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Third Circuit Rejects "Totality of the Alien’s Circumstances" and Narrowly Defines the "Firm Resettlement" Bar to Asylum
by Carl R. Baldwin

On March 7, 2001 the Third Circuit depended on current INS regulations to narrowly define ‘firm resettlement” in the case of Abdille v. Attorney General, No. 00-1659. The Refugee Act provides that an alien may not be granted asylum if “the alien was firmly resettled in another country prior to arriving in the United States.” Immigration and Nationality Act, Section 208(b)(2)(A)(vi). Will there be a firm resettlement bar to asylum, even where the settled-in country did not make an offer of permanent residence to the alien who stayed there? Up until now, the answer has been “Yes, if the totality of the alien’s circumstances indicated firm resettlement.” After the Third Circuit holding, that may change.

Regulations now define firm resettlement as “an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” Firm resettlement would not be shown if the alien entered that third country “as a necessary consequence” of the flight from persecution, and remained “only as long as necessary to arrange onward travel,” and did not “establish significant ties” there. Firm resettlement would also be obviated if conditions of residence in the third country were “substantially and consciously restricted” by the authorities. 8 CFR 208.15.

The case reviewed by the Third Circuit is a distressing one. The alien, Mohamed Abdille, was a native of Somalia. Orphaned at a very early age, he was in a sort of “limbo” without any clan affiliation. That did not seem to matter much so long as the country had a stable central government, but when that government collapsed and rival clan-based militias became a law unto themselves, life became dangerous for Abdille. Lacking a clan affiliation, he was tormented and mistreated by militia members who apparently suspected him of belonging to a rival clan. (From the point of view of asylum eligibility, his “particular social group” would have been “a native of Somalia who lacked clan affiliation,” a situation that an expert witness described as potentially life-threatening.) Abdille fled Somalia in 1998, and made his way to South Africa. The court noted that the parties did not dispute that Abdille had satisfied his burden of proving past persecution or a well-founded fear of future persecution in Somalia, and turned its attention to the question of persecution and firm resettlement in South Africa.

The South African government granted asylum to Abdille in June, 1998, a status that was to last for two years. He was issued a South African passport and a travel document permitting him to reenter the country if he departed from it. Unable to be certified as an electrician, his trade in Somalia, he was reduced to working as a street vendor. He suffered two incidents of theft of his goods, and one of physical attack and injury, perpetrated by two different groups of South Africans. He reported both incidents to the authorities, and told them that he could identify the perpetrators. The authorities did nothing. Abdille fled the country in February 1999, and arrived in the United States in April, 1999, where he surrendered to the INS.

Placed under proceedings, Abdille applied for asylum and withholding of removal both from Somalia and South Africa. The immigration judge denied the application with respect to Somalia on the ground that Abdille had firmly resettled in South Africa, and denied the application with respect to South Africa on the ground that a case of persecution there had not been made out. The Board of Immigration Appeals affirmed the decision of the immigration judge.

The court looked long and hard at the INS regulations on firm resettlement at 8 CFR 208.15. It then considered the alternative measuring of the “totality of the alien’s circumstances” approach taken in Chinese American Civil Council v. Attorney General, 566 F.2d 321 (D.C. Cir. 1977). In that case “firm resettlement” was found when Chinese aliens, after fleeing from Mainland China, had lived in Hong Kong for at least fifteen years before going to the United States. The court did not consider whether an offer of permanent residence had been made to the aliens. A number of other circuit court decisions have found a “firm resettlement” bar to asylum based on the length of time safely spent in a third country, even without any offer of resident status by that third country.

The Circuit Court in the Abdille case rejected the “totality of the alien’s circumstances” approach, and adhered to the plain language of the current INS regulations, which finds “firm resettlement” only if an offer of permanent residence has been made. Such an offer was not made to Abdille by the South African government, and so the court inclined to the view that there was no “firm resettlement” bar to eligibility for asylum from Somalia. The court was cautious, however, and decided to remand the matter so that the Board could further explore whether the two-year grant of asylum to Abdille by South Africa could in fact have “amounted to an offer of some other type of permanent resettlement” within the meaning of 8 CFR 208.15. This decision, while not settling the case for Abdille, seems to represent a victory for the “plain meaning” theory of statutory and regulatory construction.

The Third Circuit decision is found at:,0313-Abdille.shtm

About The Author

>Carl R. Baldwin graduated from Columbia University Law School in 1980, and became a member of the New York State Bar a year later. He worked for three years with the New York City Law Department, and then entered solo practice in immigration law, which he has continued to the present. His work with clients has included asylum applications, deportation defense, visa processing, adjustment of status, and naturalization. He has also worked to implement special laws, such as the 1986 "amnesty" (The Immigration Reform and Control Act), and the 1998 Haitian reform act (The Haitian Refugee Immigration Fairness Act). Mr. Baldwin is the author of Immigration News Monthly. He can be reached by e-mail at

He has written a book on immigration law, called "Immigration Questions and Answers," 1997, Allworth Press, 10 East 23rd Street, New York, NY 10010 (212) 777-8395. The book, which contains essential background information about how the immigration law works, can be ordered in both an English Edition and a Spanish version from

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