Ghenet Naizghi v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A200-631-979. Copies to all parties and the agency. [999657473]. [13-2511, 14-1530]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2511

GHENET DEBESAI NAIZGHI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General, 1
Respondent.

No. 14-1530

GHENET DEBESAI NAIZGHI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petitions for Review of Orders of the Board of Immigration
Appeals.

Argued:
1

October 30, 2014

Decided:

September 10, 2015

Loretta E. Lynch is substituted as Respondent for her
predecessor, Eric H. Holder Jr., as Attorney General of the
United States. See Fed. R. App. P. 43(c)(2).

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Before TRAXLER,
Judges.

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Chief

Judge,

Pg: 2 of 16

and

KING

and

THACKER,

Circuit

Petitions for review denied by unpublished per curiam opinion.
Chief Judge Traxler wrote a dissenting opinion.

ARGUED: Monalisa Dugue, Geoffrey James Heeren, VALPARAISO
UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner.
Corey Leigh Farrell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
ON BRIEF: Sara Dietrich,
Cecilia Lopez, Michelle Prasad, VALPARAISO UNIVERSITY LAW
CLINIC, Valparaiso, Indiana, for Petitioner. Joyce R. Branda,
Acting Assistant Attorney General, Terri J. Scadron, Assistant
Director, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ghenet Debesai Naizghi (“Petitioner”) fled Eritrea in
1994, lived in Italy until 2009, and then applied for United
States

asylum

status

in

2010.

The

Government

opposed

Petitioner’s request for asylum, arguing that she was firmly
resettled in Italy and, therefore, barred from asylum relief.
Specifically, the Government argued that Petitioner was firmly
resettled

because

she

was

eligible

to

apply

for

Italian

citizenship; secured an Italian work permit; and was able to
travel,
reasons,

work,
the

Immigration

and

obtain

Immigration
Appeals

medical
Judge

(“Board”)

care

in

(“IJ”)
denied

Petitioner sought review by this court.

Italy.
and

the

For

these

Board

Petitioner’s

of

request.

Because we believe the

Board’s decision is supported by substantial evidence, we deny
the petitions for review.
I.
Petitioner and her family are Pentecostal Christians,
and Petitioner’s father was a Pentecostal preacher.

Because of

their religion, Petitioner and her family suffered persecution
by the Eritrean government.
Petitioner’s

father,

and

In 1993, Eritrean soldiers abducted
in

1994,

soldiers

Petitioner’s home and abducted her brother.

forcibly

Petitioner has not

seen or heard from her father or brother since.

3

entered

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Petitioner obtained travel documents and fled to Italy
in

1994.

She

had

no

legal

status

connections in Italy when she arrived.

and

no

family

or

social

She managed to find work

as a housekeeper and eventually applied for asylum.

But for

reasons absent from the record, the Italian government denied
her asylum application.

Therefore, Petitioner resided in Italy

unlawfully from 1994 to 1996.

Petitioner applied for a living

subsidy from the Italian government, which was also denied.
1996,

Petitioner

initially

had

obtained

to

be

a

temporary

renewed

renewable every other year.

every

work

year

but

In

permit,

which

later

became

According to Petitioner’s testimony

during her asylum hearing, she was required to show proof of
employment and to pay taxes in order to renew the temporary work
permit.

Nonetheless,

employed,

Italy

even

at

consistently

period of 12 years.

times

renewed

when
her

Petitioner
work

was

permit

not

over

a

As such, Petitioner was able to reside in

Italy from 1996 to 2008 on a string of temporary work permits.
When

she

could

afford

rent,

Petitioner

rented

a

room

in

an

apartment; when she could not, she lived with a nun.
Although her testimony was not supported with specific
references to Italian law, Petitioner testified that Italian law
permits individuals who have resided in Italy for ten years to
apply

for

citizenship.

Thus,

Petitioner

claims

eligible to apply for Italian citizenship in 2004.
4

she

became

Two years

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later, in 2006, Petitioner applied for citizenship.
to

Petitioner’s

uncontroverted

testimony,

to

According

complete

the

application process she was “required . . . to go to the embassy
of

Italy

in

Eritrea

authenticated.”

and

have

A.R. 150. 2

[a]

document

translated

and

Fearing that returning to Eritrea

would expose her to the same fate that befell other members of
her

family,

required

Petitioner

forms

except

submitted
the

her

application

authenticated

document.

with

all
Italy

eventually rejected Petitioner’s citizenship application -- its
reason for doing so is not in the record.

However, Petitioner

remained in Italy on her temporary work permit.
In 2008, while still in Italy, Petitioner was raped by
patrons of the restaurant where she worked.

