The News From the Courts column is written by Maria Bjornerud, an immigration attorney with an office in Southaven , MS .  Originally from Russia , Ms. Bjornerud is licensed to practice law in Tennessee and Mississippi .  She can be contacted via email at mbjorne@msn.com.

TANDIA v. GONZALES, Docket No. 03-4942, 2006 U.S. App. LEXIS 2907 (2nd Cir. 2006) held that "safe third country" or "safe haven" standard did not apply to decisions made on or after January 5, 2001 ; on or after January 5, 2001 , an IJ should evaluate an alien’s stay in third countries under “firm resettlement” standard; the IJ’s finding that Petitioner’s testimony was not credible was not supported by substantial evidence.

JUDGES: WINTER, CABRANES, PARKER:   

Petitioner, a national of Mauritania , asserted that he suffered persecution on the basis of race at the hands of the "white Moor" regime governing the country. Petitioner fled to France , where he visited his sister to acquire more money for his journey, and in about a month, traveled to the United States . Petitioner stated that he feared future persecution upon his return to Mauritania because authorities there continued to search for him. As the alternative basis for his fear, he claimed to participate in a United States-based group, the African Liberation Forces of Mauritania (FLAM) that opposes the current government.

The IJ found that the Petitioner’s testimony lacked credibility and concluded that, while "white Moors" had persecuted some of their "black African" countrymen, Petitioner failed to establish either that he personally was persecuted or that he had a well-founded fear of persecution upon return. The primary reasons the IJ articulated in support of her adverse credibility finding were (1) that Petitioner could not remember whether certain statements he made before the IJ contradicted statements he had made at his asylum interview and (2) that he failed to offer certain evidence to bolster his claims, such as offering his sister as a witness or documentation of his activities with FLAM in the United States. The IJ also added that, even if Petitioner's testimony were credible, she would exercise her discretion to deny him asylum because (1) he committed some low-level crimes while in the United States and (2) he found a "safe haven" in France before arriving the United States .

Petitioner sought review of the BIA order affirming without opinion an IJ’s decision to deny Petitioner's requests for asylum and withholding of deportation based on the finding (1) that Petitioner did not demonstrate past persecution or a well-founded fear of future persecution and (2) that Petitioner found a "safe haven" in France before arriving in the United States, giving the IJ the discretionary authority to deny Petitioner's asylum application even if he had demonstrated persecution.

The court examined the IJ's finding that Petitioner found a "safe haven" in France . The court found that the IJ's decision was dated January 8, 2001 , three days after the repeal of the regulation giving IJs discretion to deny asylum to applicants staying in a "safe third country" before arrival in the United States . 8 C.F.R. § 208.13(d). See Asylum Procedures, 65 Fed. Reg. 76121 , 76126 ( Dec. 6, 2000 ) (effective date of January 5, 2001 ). The court held that an IJ finding concerning a "safe third country" or "safe haven" cannot rely upon 8 C.F.R. § 208.13(d) if contained in a decision dated on or after January 5, 2001 . In such cases, sojourns in third countries will be evaluated under the standards governing the review of an IJ’s decision based upon a finding that an applicant was "firmly resettled" in a third country before arriving in the United States . See 8 C.F.R. § 208.15 (defining aliens who have "firmly resettled"); 8 U.S.C. § 1158(b)(2)(a)(vii) (barring such aliens from receiving asylum).

Petitioner's stay in France would be relevant only to a finding that he had "firmly resettled" in a third country before arriving in the United States . The court concluded that because the IJ explicitly found that Petitioner was not firmly resettled, Petitioner’s stay in France could not support a denial of his asylum claim.

The court also reviewed Petitioner’s asylum claim. The court held that the IJ’s finding that Petitioner did not suffer or fear persecution was not supported by "substantial evidence."  The court noted that no transcript of the asylum interview about which the IJ questioned Petitioner was in the record, and therefore was not available to the court on review. The court concluded that the IJ's reliance upon that testimony to find Petitioner not credible involved impermissible speculation and conjecture. Petitioner's inability to remember whether he made certain statements to the asylum officer did not allow an inference that he made such statements.

The court granted the petition for review, vacated the BIA order and remanded to the BIA for further proceedings.

SALL v. GONZALES, No. 03-4840, 2006 U.S. App. LEXIS 2682 (2nd Cir. 2006) held that “firm resettlement” under 8 C.F.R. § 208.15 should be determined under the totality of circumstances and a formal offer of resettlement was only one of the factors to be considered; mere passage of time standing alone was not conclusive on the issue of firm resettlement; vacated the BIA order and remanded for further proceedings.

JUDGES: WINTER, CABRANES, PARKER:

Petitioner, a native and citizen of Mauritania, asserted that he had been persecuted on account of his race by "white Moors" running the country. Petitioner testified that "white Moor" soldiers came to his home, briefly imprisoned Petitioner and then forced him at gunpoint to cross into Senegal because he was black and therefore undesirable. In Senegal he was met by Red Cross workers and placed into refugee camp where he stayed for four-and-one-half years. Dissatisfied with conditions at the camp, he went to Dakar where he helped unload and carry goods for tips. After nine months in Dakar, he paid someone to transport him to the United States, where he arrived in March 1995 and entered without inspection.

At removal proceeding, Petitioner conceded deportability and applied for asylum, withholding of removal, and, in the alternative, voluntary departure. The IJ first found that Petitioner was ineligible for asylum because he had been "firmly resettled" in Senegal before applying for asylum in the United States based on findings that Petitioner had lived in Senegal for about five years "and was clearly under no impediments to work or to travel within the country." In the alternative, the IJ found that Petitioner had not demonstrated a well-founded fear of persecution and therefore did not meet the definition of a "refugee," based on his findings that the Red Cross letter introduce by Petitioner into evidence had "limited probative value," due to the fact that it was signed by a Senegal Red Cross official in Saint-Louis, a Senegal city purportedly "not in a region in which the refugee camp is located.” The IJ could not verify legitimacy of the letter from Petitioner’s mother. The IJ denied Petitioner's application for asylum and withholding of deportation. The BIA affirmed without opinion.

The court determined that under 8 C.F.R. § 208.15, an alien was “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. The court concluded that the plain language of the regulation supported the application of the "totality of circumstances" test to determine whether “firm resettlement” took place. While a formal offer of resettlement is one of the factors, it is not conclusive. The court pointed out that underlying purpose of asylum regulations was to reserve the grant of asylum for those applicants without alternative places of refuge abroad, regardless of whether a formal "offer" of permanent settlement has been received. 8 U.S.C. § 1158(a)(2)(A).

The court held that the IJ's determination that Petitioner had been "firmly resettled" in Senegal was not supported by substantial evidence. Additionally, the court found that the IJ had misstated the burden of proof. While an "applicant has the burden of proving, by a preponderance of the evidence," that he has not been firmly resettled, the initial burden to establish prima facie case of resettlement rests with the government. 

The Court held that mere passage of four years, standing alone, did not constitute firm resettlement. The court instructed the IJ to consider the totality of the circumstances on remand, including whether Petitioner intended to settle in Senegal when he arrived there, whether he had family ties there, whether he had business or property connections that would connote permanence, and whether he enjoyed the legal rights that permanently settled persons could expect to have.

The court determined that Petitioner’s testimony was consistent with the legitimacy of the Red Cross letter because the discrepancy in the location of the refugee camp was easily explained by the fact that the Senegal regions were re-named in 1984.

The court vacated the BIA order and remanded so that IJ may consider whether Petitioner qualified for asylum now that the Red Cross letter was determined to be legitimate.