Mussie v. U.S. I.N.S.

Citation172 F.3d 329
Decision Date09 April 1999
Docket NumberNo. 98-2019,98-2019
PartiesSara MUSSIE, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Diane Elizabeth McHugh-Martinez, Law Office of Mchugh-martinez, Washington, D.C., for Petitioner. Timothy Paul McIlmail, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant Attorney General, Karen Fletcher Torstenson, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Petition denied by published opinion. Judge LUTTIG wrote the opinion, in which Judge DIANA GRIBBON MOTZ and Judge TRAXLER joined.

OPINION

LUTTIG, Circuit Judge:

Sara Mussie petitions for review of the Board of Immigration Appeals' denial of her application for asylum. Because the Board's findings that Mussie had been "firmly resettled" in a third country prior to seeking asylum and that Mussie was not entitled to invoke the exceptions to the "firm resettlement" bar were supported by substantial evidence, we deny the petition for review.

I.

Sara Mussie is a native and citizen of Ethiopia. During the 1970s, Mussie was an active member of the Ethiopia People's Revolutionary Party, an opposition group. As a result of her membership in that group, she was arrested, detained, and questioned on numerous occasions. On one such occasion, she was beaten and raped. In addition, her cousin was killed by members of the Ethiopian military after he was found hiding at her house.

In 1985, Mussie fled Ethiopia, via the Sudan, for Germany. Upon arriving in Germany, she applied for asylum, which she received in 1989. Although it is unclear whether Mussie ever attained permanent resident status in Germany, she was issued German travel documentation. While in Germany, Mussie received government-paid language schooling. She also received government assistance for transportation, rent, and food. She held a job, paid taxes, and rented her own apartment.

During her time in Germany, Mussie claims she was subjected to a number of incidents of racial taunting and threats from neighbors, passers-by, and co-workers. Most notably, she claims that a man wearing neo-Nazi insignia elbowed her to the ground. 1 She further claims that, when she reported the incident to the police, they made a written report but took no further action.

On September 2, 1991, Mussie entered the United States on a six-month tourist visa. After that visa expired, Mussie filed an application for asylum in the United States, which was denied. In 1995, the INS charged Mussie with deportability. Before the immigration judge, Mussie conceded deportability, but applied for asylum and withholding of deportation. On September 5, 1996, the immigration judge denied both parts of the application and entered alternative orders of deportation to Germany and Ethiopia.

Mussie then appealed to the Board of Immigration Appeals, solely on the issue of asylum. 2 On June 19, 1998, the Board dismissed the appeal. The Board found that Mussie had been "firmly resettled" in Germany prior to seeking asylum and that Mussie failed to show that she was entitled to invoke either of the exceptions to the "firm resettlement" bar. From that decision, Mussie petitions for review.

II.

The sole issue presented by Mussie's petition is whether the Board of Immigration Appeals correctly applied the "firm resettlement" bar in affirming the immigration judge's denial of Mussie's application for asylum. Under INS regulations, an alien may not obtain asylum if he has been "firmly resettled" in another country. 8 C.F.R. § 208.13(c)(2)(i)(B) (1998); see also 8 C.F.R. § 208.14(d)(2) (1996) (same). Mussie contends, first, that she had not been "firmly resettled" in Germany because it was unclear whether she had been granted permanent residency there, and second, that she qualifies for the narrow exceptions to the "firm resettlement" bar. We reject both of Mussie's arguments.

First, we conclude that the Board's finding that Mussie had been "firmly resettled" in Germany was supported by substantial evidence.

The relevant INS regulation states that "firm resettlement" occurs when an alien has received "an offer of permanent resident status, citizenship, or some other type of permanent resettlement." 8 C.F.R. § 208.15 (1998). Once the "evidence indicates" that an alien has been "firmly resettled," the alien bears the "burden of proving by a preponderance of the evidence" that he has not been resettled. Id. § 208.13(c)(2)(ii); see also 8 C.F.R. § 208.14(c) (1996) (same).

Although, as the Board noted, the record is silent as to whether Mussie actually received a formal offer of permanent residency in Germany, the INS introduced sufficient "evidence indicating" that Mussie had received at least an offer of "some other type of permanent resettlement" in Germany, thereby meeting its evidentiary burden. As noted above, Mussie was granted asylum in Germany and was issued German travel documentation. 3 In addition, she lived in Germany for six years, during which time she received government assistance for language schooling,...

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