Matter of Soleimani

• Decision Date: 13 July 1989
• Docket Number: Interim Decision Number 3118.,A-26157647.
• Citation: 20 I&N Dec. 99
• Parties: MATTER OF SOLEIMANI. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

20 I&N Dec. 99

MATTER OF SOLEIMANI.

In Deportation Proceedings.

Interim Decision Number 3118.

A-26157647.

Board of Immigration Appeals

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 Portales, 18 I&N Dec. 239 (BIA 1982); and Matter of Lam, 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(f)(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.

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: Janet A. Savrin, Esquire 450 Seventh Avenue, Suite 1604 New York, New York 10123

ON BEHALF OF SERVICE: Louise Cavanaugh General Attorney

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.¹ 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 The respondent has appealed from that decision. The appeal will be 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 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 flew 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 nonimmigrant 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 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 concluded 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 persuasion 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 of Mogharrabi, 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 withholding of deportation,...