On the issue of “firm resettlement,” one of the grounds for denying asylum to an otherwise-eligible applicant, the BIA has been less than clear. Basically, if a person comes to the United States to apply for asylum from Country X, but in the interim they already received some permanent form of status from Country Y, the United States won’t grant you asylum.

The recurring question parties always struggle with on this issue is what kind of legal status counts as “firm resettlement.”

In its published decision in Matter of D-X- & Y-Z the BIA tried to answer this question.  Matter of D-X- says that a person who obtained fraudulent resident permits in Belize while being smuggled to the United States had been “firmly resettled” in Belize.  Unfortunately, that makes no sense at all.

The immigrant in Matter of D-X- demonstrated he was likely to be persecuted in China, but the Board’s decision means he’s likely to be deported to China.  If he truly had some form of permanent status in Belize, this would be understandable. If you can’t stay in the United States, at least you can go to Belize where you won’t be persecuted.  But in this case, the only “status” he got in Belize was a fraudulent paper, which of course won’t survive once Belize finds out.

No matter what moralistic judgments one makes about obtaining fake immigration papers to get to the United States to apply for asylum, the Board’s decision has serious implications.  Setting aside the weird grammar and awkward wording, the decision’s result is bizarre. At page 666, the decisions’s author, Garry Malphrus, wrote:

“It is well settled that an alien is not faulted for using fraudulent documents to escape persecution and seek asylum in the United States.”

We would agree.  But then on the same page, one a few lines later he writes:

“we note that aliens who have obtained an immigration status by fraud should not be permitted to disavow that status in order to establish eligibility for another type of relief.”

Which is it?  The aliens in Matter of D-X- were accused of escaping China by obtaining fraudulent permits to reside in Belize, but they eventually made their way to the United States and applied for asylum.  They were found eligible for asylum, but the BIA has said they cannot be granted that relief because they were “firmly resettled” in Belize, on account of their fake documents.

The second quotation from the decision doesn’t even make any sense.  The aliens had not “obtained an immigration status” by fraud – they obtained fraudulent Belizian papers – papers not worth anything if actually scrutinized by Belize immigration officials.  So the practical consequence is that the person can’t return to Belize, in lieu of China. How, then can they be considered “firmly resettled” in Belize?

Yes, we should not encourage fraud, but asylum seekers from all over the word regularly have to employ subterfuge to flee danger, and the BIA and various courts have recognized this reality.  See Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987); Singh v. Holder, 638 F.3d 1264, 1271 (9th Cir. 2011); Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir. 2007).

For example, many Somalis that have fled to the United States have had to obtain fake Kenyan passports.  Notably, Somalia at times in the last 30 years Somalia wasn’t even issuing passports.  Eritreans often obtain fake Ethiopian passports.  One of the realities is that if one’s country does not want them to leave, they typically will not allow them to obtain a passport and pass through customs.

Moreover, the “firm resettlement” bar is not designed to punish people for buying a fake passport to get to the United States.  Its sole purpose is to deny asylum to individuals who don’t need asylum, because they can go back to the other country where they already found protection. Obtaining a fake passport is not advisable, but the BIA and the courts for years have recognized it as a sad, but maybe understandable, element of the asylum system.

Now, the BIA has said that by purchasing fake papers in another country, you are no longer eligible for asylum in the United States because perhaps you can go back to the country where, at least on paper, you’re legal. Even if in reality you’re not. That is a bizarre result that hopefully someone will challenge in federal court.