Abdille v. Ashcroft

• Decision Date: 18 December 2000
• Docket Number: No. 00-1659,00-1659
• Citation: 242 F.3d 477
• Parties: (3rd Cir. 2001) MOHAMED ABDILLE, PETITIONER v. JOHN ASHCROFT, <A HREF="#fr1-*" name="fn1-*">* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 477

242 F.3d 477 (3rd Cir. 2001)

MOHAMED ABDILLE, PETITIONER v. JOHN ASHCROFT,^* ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT

No. 00-1659

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: December 18, 2000

Filed March 7, 2001

On Petition for Review of an Order of the Board of Immigration Appeals

[Copyrighted Material Omitted]

Olga Narymsky, Esquire (argued) Hebrew Immigrant Aid Society 333 Seventh Avenue New York, NY 10001, Amy Gottlieb, Esquire American Friends Service Committee 972 Broad Street, 6th Floor Newark, NJ 07102, Counsel for Petitioner

David W. Ogden, Esquire Assistant Attorney General Richard M. Evans, Esquire Assistant Director Paul Fiorino, Esquire (argued) Michael P. Lindemann, Esquire Alison M. Igoe, Esquire United States Department of Justice Office of Immigration Litigation P.O. Box 878, Ben Franklin Station Washington, DC 20044, Counsel for Respondent

Before: Becker, Chief Judge, Nygaard and Fuentes, Circuit Judges.

OPINION OF THE COURT

Becker, Chief Judge.

Mohamed Jama Abdille, a Somali native, petitions for a review of a Board of Immigration Appeals (BIA or Board) decision that: (1) denied him asylum from Somalia on the ground that he had firmly resettled in South Africa; and (2) denied him asylum from South Africa on the ground that he failed to establish past persecution or a well-founded fear of persecution in that country. Abdille's Petition for Review requires us to interpret for the first time the meaning of the "firm resettlement" bar to asylum now codified in the Immigration and Nationality Act (INA), and further defined in § 208.15 of Title 8 of the Code of Federal Regulations. This statutory bar, as fleshed out in the applicable immigration regulations, precludes the Attorney General from granting asylum to an applicant when the Attorney General finds that the applicant had firmly resettled in a third country prior to his arrival in the United States.

We conclude that the plain language of § 208.15 makes clear that the prime factor in the firm resettlement inquiry is the existence of an offer of permanent resident status, citizenship, or some other type of permanent resettlement. While recognizing that factors other than the issuance of such an offer may prove relevant to the firm resettlement question, we reject an alternative "totality of the alien's circumstances" approach that would have us consider the existence of an offer as simply one component of a broader firm resettlement inquiry according equal weight to such non-offer-based factors as the alien's length of stay in a third country, the economic and social ties that the alien develops in that country, and the alien's intent to make that country his permanent home.

In light of this conclusion, we find that the BIA's discussion of Abdille's firm resettlement in South Africa is inadequate with regard to whether Abdille received an offer of some type of permanent resettlement, and that proper resolution of the firm resettlement issue requires additional information concerning the content of South African immigration law and practice. Because of the limited nature of the record before us on appeal, and because of the considerable deference we owe to the Immigration and Naturalization Service (INS) when it makes factual determinations (and the content of foreign law is a matter for fact finding), we will grant the Petition for Review and remand the case to the BIA for: (1) further investigation into the content of South African immigration law and practice; and (2) appropriate resolution of the question whether Abdille received an offer of some type of permanent resettlement from the South African government.

One critical element in the resolution of the firm resettlement question is the determination of whether Abdille or the government will bear the burden of establishing the content of South African law, an issue on which the parties disagree. To give guidance to the BIA and to expedite the resolution of this matter, thereby avoiding another Petition for Review, we address this issue and opine that the INS, as the party initially seeking to rely on foreign law, will carry the initial burden, but that once the INS introduces evidence sufficient to indicate that the firm resettlement bar will apply, the burden of proving relevant provisions of South African law will shift to Abdille. Finally, we hold that the BIA's conclusion that Abdille failed to make the requisite showing of past persecution or a well-founded fear of persecution necessary for eligibility for asylum from South Africa must stand.

