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 Filed March 7, 2001 
   
 UNITED STATES COURT OF APPEALS 
  FOR THE THIRD CIRCUIT 
   
 No. 00-1659 
   
 MOHAMED ABDILLE, Petitioner 
   
 v. 
   
 JOHN ASHCROFT,* ATTORNEY GENERAL OF TH E 
  UNITED STATES, Respondent 
   
 On Petition for Review of an Order of the 
  Board of Immigration Appeals 
  (Agency No. A 77 007 398) 
   
 Argued: December 18, 2000 
   
 Before: BECKER, Chief Judge, NYGAARD and 
  FUENTES, Circuit Judges. 
   
 (Filed March 7, 2001) 
          
        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 
  _________________________________________________________________ 
  * Substituted for Janet Reno pursuant to Federal Rule of Appellate 
  Procedure 43(c). 

        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 
   
 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 gr ound 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 S 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 S 208.15 makes 
  clear that the prime factor in the firm r esettlement inquiry 
  is the existence of an offer of permanent resident status, 
  citizenship, or some other type of permanent r esettlement. 
  While recognizing that factors other than the issuance of 
  such an offer may prove relevant to the firm resettlement 
                                   
                                 2 

 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 accor ding 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 for eign 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 gover nment. 
   
 One critical element in the resolution of thefirm 
  resettlement question is the determination of whether 
  Abdille or the government will bear the bur den 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 bur den, 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. 
                                   
                                 3 

 I. Facts and Procedural History1 
   
 Abdille was born in Somalia in 1967, and was orphaned 
  at an extremely early age. He never lear ned 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, per haps life- 
  threatening, impediment. Such dangers wer e 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 pr esumed 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 Mar ch 1998, Abdille fled Somalia 
  _________________________________________________________________ 
  1. The basic facts concerning Abdille's life in Somalia and South Africa, 
  as well as the circumstances leading up to his application for asylum in 
  the United States, are not in dispute. Our r ecitation of these facts, 
  particularly with regard to events in Somalia and South Africa, is drawn 
  principally from Abdille's affidavit in support of his petition for asylum, 
  and a transcript of Abdille's oral testimony befor e the Immigration Judge 
  (IJ), both of which are contained in the Certified Administrative Record. 
  The IJ specifically found Abdille's testimony to be credible. 
   
 2. Abdille's affidavit and oral testimony depict these events in much 
  greater detail. For instance, during one detention, Abdille was subjected 
  to a mock execution. On another occasion, militia members tied Abdille's 
  hands and feet, repeatedly beat him with sticks, and stabbed his arm 
  and chest with a bayonet. As part of his application for asylum, Abdille 
  submitted a report prepared by Dr . Nina Regevik, who conducted a 
  physical examination of Abdille and concluded that Abdille's scars were 
  consistent with a history of beatings and stabbings. 
                                   
                                 4 

 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 her e 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 Contr ol 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, fr om April 1998 
  through January 1999, in a rented gr oup 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 suf fered 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 suffer ed 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 
                                   
                                 5 

 identify the assailants, but he testified in pr oceedings 
  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 dif ferent market. 
  The men stole all of Abdille's merchandise, but Abdille ran 
  away before he could be physically injur ed. [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 thr ee 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. 
  S 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. 
  S 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 r espect to 
  Somalia, on the ground that he had fir mly 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 requests for asylum from both Somalia and South 
  Africa, for the reasons relied upon by the IJ. Abdille now 
  brings a Petition for Review contesting the BIA's decision. 
  Because Abdille's removal proceedings wer e commenced 
  _________________________________________________________________ 
   3. The IJ also denied Abdille's request for withholding of removal to 
  South Africa, and granted his request for withholding of removal to 
  Somalia. Abdille did not appeal the IJ's withholding of removal decisions 
  to the BIA, and does not seek review of those decisions on this appeal. 
  Accordingly, we need not concern ourselves with the question whether 
  Abdille was eligible for withholding of removal relief. 
                                   
                                 6 

 after April 1, 1997, we have jurisdiction pursuant to 8 
  U.S.C. S 1252(a)(1). 
   
 II. General Asylum Standards 
   
 The federal asylum statute confers discretion on the 
  Attorney General to grant asylum to an alien applicant "if 
  the Attorney General determines that such alien is a 
  refugee within the meaning of section 1101(a)(42)(A)." 8 
  U.S.C. S 1158(b)(1). Section 1101(a)(42)(A) defines "refugee" 
  as 
          
        any person who is outside any country of such 
         person's nationality or, in the case of a person having 
         no nationality, is outside any country in which such 
         person last habitually resided, and who is unable or 
         unwilling to return to, and is unable or unwilling to 
         avail himself or herself of the protection of, that 
         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 . . . . 
   
