim Decision #3118

Id. Finally, other relevant factors include general humanitarian

considerations such as an alien's tender age or poor health, and

whether the alien has established statutory eligibility for asylum but

cannot meet the high burden required for withholding of deportation.

Id. The evaluation should be made by considering the entire context of

the case, and in the absence of adverse factors, asylum should be

granted in the exercise of discretion.

Under the balancing analysis set forth in Matter of Pula, supra, the

Board finds that a grant of asylum is warranted as a matter of

discretion. Although the respondent does have some ties to Israel, her

only remaining relative in Israel is her grandmother, while the rest of

her family resides in the United States, most of whom were also

asylum applicants at the time of the deportation proceedings. As noted

above, the respondent neither worked nor sought employment in Israel

and essentially spent her 10 months there recuperating from pneumo-

nia and attending language courses. All during this time she had only a

nonimmigrant status in Israel. Additionally, the respondent arrived in

the United States by legal means through a nonimmigrant visa and

applied for asylum while she was still in a legal status in this country.

There is no showing in the record that the respondent had a

preconceived intent to apply for asylum in this country before coming

to the United States so as to circumvent orderly refugee procedures.

Her ties to Israel alone should not preclude a grant of asylum as a

matter of discretion. They should be balanced with the remaining

factors which include the facts that her ties to Israel are somewhat

limited, that she came to this country by legal means and applied for

asylum while in a legal status here, that there is no evidence that she

engaged in fraud in order to circumvent orderly refugee procedures,

and that there are no other factors adverse to the respondent in the

record.

Accordingly, the asylum application will be granted in the exercise

of discretion.

ORDER: The appeal is sustained.

FURTHER ORDER: The application for asylum is granted.

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