Under U.S. immigration law, a foreign national is ineligible for asylum if he or she was firmly resettled in another country before arriving in the United States. Similarly, an applicant seeking admission into the United States as a refugee is barred from admission if he or she is firmly resettled in a third country before arriving in the United States. However, in the case of a refugee, the law is a little more lenient because Congress inserted a requirement that the refugee must have entered a third country as a consequence of flight for the bar to apply. Keep in mind, that the third country is a country other than the foreign national country of nationality or the United States. 

Definitions of Firm Resettlement

Both the refugee and asylum definitions of firm resettlement in the regulations require entry into a third country. As mentioned before, a refugee applicant, however, must have entered the country because of the flight for the bar to apply. The asylum firm resettlement bar does not have this requirement.

Example:

Musa, a citizen of Nigeria, fled Northern Nigeria on April 1, 2020, due to religious persecution. He arrived in Kenya on April 2, 2020. While in Kenya, must get permanent resident status as a result of his marriage to a Kenyan lady. In 2023, Musa and his wife entered the United States on a tourist visa. Musa is thinking of applying for asylum as a result of his past persecution in Nigeria and fear of returning to Nigeria. Musa will be ineligible for asylum because he was firmly resettled in Kenya before arriving in the United States. Musa will still be eligible for admission into the United States as a refugee because he fled Nigeria because of religious persecution. The situation would be different if Musa left Nigeria to study in Kenya and later sought to be admitted into the United States as a refugee.

Keep in mind that both definitions of firm resettlement (asylum and refugee) require that the status offered or received must be permanent, not temporary. Thus, a temporary student status or work visa in a third country will not trigger the firm resettlement bar. However, legal residence in a third country no matter how temporary a negative factor in an asylum application can be. The firm resettlement bar to asylum and refugee admission can be very confusing even to legal scholars. Courts have applied this bar in several different ways and in many cases, courts immigration courts in different jurisdictions across the United States have applied the law differently.

In May 2011, the Board of Immigration Appeals addressed these differences in a precedent decision called Matter of A-G-G-.8 In this decision, the BIA applied a four-step prong for deciding firm resettlement cases that first focuses exclusively on the existence of an offer:

1.       The officer bears the burden of presenting prima facie evidence of an offer of firm resettlement, relying on direct or if direct is not available, indirect evidence.

2.      If there is prima facie evidence, the applicant must be allowed to rebut such evidence.

3.      The officer must weigh the totality of the evidence and decide whether the evidence of an offer of firm resettlement has been rebutted.

4.      If the officer finds the applicant was firmly resettled, the burden shifts to the applicant to establish an exception applies.

In summary, the asylum and refugee firm resettlement bars have three common elements and one main difference. Both require entry into a third country, an offer or receipt of a status, and the status must be permanent. The main difference is that the bar only applies to a refugee applicant if the entry into the third country was a consequence of flight from persecution. In contrast, for an asylum applicant, entry into a third country does not have to be because of flight from persecution. In the asylum context, the firm resettlement bar applies when, after becoming a refugee and before arriving in the United States, the applicant entered a third country with, or while in that country received or was offered permanent immigration status.

Like most U.S. immigration applications, the process of applying for affirmative or defensive asylum can be very complicated and tedious. Most asylum applicants who are not represented by an experienced immigration lawyer get denied. Our experienced immigration attorneys and paralegals have successfully helped numerous foreign nationals apply for asylum in the United States. Contact us at (936) 514-2000 or Email: [email protected], to schedule your consultation.