 8 U.S.C. S 1101(a)(42)(A). The asylum applicant bears the 
  burden of establishing that he or she falls within this 
  statutory definition of "refugee." See 8 C.F.R. S 208.13(a) 
  (2000); see also Balasubramanrim v. INS, 143 F.3d 157, 
  161 (3d Cir. 1998). 
   
 Section 1158(b)(2) lists several exceptions pr oscribing the 
  Attorney General from exercising his discretion to grant 
  asylum, including the exception pertinent to this appeal, 
  added to the federal asylum statute by the Illegal 
  Immigration Reform and Immigrant Responsibility Act of 
  1996 (IIRIRA): Section 1158(b)(2)(A)(vi) bars the grant of 
  asylum to an alien "firmly resettled in another country prior 
  to arriving in the United States." 8 U.S.C. S 1158(b)(2)(A)(vi); 
  see also 8 C.F.R. S 208.13(c)(1) (2000) ("For applications 
  filed on or after April 1, 1997, an applicant shall not qualify 
  for asylum if section . . . 208(b)(2) of the Act[8 U.S.C. 
  S 1158(b)(2)] applies to the applicant.").4 
   
 (Text continued on page 9) 
  _________________________________________________________________ 
   4. The compulsory language of the statute and r egulations makes clear 
  that a finding of firm resettlement is currently a mandatory bar to the 
                                   
                                 7 

 grant of asylum. However, a brief survey of the evolution of the firm 
  resettlement bar reveals that this was not always the case. The concept 
  of "firm resettlement" was first introduced into U.S. immigration law in 
  the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, which used 
  the concept of firm resettlement in the definition of "displaced person," 
  and the Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400, 
  which expressly included the phrase "fir mly resettled" in the definition  
  of 
  "refugee," as a limitation on the persons eligible for such status. See 
  Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53-54 & n.3 (1971). When the 
  Refugee Relief Act was extended in 1957, however , the "firmly resettled" 
  language was dropped from the "r efugee" definition, and was not re- 
  inserted in subsequent statutory revisions to U.S. refugee laws until the 
  IIRIRA in 1996 codified the firm r esettlement bar. See 8 U.S.C. 
  S 1158(b)(2)(A)(vi). 
   
 The present firm resettlement bar re-emerged in the Supreme Court's 
  1971 decision in Yee Chien Woo, a case involving a native of mainland 
  China, who fled that country in 1953, arrived in the United States in 
  1960, and eventually applied for an immigrant visa claiming a 
  "preference" under S 203(a)(7) of the Immigration and Nationality Act of 
  1952, as an alien who fled a Communist country fearing persecution on 
  account of race, religion, or political opinion. See 402 U.S. at 50-51, 53. 
  In the seven years prior to his arrival in the U.S., Yee Chien Woo had 
  lived and worked in Hong Kong. See id. at 50. The INS used Yee Chien 
  Woo's residence and work in Hong Kong as a ground for denying his 
  application, but the Court of Appeals for the Ninth Circuit determined 
  that the INS's reliance on the alien's fir m resettlement was erroneous. 
  See id. at 51-52. Pointing to the fact that Congress had omitted the 
  phrase "firmly resettled" from statutory definitions of "refugee" after 
  1957, the Ninth Circuit concluded that Y ee Chien Woo's firm 
  resettlement in Hong Kong was irrelevant to the issue whether his 
  immigration application should be granted underS 203(a)(7). See id. The 
  Supreme Court, however, unambiguously r ejected the Ninth Circuit's 
  approach: "In short, we hold that the `r esettlement' concept is not 
  irrelevant. It is one of the factors which the Immigration and 
  Naturalization Service must take into account to determine whether a 
  refugee seeks asylum in this country as a consequence of his flight to 
  avoid persecution." Id. at 56. 
   
 As the quoted language above demonstrates, following Yee Chien Woo, 
  "firm resettlement" was not a mandatory bar to asylum eligibility, but 
  rather one of the factors the INS was to weigh in exercising its  
  discretion 
  as to the grant of an alien's asylum application. See, e.g., Farbakhsh v. 
  INS, 20 F.3d 877, 881 (8th Cir. 1994) (canvassing briefly the history of 
                                   
                                 8 

 "Firm resettlement," "persecution," and "well-founded fear 
  of persecution" are all findings of fact that we review under 
  the deferential substantial evidence standar d articulated in 
  INS v. Elias-Zacarias, 502 U.S. 478 (1992)."Substantial 
  evidence is more than a mere scintilla and is such relevant 
  evidence as a reasonable mind might accept as adequate to 
  support a conclusion." Senathirajah v. INS , 157 F.3d 210, 
  216 (3d Cir. 1998) (internal quotation marks and citation 
  omitted). Under the substantial evidence standar d, the 
  BIA's finding must be upheld unless the evidence not only 
  supports a contrary conclusion, but compels it. See Elias- 
  Zacarias, 502 U.S. at 481 & n.1; Chang v. INS, 119 F.3d 
  1055, 1060 (3d Cir. 1997) ("On questions of fact, we will 
  reverse the BIA's determination that[an applicant] is not 
  eligible for asylum . . . only if a reasonable fact-finder would 
  have to conclude that the requisite fear of persecution 
  existed.") (emphasis added). 
   