I. Facts and Procedural History¹

Abdille was born in Somalia in 1967, and was orphaned at an extremely early age. He never learned the identity of his parents and hence could not trace his clan lineage. According to an affidavit submitted by Said S. Samatar, Professor of African History at Rutgers University, clan lineage is a central feature of social and political life in Somalia, and an individual's inability to identify himself with a particular clan can be a substantial, perhaps life-threatening, impediment. Such dangers were exacerbated by the fall of General Siyaad Barre in 1991, after which central government in Somalia collapsed, and militias, splintered along clan lines, filled the power vacuum. Clanlessness is rare in Somalia, and an individual who is unable to trace his lineage, such as Abdille, is often suspected of hiding his true affiliation and presumed to be a member of a rival clan.

Prior to General Barre's fall, Abdille led an apparently ordinary and undisturbed existence in Somalia, employed as an electrician for Somali National Power in the city of Mogadishu. After 1991, however, events took a dramatic turn for the worse: Abdille lost his job, and his lack of clan identity led to repeated confrontations, detentions, and physical assaults at the hands of suspicious militia members.² Ultimately, in March 1998, Abdille fled Somalia in a small boat, arrived in Mozambique, and then traveled on foot to South Africa, entering the latter country in April 1998. We do not believe it necessary here to canvass the events in Somalia in a more extensive fashion, as the parties do not dispute that Abdille satisfied his burden in establishing past persecution or a well-founded fear of persecution in Somalia, and that, absent application of the firm resettlement bar, Abdille would be eligible for asylum from that country. Abdille's Petition for Review focuses our attention on the events that transpired in South Africa.

The South African government, acting pursuant to its Aliens Control Act of 1991, granted asylum to Abdille on or around June 25, 1998. Abdille's asylum documents show that such status had a duration of two years, commencing on June 25, 1998 and expiring on June 24, 2000. According to a letter from South Africa's Department of Home Affairs to Abdille, at the end of that two-year period Abdille would have to contact the Department for a "reviewal of [his] refugee status or to otherwise legalise [his] continued stay in" South Africa; otherwise, Abdille would be in the country illegally, and therefore would be subject to potential prosecution under the Aliens Control Act. Abdille was also issued a South African passport, which he eventually used to enter the United States, and a travel document allowing him re-entry into South Africa.

Abdille lived in Cape Town, South Africa, from April 1998 through January 1999, in a rented group home he shared with fourteen other Somali natives. Unable to obtain the necessary certification to pursue his previous career as an electrician, Abdille worked as a street vendor selling cigarettes, candy, and other miscellaneous items. While working as a street vendor, Abdille suffered two separate attacks by two different groups of South Africans. First, in July 1998, as he was selling his merchandise in a public market, Abdille was approached by a group of five or six young South African men. The men hit Abdille, knocking him unconscious with a blow to the back of the head, and stole his merchandise. Abdille suffered facial injuries and lost several teeth. The other vendors in the market did not intervene. Following the attack, Abdille reported the incident to the police. Abdille told the officers that he could identify the assailants, but he testified in proceedings before the Immigration Judge (IJ) that the police did nothing in response except inform him that he should return to the station at a later time.

The second incident occurred five months later, in December 1998, when a separate group of men attacked Abdille as he was selling his wares in a different market. The men stole all of Abdille's merchandise, but Abdille ran away before he could be physically injured. [A.R. 131]. Again, Abdille reported the attack to the police, but was told to return the next day. Following the December attack, Abdille decided to leave South Africa and moved to Johannesburg in order to make preparations for departure. He remained in Johannesburg for three weeks, leaving in February 1999. Abdille ultimately arrived in the United States on April 8, 1999, via Brazil and Chile.

Upon his arrival, Abdille surrendered to INS officials. On May 19, 1999, INS issued an Order to Show Cause, charging Abdille with removability under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid immigrant visa or entry document, and 8 U.S.C. § 1182(a)(7)(A)(i)(II), as an immigrant in possession of a visa not properly issued. Abdille sought asylum and withholding of removal relief both from Somalia and from South Africa. The IJ denied Abdille's asylum request with respect to Somalia, on the ground that he had firmly resettled in South Africa, and denied his asylum request with respect to South Africa, on the ground that he had failed to demonstrate persecution or a well-founded fear of persecution.³ Abdille appealed, but the BIA similarly denied his...