By virtue of her

temporary work permit, she received medical care at an Italian
hospital.
indicate
expenses.

Petitioner’s testimony as well as the IJ’s findings
that

the

Following

Italian
the

government

sexual

covered

assault,

her

medical

Petitioner

traveled

back to Eritrea on August 6, 2008, to be with her mother.
the time, she did not intend to return to Italy.

At

While in

Eritrea, Petitioner did not attempt to obtain the required form
needed for Italian citizenship.

2

Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.

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On August 18, 12 days after she arrived in Eritrea,
Petitioner was attending a prayer meeting at her mother’s home.
Government

soldiers

question Petitioner.

interrupted

the

meeting

and

demanded

to

When she hesitated to comply, the soldiers

dragged Petitioner out of the house and beat her.

The soldiers

then took her to another location, where they held her captive
in a small, poorly ventilated structure.

They beat, sexually

assaulted, and starved her for eight days before her mother was
finally able to successfully bribe the soldiers to release her.
On September 8, 2008, Petitioner fled once again to
Italy,

intending

to

use

the

entry into the United States.

country

as

a

stepping-stone

for

She arrived with no job, but she

was later able to resume work as a housekeeper pursuant to her
temporary work permit, which remained active.

In February 2009,

the United States granted Petitioner a B-2 travel visa for a
period of seven months.
June 1, 2009.

At that point, Petitioner had spent approximately

14 years in Italy.
United

States,

She left Italy for the United States on

her

Petitioner claims that after coming to the
Italian

legal

temporary work permit, were stolen.

6

documents,

including

her

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Petitioner applied for asylum in the United States on
March 4, 2010. 3

The Government served Petitioner with a Notice

to Appear on April 20, 2010, alleging she had overstayed her B-2
travel visa.

Petitioner appeared before the IJ on April 30,

2012, and conceded her removability, but she requested asylum
and

withholding

of

removal.

The

Government

did

not

oppose

withholding of removal, but argued that Petitioner was subject
to the firm resettlement bar to asylum.
on

Petitioner’s

testimony

regarding

The Government relied
Italy’s

citizenship

application process, the amount of time she lived in Italy, the
renewal

of

her

work

permit,

and

her

ability

to

receive

subsidized medical care.
The

IJ

granted

Petitioner’s

application

for

withholding of removal but denied her asylum petition because it
concluded that she had been firmly resettled in Italy before
arriving in the United States and was, therefore, barred from
asylum relief.

On November 25, 2013, the Board affirmed the

IJ’s finding of firm resettlement, providing its own analysis.

3

By this point, Petitioner had overstayed her travel visa
by two months, and during that time, she had not attempted to
even begin the asylum process in the United States.

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Petitioner filed a timely petition for review with this court on
June 4, 2014. 4
II.
When

the

Board

affirms

the

IJ’s

opinion

and

supplements the IJ’s reasoning, as it did here, we review both
opinions.
2014).

See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir.

We review for substantial evidence a Board’s decision

that an individual is firmly resettled.

See Mussie v. U.S.

Immigration & Naturalization Serv., 172 F.3d 329, 331 (4th Cir.
1999).

Under this standard, we treat the Board’s findings as

conclusive “unless any reasonable adjudicator would be compelled
to

conclude

to

the

contrary.”

Cordova,

759

F.3d

at

337

(internal quotation marks omitted).
III.
A.
The

Illegal

Immigration

Reform

and

Immigrant

Responsibility Act of 1996 (“IIRIRA”) statutorily bars an alien
from

being

eligible

for

asylum

if

he

or

she

was

“firmly

resettled in another country prior to arriving in the United

4

Petitioner filed two petitions for review. The first, No.
13-2511, sets forth the arguments outlined in this opinion. The
second, No. 14-1530, was filed in response to the Government’s
motion to dismiss for lack of jurisdiction, which was denied.
The second petition for review does not add any substantive
arguments for our review.

8

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States.”

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8 U.S.C. § 1158(b)(2)(A)(vi).

Although IIRIRA does

not define the term “firm resettlement,” the Code of Federal
Regulations

fills

this

definitional

gap,

defining

“firm

resettlement” as follows:
An
alien
is
considered
to
be
firmly
resettled if, prior to arrival in the United
States, he or she entered into another
country with, or while in that country
received, an offer of permanent resident
status, citizenship, or some other type of
permanent resettlement . . . .
8

C.F.R.

§ 1208.15.

Additionally,

the

Board

has

provided

a

framework to streamline the case-by-case adjudication of asylum
claims pursuant to this definition of firm resettlement.