 III. The Firm Resettlement Inquiry 
   
 The BIA denied Abdille asylum from Somalia based on a 
  finding of firm resettlement in South Africa. As mentioned 
  _________________________________________________________________ 
   the firm resettlement bar). Prior to 1990, INS regulations prohibited 
  district directors from granting asylum to aliens who had firmly resettled 
  in a third country, see 8 C.F.R.S 208.8(f)(1)(ii) (1988), but the BIA 
  interpreted that regulation as not applying either to immigration judges 
  or to the Board itself. See Matter of Soleimani, 20 I. & N. Dec. 99, 104 
  (BIA 1989). Accordingly, for immigration judges and the BIA, firm 
  resettlement was a factor used to guide their discretion in determining 
  whether to grant asylum. See 3 Charles Gor don et al., Immigration Law 
  & Procedure S 33.04[1][e][iii], at 33-52.9 (2000). The BIA did, however, 
  also rule that firm resettlement would ordinarily preclude an asylum 
  grant unless the alien could demonstrate compelling countervailing 
  equities in his or her favor. See Soleimani, 20 I. & N. at 105. 
   
 Effective October 1, 1990, the INS amended its regulations concerning 
  firm resettlement, providing for a mandatory denial of asylum upon a 
  finding of firm resettlement. See 8 C.F.R. S 208.14(c)(2) (1991);see also 
  8 C.F.R. S 202.13(c)(2)(i)(B) (2000) (stating that for asylum applications 
  filed before April 1, 1997, an immigration or asylum officer shall not 
  grant asylum to any alien who "[h]as beenfirmly resettled."). As noted 
  above, Congress in 1996 codified this mandatory bar in the federal 
  asylum statute at 8 U.S.C. S 1158(b)(2)(A)(vi). 
                                   
                                 9 

 above, the firm resettlement bar applicable in Abdille's case 
  is codified in the INA at 8 U.S.C. S 1158(b)(2)(A)(vi), and 
  referenced in the INS's regulations at 8 C.F.R. S 208.13(c)(1).5 
  The INA does not furnish a definition of"firm resettlement," 
  but federal regulations do, and that definition becomes vital 
  to our analysis in the instant matter. Specifically, 8 C.F.R. 
  S 208.15, captioned "Definition of `firm resettlement,' " 
  provides the following: 
           
         An alien is considered to be firmly resettled if, prior 
         to arrival in the United States, he or she enter ed into 
         another nation with, or while in that nation r eceived, 
         an offer of permanent resident status, citizenship, or 
         some other type of permanent resettlement unless he or 
         she establishes: 
           
         (a) That his or her entry into that nation was a 
         necessary consequence of his or her flight fr om 
         persecution, that he or she remained in that nation 
         only as long as was necessary to arrange onwar d 
         travel, and that he or she did not establish significant 
         ties in that nation; or 
           
         (b) That the conditions of his or her residence in that 
         nation were so substantially and consciously r estricted 
         by the authority of the country of refuge that he or she 
         was not in fact resettled. In making his or her 
         determination, the Asylum Officer or Immigration 
         Judge shall consider the conditions under which other 
         residents of the country live, the type of housing made 
         available to the refugee, whether permanent or 
         temporary, the types and extent of employment 
         available to the refugee, and the extent to which the 
         refugee received permission to hold property and to 
         enjoy other rights and privileges, such as travel 
         documentation including a right of entry or r eentry, 
  _________________________________________________________________ 
   5. In their briefs, both Abdille and the INS err oneously assume that 8 
  C.F.R. S 208.13(c)(2) contains the relevant firm resettlement bar. 
  However, by its terms, this provision applies only to an alien "who filed 
  his or her application before April 1, 1997." 8 C.F.R. S 208.13(c)(2)(i) 
  (2000) (emphasis added). Abdille did not arrive in the United States until 
  April 8, 1999, and his asylum application is dated July 23, 1999. 
                                   
                                 10 

        education, public relief, or naturalization, or dinarily 
         available to others resident in the country. 
   
 8 C.F.R. S 208.15 (2000) (emphasis added). It is the BIA's 
  application of this provision that is at issue. 
   
 The BIA's reliance on the firm r esettlement bar as its 
  basis for denying Abdille asylum from Somalia r equires us 
  to consider the factors that inform a finding of firm 
  resettlement. Our analysis, of course, is constrained by the 
  great deference we owe to the INS in immigration matters, 
  particularly when the agency interprets and applies its own 
  regulations. See, e.g., INS v. Aguirr e-Aguirre, 526 U.S. 415, 
  424-25 (1999) (holding that Chevron deference, typically 
  triggered when an agency construes a statute it is charged 
  with administering, is appropriate in the immigration 
  context because of the INA's express delegation of authority 
  to the Attorney General); Applebaum v. Nissan Motor 
  Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 2000) 
  (noting that when an agency is interpreting its own 
  regulation, rather than a statute it administers, review is 
  under the Bowles v. Seminole Rock & Sand Co., 325 U.S. 
  410 (1945), standard, which renders the agency's 
  interpretation controlling "unless it is plainly erroneous or 
  inconsistent with the regulation," id.  at 414). 
   
 Our principal guide in this endeavor is the language and 
  structure of 8 C.F.R. S 208.15, the INS's own definition of 
  firm resettlement. It is readily evident from the plain 
  language of S 208.15 that the prime element in the firm 
  resettlement inquiry is the existence vel non of "an offer of 
  permanent resident status, citizenship, or some other type 
  of permanent resettlement." 8 C.F .R. S 208.15 (2000). Thus, 
  on its face, S 208.15 explicitly centers thefirm resettlement 
  analysis on the question whether a third country issued to 
  the alien an offer of some type of official status permitting 
  the alien to reside in that country on a per manent basis. 
   
 The alternative approach would have us consider the 
  existence of a government-issued 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 
                                   
                                 11 

 intent to make that country his permanent home. Under 
  such an approach, the IJ and BIA would consider both the 
  formal issuance of an offer and the existence of various 
  non-offer-based factors together , as part of the total mix of 
  information bearing on the firm r esettlement question, and, 
  after weighing these elements as a whole, would arrive at a 
  conclusion regarding the applicant's fir m resettlement in 
  the third country. 
   
 Such a "totality of the alien's circumstances"-type of 
  calculus is suggested by Chinese American Civil Council v. 
  Attorney General, 566 F.2d 321 (D.C. Cir. 1977), in which 
  the Court of Appeals for the D.C. Circuit found that 
  Chinese aliens who had lived in Hong Kong for at least 
  fifteen years following their flight from mainland China had 
  firmly resettled in Hong Kong. See id. at 326. In reaching 
  this conclusion and in elaborating on the fir m resettlement 
  inquiry, the D.C. Circuit relied principally on non-offer- 
  based elements, noting that the time elapsed between an 
  alien's flight from a country of persecution and his 
  application for asylum in the U.S. is an important factor in 
  determining whether an alien had fir mly resettled in a third 
  country, see id. at 328 & n.18, and further stating that 
  "[a]n applicant's family ties, intent, business or property 
  connections and other matters may be relevant to 
  resettlement determinations." Id.  at 328 n.18. The court 
  made no mention of whether the government of Hong Kong 
  had extended to the aliens an offer of per manent resident 
  status, citizenship, or some other type of per manent 
  resettlement. 
   
 Although not expressly labeling it as such, other courts 
  of appeals also appear to have employed a "totality of the 
  alien's circumstances" approach in thefirm resettlement 
  context. For example, in Farbakhsh v. INS, 20 F.3d 877 (8th 
  Cir. 1994), the Court of Appeals for the Eighth Circuit 
  upheld a BIA decision denying an Iranian national eligibility 
  for asylum in the United States based on the applicant's 
  resettlement in Spain. In concluding that the BIA's finding 
  of firm resettlement was supported by the record, the court 
  relied on several non-offer-based elements, such as the fact 
  that the applicant "had lived more than four years in Spain 
  without fear of being returned to Iran"; that "he initially 
                                   
                                 12 

 intended to remain in Spain"; and that "his younger brother 
  and younger sister were living in Spain." Id. at 882. As in 
  Chinese American, no explicit mention of the for mal 
  issuance of an offer of permanent r esettlement was made. 
  In a similar vein, the Court of Appeals for the Fourth 
  Circuit appeared to follow a "totality" approach in Mussie v. 
  INS, 172 F.3d 329 (4th Cir. 1999), deciding that an 
  Ethiopian citizen had firmly resettled in Germany because 
  she received asylum status and travel documentation from 
  the German government, and "[i]n addition, she lived in 
  Germany for six years, during which time she r eceived 
  government assistance for language schooling, 
  transportation, rent, and food; held a job; paid taxes; and 
  rented her own apartment." Id. at 331-32. 
   