See

Matter of A-G-G-, 25 I. & N. Dec. 486, 500-03 (B.I.A. 2011).
The Board’s framework consists of four steps.
one,

the

government

proffers

prima

facie

evidence

In step
that

petitioner has been firmly resettled in a third country.
G-G-, 25 I. & N. Dec. at 501.

the

See A-

If the government fails to

present a prima facie case of an offer of permanent residence,
the inquiry ends.

If the government succeeds, then the court

moves on to step two, which shifts the burden to the asylum
applicant to show “by a preponderance of the evidence that such
an offer has not, in fact, been made or that he or she would not
qualify for it.”

Id. at 503.

Then, in step three, the IJ

evaluates the totality of the evidence to determine whether the
applicant has, in fact, rebutted the government’s proffer.
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See

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If the IJ determines the applicant effectively rebutted the

government’s case, the applicant may be granted asylum.

See id.

But if the applicant has failed, the IJ proceeds to step four,
and

the

applicant

must

establish

that

she

meets

one

of

regulatory exceptions to a finding of firm resettlement. 5

the
See

id.
At the first step, the Government bears the initial
burden of proffering prima facie evidence of firm resettlement.
See A-G-G-, 25 I. & N. Dec. at 501.

According to A-G-G-, the

Government may carry its burden preferably via direct evidence
or, in the absence of direct evidence, via sufficiently clear
and forceful indirect evidence:
In order to make a prima facie showing
that an offer of firm resettlement exists,
the [government] should first secure and
produce
direct
evidence
of
governmental
documents indicating an alien’s ability to
stay
in
a
country
indefinitely.
Such
documents may include evidence of refugee
status, a passport, a travel document, or
other
evidence
indicative
of
permanent
residence.
If direct evidence of an offer of firm
resettlement
is
unavailable,
indirect
evidence may be used to show that an offer
5

There are two regulatory exceptions to the firm
resettlement bar: the alien remained in the third country only
for so long as necessary to secure onward travel, or the third
country “substantially and consciously restricted” the alien’s
residence such that “he or she was not in fact resettled.”
8
C.F.R. §§ 1208.15(a), (b).

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of firm resettlement has been made if it has
a sufficient level of clarity and force to
establish
that
an
alien
is
able
to
permanently reside in the country. Indirect
evidence may include the following: the
immigration laws or refugee process of the
country of proposed resettlement; the length
of the alien’s stay in a third country; the
alien’s intent to settle in the country;
family
ties
and
business
or
property
connections;
the
extent
of
social
and
economic ties developed by the alien in the
country; the receipt of government benefits
or assistance, such as assistance for rent,
food, and transportation; and whether the
alien had legal rights normally given to
people who have some official status, such
as the right to work and enter and exit the
country.
Id. at 501-02 (footnote omitted).
This test “focuses exclusively on the existence of an
offer.”

A-G-G-, 25 I. & N. Dec. at 501.

Indirect evidence is

not afforded weight equal to that afforded to direct evidence:
“according

equal

weight

to

indirect

evidence,

such

as

the

country’s residence laws, length of an alien’s residence in an
intervening country, or the alien’s intent, is inconsistent with
the fact that only the government of the intervening country can
grant

an

there.”

alien

the

Id.

circumstantially

right

to

lawfully

Nonetheless,
demonstrate

that

and

permanently

indirect
the

alien

reside

evidence
was

may

offered

permanent residence status, and the legal rights it entails, by
a foreign country if “it has a sufficient level of clarity and
force.”

Id. at 502.
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While the Board did not mention what forms of indirect
evidence are sufficient to prove firm resettlement, alone or in
combination, it did indicate that some types of evidence carry
less weight than others.
lengthy

period

of

For example, the Board held that a

residence

in

a

third

country

cannot,

itself, establish a prima facie case of firm resettlement.

by
Cf.

A-G-G-, 25 I. & N. Dec. at 501 (“Such a right ‘cannot be gained
through adverse possession.’” (quoting Abdille v. Ashcroft, 242
F.3d 477, 487 (3d Cir. 2001))).

However, the Board made clear

that “[t]he existence of a legal mechanism in the country by
which an alien can obtain permanent residence may be sufficient
to make a prima facie showing of an offer of firm resettlement.”
Id. at 502 (emphasis in original).

Furthermore, section 1208.15

“only

of

require[s]

that

an

offer

firm

resettlement

available, not that the alien accepted the offer.”
The

Board

justified

this

rule

as

necessary

to

was

Id. at 503.
protect

“the

purpose of the firm resettlement bar, which is to limit refugee
protection to those with nowhere else to turn.”