 We believe, however, that the plain language of the INS's 
  own definition of firm resettlement counsels against such a 
  broad, "totality of the alien's circumstances" analytical 
  framework. Section 208.15 clearly states that a prima facie 
  case of firm resettlement is established once the evidence 
  shows that the asylum applicant received "an offer of 
  permanent resident status, citizenship, or some other type 
  of permanent resettlement" in a thir d country. 8 C.F.R. 
  S 208.15 (2000). Although S 208.15 expr essly enumerates 
  certain non-offer-based elements, such as "the type of 
  housing made available to the refugee, . . . the types and 
  extent of employment available to the refugee, and the 
  extent to which the refugee received per mission to hold 
  property," id. S 208.15(b), it prompts the IJ to consider 
  such factors only in determining whether one of the two 
  exceptions to the firm resettlement bar provided for in 
  S 208.15 applies; it does not list these elements in 
  connection with the prima facie showing of fir m resettlement.6 
  _________________________________________________________________ 
   6. For example, S 208.15(a), which per mits an alien to rebut the prima 
  facie showing of firm resettlement by demonstrating that "he or she 
  remained in that nation only as long as was necessary to arrange 
  onward travel," authorizes the alien to set forth evidence that "he or she 
  did not establish significant ties in that nation." 8 C.F.R. S 208.15(a) 
  (2000) (emphasis added). Similarly, S 208.15(b), which allows an alien to 
  make this rebuttal showing by establishing"[t]hat the conditions of his 
  or her residence in that nation were . . . substantially and consciously 
  restricted by the authority of the country of r efuge," expressly mandates 
                                   
                                 13 

 Thus, by its terms, this regulatory pr ovision focuses the 
  firm resettlement analysis on the existence vel non of a 
  formal government-issued offer . 
   
 We are not the first court to r ecognize the prime 
  relevance for firm resettlement purposes of a government's 
  offer of some type of permanent r esettlement: the Court of 
  Appeals for the Tenth Circuit followed a complementary 
  analysis in Abdalla v. INS, 43 F.3d 1397 (10th Cir. 1994). 
  In Abdalla, the court considered the case of a Sudanese 
  native who was found by the BIA to have fir mly resettled in 
  the United Arab Emirates (UAE) prior to his arrival in the 
  United States. See id. at 1398. The court upheld the BIA's 
  conclusion, focusing principally on the fact that the alien 
  had lived for twenty years in the UAE under a "r esidence 
  permit" issued by the UAE government. See id. at 1399. In 
  effect, the Abdalla court treated the residence permit, 
  which had apparently conferred on the alien a legal right to 
  live and work in the UAE for two decades, as dir ect 
  evidence of a government-issued offer of permanent 
  resettlement. Importantly, the court went on to note that 
  this permit, viewed in light of the applicant's twenty-year 
  stay in the UAE, "was sufficient to suggest per manent 
  resident status, citizenship or some other per manent 
  resettlement." Id. at 1399 (inter nal quotation marks and 
  citations omitted). The court ended its fir m resettlement 
  analysis by shifting the burden to the alien"to prove that 
  his extended, officially sanctioned stay in [the UAE] did not 
  constitute a firm resettlement in the UAE." Id. at 1399 
  (emphasis added). It ultimately concluded that the alien did 
  not meet this burden in part because other , non-offer- 
  based factors, such as the alien's significant family ties to 
  the UAE, militated in favor of a firm r esettlement finding. 
  See id. at 1400. 
  _________________________________________________________________ 
   that an immigration judge, in evaluating the alien's evidentiary 
  presentation, consider factors such as "the type of housing made 
  available to the refugee, . . . the types and extent of employment 
  available to the refugee, and the extent to which the refugee received 
  permission to hold property and to enjoy other rights and privileges . . . 
  ordinarily available to others resident in the country." 8 C.F.R. 
  S 208.15(b) (2000). 
                                   
                                 14 

 We acknowledge that circumstances may arise in which 
  the INS may not be able to secure direct evidence of a 
  formal government offer of some type of permanent 
  resettlement, and thus may be not be able to make the 
  prima facie showing of firm resettlement under S 208.15 in 
  that manner. In such a situation, the IJ or BIA may find it 
  necessary to rely on non-offer-based factors, such as the 
  length of an alien's stay in a third country, the alien's 
  intent to remain in the country, and the extent of the social 
  and economic ties developed by the alien, as cir cumstantial 
  evidence of the existence of a government-issued offer. As 
  we see it, if direct evidence of an offer is unobtainable, such 
  non-offer-based elements can serve as a surrogate for 
  direct evidence of a formal offer of some type of permanent 
  resettlement, if they rise to a sufficient level of clarity and 
  force, which we need not here delineate. 7 The Court of 
  Appeals for the Ninth Circuit faced such a situation in Cheo 
  v. INS, 162 F.3d 1227 (9th Cir. 1998), as described in the 
  margin.8 See also Andriasian v. INS, 180 F.3d 1033, 1043 
  _________________________________________________________________ 
   7. In the instant matter, the INS has adduced some direct evidence that 
  Abdille received an offer of some type of resettlement from the South 
  African government. See infra Section IV.A. The INS also points to 
  certain non-offer-based factors, especially Abdille's employment as a 
  street vendor and his opportunity to work as an electrician in South 
  Africa, to bolster its contention that Abdille hadfirmly resettled in that 
  country. See infra note 9. However, because we reject a "totality of the 
  alien's circumstances" approach to thefirm resettlement inquiry, and 
  because the INS has presented direct evidence of a South African 
  government-issued offer (on which it primarily relied in arguing that 
  Abdille had received an offer of some type of permanent resettlement 
  within the meaning of 8 C.F.R. S 208.15), we need not address whether 
  such factors can serve as circumstantial evidence of a government- 
  issued offer. 
   
 8. In Cheo, two Cambodian nationals, Meng Ly Cheo and Meng Heng 
  Cheo, sought refuge from their native land, but had lived for three years 
  in Malaysia prior to their entry into the United States. See 162 F.3d at 
  1228. In conducting its firm resettlement inquiry, the Ninth Circuit first 
  noted that "there is no direct evidence one way or the other as to 
  whether the Cheos have or had the right to r eturn to Malaysia," id. at 
  1229, and therefore no evidence as to whether they had received an offer 
  of permanent resettlement from the government of that country. In such 
  a circumstance, the court contemplated the use of non-offer-based 
  factors as a substitute for the existence of an of fer as prima facie 
                                   
                                 15 

 (9th Cir. 1999) ("In the absence of dir ect evidence of an 
  offer, a lengthy, undisturbed r esidence in a third country 
  may establish a rebuttable presumption that an individual 
  has the right to return to that country and remain there 
  permanently."); Mussie v. INS, 172 F.3d 329, 332 (4th Cir. 
  1999) (citing with approval Cheo's pr esumption based on 
  the length of the alien's stay). 
          
        Finally, we note that the emphasis that S 208.15's firm 
  resettlement calculus places on the existence of a formal 
  government offer of some type of per manent resettlement is 
  in keeping with a principal facet of immigration law: A 
  nation has broad authority to regulate the terms and 
  conditions under which an individual can be admitted 
  within its borders, and under which he can seek to 
  establish a residence therein. See Miller v. Albright, 523 
  U.S. 420, 453 (1998) (Scalia, J., concurring); Rogers v. 
  Bellei, 401 U.S. 815, 830-31 (1971). Absent some 
  government dispensation, an immigrant who surr eptitiously 
  enters a nation without its authorization cannot obtain 
  official resident status no matter his length of stay, his 
  intent, or the extent of the familial and economic 
  connections he develops. Citizenship or permanent 
  residency cannot be gained through adverse possession. 
  With this understanding of the factors under girding the 
  firm resettlement inquiry in mind, we turn to the BIA's 
  decision in the instant matter. 
  _________________________________________________________________ 
   evidence of firm resettlement. Specifically, the court fashioned a 
  rebuttable presumption of firm r esettlement based on the aliens' length 
  of stay: 
          
        Three years of peaceful residence established that the ground of 
         `firm resettlement' in Malaysia might apply . . . . That was enough 
         time so that, in the absence of evidence to the contrary, it would  
  be 
         a reasonable inference from the duration that Malaysia allowed the 
         Cheos to stay indefinitely. 
   
 Id.    
                                   
                                 16 

 IV. Abdille's Firm Resettlement in South Africa 
   
 A. 
   
 It appears that the BIA, in reaching the conclusion that 
  the firm resettlement bar precluded the INS from granting 
  Abdille asylum from Somalia, relied in part on what it 
  considered to be an offer made by the South African 
  government to Abdille of some type of per manent 
  resettlement. In seeking to make its prima facie showing of 
  firm resettlement, the INS intr oduced evidence of two South 
  African government documents approving Abdille's 
  application for asylum in that country, both contained in 
  the Certified Administrative Record. Thefirst record is a 
  Certificate of Exemption entitling Abdille to asylum under 
  South Africa's Aliens Control Act of 1991 for a two-year 
  period of exemption commencing on June 25, 1998 and 
  ending on June 24, 2000. The second is a letter fr om South 
  Africa's Department of Home Affairs addr essed to Abdille 
  discussing Abdille's obligations at the conclusion of this 
  two-year refugee period: 
          
        Please note, however, that if at the end of the period of 
         exemption [i.e., June 24, 2000], you do not wish to 
         leave [South Africa], the onus rests on you to contact 
         the Department for the reviewal of your r efugee status 
         or to otherwise legalise your continued stay in[South 
         Africa] before the expiry date of your Certificate. Failure 
         to do so may render you liable to prosecution in terms 
         of the provisions of the Aliens Control Act, 1991 (Act 
         96 of 1991). 
   