Id.

B.
We have held that when an agency interprets its own
regulation,

“the

agency’s

interpretation

controls

unless

that

interpretation is ‘plainly erroneous or inconsistent with the
regulation.’” Dickenson-Russell Coal Co., LLC v. Sec’y of Labor,
747 F.3d 251, 257 (4th Cir. 2014) (quoting Auer v. Robbins, 519
12

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452,

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461

(1997)).

The

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parties

agree

that

the

Board’s

decision in A-G-G- is “a reasonable interpretation of the firm
resettlement

statute

deference.”

and

regulation,

and

should

be

given

Gov’t’s Br. 23 n.3; see also Pet’r’s Br. 20.

We

also agree.
C.
Applying the Board’s framework as laid out in A-G-G-,
substantial
Petitioner

evidence
was

firmly

supports

the

resettled

Board’s

in

conclusion

Italy.

The

that

Government

offered sufficient indirect evidence 6 to present a prima facie
case

that

arriving

Petitioner
in

the

was

United

firmly

resettled

States,

and

in

Italy

Petitioner

before

did

not

sufficiently rebut that evidence.
In order to make its prima facie case, the Government
offered Petitioner’s uncontroverted testimony that, by virtue of
her

ten-year

stay

in

Italy,

she

was

eligible

citizenship pursuant to Italian citizenship law.

to

apply

for

The Government

also proffered the duration of Petitioner’s stay in Italy; her
temporary
ability

work

to

permit,

travel

which

pursuant

she
to

renewed

the

several

permit;

her

times;

her

receipt

of

government subsidized medical care as a work permit holder; and
6

Neither party argues that the Government provided direct
evidence.
Thus, we proceed under the indirect evidence
analysis.

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her ability to obtain housing.

This evidence is sufficient to

shift the burden to Petitioner.

See Mussie v. United States

Immigration & Naturalization Service, 172 F.3d 329, 332 (4th
Cir.

1999)

(“A

duration

of

residence

in

a

third

country

sufficient to support an inference of permanent resettlement in
the absence of evidence to the contrary shifts the burden of
proving absence of firm resettlement to the applicant.” (quoting
Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir. 1998))); Hanna v.
Holder,

740

F.3d

379,

394

(6th

Cir.

2014)

(concluding

that

testimony of a petitioner and her father that the petitioner was
granted “landed immigrant status” in Canada was enough for the
Government to satisfy its prima facie case).
At A-G-G- steps two and three, we believe substantial
evidence supports the Board’s conclusion that Petitioner did not
rebut

the

prima

preponderance

of

facie
the

case

of

firm

evidence.”

25

I.

resettlement
&

N.

Dec.

“by
at

a

503.

Petitioner provided scant evidence that she did not receive an
offer of citizenship from Italy or that she would not qualify
for citizenship.
that

she

was

See id.

unable

to

Indeed, we find specious her argument
complete

Italy’s

citizenship

process

because she could not obtain a required form from Eritrea, but
she then returned to Eritrea and still did not obtain the proper
paperwork.

Therefore,

we

cannot

14

say

that

a

“reasonable

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adjudicator would be compelled to conclude” that Petitioner was
not firmly resettled in Italy.

Cordova, 759 F.3d at 337.
IV.

For the foregoing reasons, we deny the petitions for
review.
PETITIONS FOR REVIEW DENIED

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TRAXLER, Chief Judge, dissenting:
With respect to the views of my distinguished colleagues, I
would

grant

rebutted

the

the

petition

Government’s

permanent status.

for

review.

evidence

of

In
an

my

view,

Italian

Naizghi

offer

of

She testified without contradiction that the

Italian application process required her to return to Eritrea,
the country from which she was fleeing persecution, and submit
various
there.

authenticated

documents

through

the

Italian

Embassy

In my opinion, this is not an offer of permanent status

by Italy.

The fact that Naizghi retreated to Eritrea to be with

her family after being raped in Italy and subsequently returned
to Italy without the required paperwork does not convince me
otherwise.
by

the

Twelve days after her arrival, Naizghi was abducted

government

from

a

prayer

variety of abuses by her captors.

meeting

and

subjected

to

a

After her mother secured her

release by bribing officials, Naizghi returned to Italy.

In my

opinion, it would be unreasonable to expect her to remain in
Eritrea to secure documentation.

Accordingly, Naizghi satisfied

her burden of rebutting the Government’s prima facie case.

I

therefore would grant Naizghi’s petition for review and allow
her to continue seeking asylum in this country.

16