 Although the BIA acknowledged that the Certificate of 
  Exemption conferring refugee status on Abdille would 
  expire after a two-year term, it nonetheless concluded that 
  the issuance of this certificate repr esented an offer of some 
  type of permanent resettlement within the meaning of 8 
  C.F.R. S 208.15's firm r esettlement definition because, 
  according to the BIA's reading of the Department of Home 
  Affairs letter, Abdille's refugee status "does not simply 
  terminate" at the end of the two-year exemption period. 
  Looking at those two documents, the BIA deter mined that 
                                   
                                 17 

 the firm resettlement bar applied to Abdille, requiring the 
  INS to deny Abdille's asylum application.9  
   
 We cannot say, however, that the two documents 
  describing Abdille's refugee status under South African law 
  constitute substantial evidence supporting the conclusion 
  that the government of South Africa granted Abdille an offer 
  of some other type of permanent resettlement. If anything, 
  these records compel the contrary conclusion--i.e., that 
  such an offer of resettlement was, by its terms, only 
  temporary in nature. As is evident from the face of the 
  Certificate of Exemption, South Africa's of fer to Abdille of 
  asylum status (and Abdille's acceptance of that of fer) 
  carried with it an explicit termination date: Abdille's legal 
  right to reside in South Africa as a refugee exempt from 
  certain provisions of the Aliens Control Act of 1991 would 
  end on June 24, 2000. Furthermore, the Department of 
  Home Affairs letter to Abdille makes clear that, absent 
  further action on Abdille's part, he would be subject to 
  prosecution under South African law should he choose to 
  remain in South Africa after the expiration of the two-year 
  exemption period on June 24, 2000. Given this plain 
  language, we are hard-pressed to see how these documents 
  lend support to the BIA's conclusion that Abdille's refugee 
  status "does not simply terminate" on June 24, 2000, and 
  was in fact of a more permanent natur e. 
   
 We acknowledge, however, that we lack familiarity with 
  the intricacies of South African immigration law. While the 
  _________________________________________________________________ 
   9. The BIA's opinion mentions other non-of fer-based factors such as the 
  fact that Abdille was issued a travel document granting him the right to 
  re-enter South Africa after trips abroad; had the opportunity and ability 
  to rent a private home in Cape Town; and had the opportunity to work 
  as an electrician if certified. However, fr om the language of the BIA's 
  decision, it does not appear that the BIA employed these factors in 
  connection with its determination that Abdille had received an offer of 
  some other type of permanent resettlement from South Africa. Rather, 
  the BIA's opinion demonstrates that it employed these factors to 
  conclude that South Africa did not substantially and consciously restrict 
  the conditions of Abdille's residence, and thus to reject Abdille's  
  attempt 
  to rely on the firm resettlement exception contained in S 208.15(b). On 
  appeal, Abdille does not challenge the BIA's finding with regard to that 
  exception. 
                                   
                                 18 

 information contained in the Certificate of Exemption and 
  the Department of Home Affairs letter to Abdille strongly 
  suggests that the grant of refugee status for afixed term of 
  two years is something short of an offer of some other type 
  of permanent resettlement, it may be true that under the 
  relevant provisions of South African immigration law, or the 
  application of that law in practice, a refugee's two-year 
  exemption period will often mature into a mor e permanent 
  status. For instance, it may be that provisions of the Aliens 
  Control Act ease the burden on an alien applying for official 
  permanent resident status if that alien has already received 
  asylum, or that, as a matter of immigration practice, two- 
  year refugees like Abdille routinely r eceive a form of 
  permanent status if they apply for such status prior to the 
  expiration of the two-year exemption period. The Certified 
  Administrative Record is completely silent on these points, 
  however, and at this stage, in the absence of further 
  evidence, reliance on these contingencies would amount to 
  nothing more than mere speculation. 
   
 The BIA's decision in Matter of D-L- & A-M-, 20 I. & N. 
  Dec. 409 (BIA 1991), is instructive in this r egard. In D-L- & 
  A-M-, the BIA found that two Cuban natives seeking asylum 
  from that country had firmly resettled in Spain, where they 
  had spent six years prior to their entry into the United 
  States. See id. at 414. In reaching this conclusion, the 
  Board appropriately focused on the Spanish government's 
  official recognition of the aliens' legal right to reside in that 
  country. Specifically, the BIA noted that the aliens had 
  received official temporary resident status that was 
  renewable each year, and, importantly, that this temporary 
  residency could be converted to permanent residency once 
  one of the aliens obtained a work contract. See id. at 411, 
  414. This latter point was established through the cross- 
  examination testimony of one of the aliens in hearings 
  before the INS. See id. at 411. In the instant matter, the 
  proceedings on remand may very well yield similar evidence 
  of the likelihood that Abdille's fixed, two-year r efugee term 
  in South Africa will be converted into a mor e permanent 
  status. 
                                   
                                 19 
   
 B. 
   
 As the foregoing discussion demonstrates, pr oper 
  resolution of the firm resettlement issue requires further 
  information as to the content of South African immigration 
  law and practice. Given the limited nature of the record 
  before us on appeal, and the considerable defer ence we owe 
  to the INS in immigration matters, we believe it improper 
  for us to settle the firm resettlement question based on our 
  hypotheses regarding the type of contingencies that could 
  have occurred at the end of Abdille's two-year exemption 
  period under the terms of the Aliens Contr ol Act or its 
  practical applications.10 Accor dingly, we consider it 
  necessary to grant Abdille's Petition for Review and to 
  remand, so that the BIA may further investigate the content 
  of South African immigration law and practice in general, 
  and may resolve the specific question whether , under South 
  African refugee law and practice, the issuance of a 
  Certificate of Exemption granting an alien r efugee status for 
  _________________________________________________________________ 
   
 10. Moreover, we do not believe that the circumstances are appropriate 
  for us to take judicial notice of the content of South African law on this 
  appeal. In general, foreign law is treated as a fact that must be proven 
  by the parties. See, e.g., Black Diamond Steamship Corp. v. Robert 
  Stewart & Sons, 336 U.S. 386, 397 (1949) ("[T]he Court has adhered to 
  the general principle that foreign law is to be proved as a fact."); 
  Intercontinental Trading Co., Inc. v. M/V Zenit Sun, 684 F. Supp. 861, 
  864 (E.D. Pa. 1988) ("No proof having been presented at trial as to 
  Chilean law, the court cannot take judicial notice of the law of Chile 
  . . . ."). Although federal courts have discr etionary authority to  
  judicially 
  notice the laws of foreign countries pursuant to the fact-finding 
  procedure contained in Fed. R. Civ. Pr o. 44.1, see 1 Jack B. Weinstein 
  & Margaret A. Berger, Weinstein's Federal Evidence S 201.52[3][b], at 
  201-94 (Joseph M. McLaughlin ed., 2d ed. 2000); see also Sidali v. INS, 
  107 F.3d 191, 197 n.9 (3d Cir. 1997), because such a procedure was not 
  followed in the instant matter, we will r efrain from judicially noticing  
  the 
  content of South African refugee law. 
   
 We did conduct a preliminary investigation into South African law, to 
  see whether an issue existed with respect to the consequences that 
  Abdille would experience under South African immigration law and 
  practice upon the expiration of his two-year r efugee period. The 
  information we obtained suggested that such an issue did exist, and we 
  therefore concluded that remand to the BIA was the appropriate avenue 
  for resolution of that issue. We did not use the information we gathered 
  except in this preliminary fashion, and, as noted above, we decline to 
  judicially notice it. 
                                   
                                 20 

 a fixed two-year term amounted to an of fer of some other 
  type of permanent resettlement within the meaning of 
  S 208.15. On remand, both Abdille and the INS should be 
  afforded an opportunity to supplement the record by 
  presenting evidence bearing on these issues. Of course, we 
  express no opinion as to the proper r esolution of the 
  question whether Abdille had firmly r esettled in South 
  Africa.11 
   
 V. The Burden of Proof as to the Content of 
  South African Law 
   
 Because the substance of South African immigration law 
  will prove highly relevant to the final disposition of the firm 
  resettlement issue, and in the interest of providing some 
  further guidance on remand, we need to consider the issue 
  of which party--Abdille or the government--will bear the 
  burden of establishing the content of South African law on 
  remand. We note in this regar d that in our discussion 
  above, we implicitly addressed part of this bur den 
  allocation issue when we referenced the government's 
  burden to make the prima facie showing of fir m 
  resettlement. We now make this discussion explicit. 
   
 Although this precise issue was not addr essed by the 
  BIA's decision in Abdille's matter, a long line of BIA case 
  law establishes that "[f]oreign law is a matter to be proven 
  by the party seeking to rely on it." Matter of Soleimani, 20 
  I. & N. Dec. 99, 106 (BIA 1989). Ordinarily, it is the asylum 
  applicant who seeks the benefit of foreign law, and thus 
  carries the burden of demonstrating its content. See, e.g., 
  Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994) 
  _________________________________________________________________ 
   11. On appeal, Abdille argues in the alter native that the BIA's finding  
  of 
  firm resettlement in South Africa was erroneous because Abdille fell 
  within one of the two exceptions to the fir m resettlement bar contained 
  in 8 C.F.R. S 208.15--i.e., he established "[t]hat his or her entry into  
  that 
  nation was a necessary consequence of his or herflight from 
  persecution, that he or she remained in that nation only as long as was 
  necessary to arrange onward travel, and that he or she did not establish 
  significant ties in that nation." 8 C.F .R. S 208.15(a) (2000). Because we 
  remand to the BIA for further proceedings in connection with the firm 
  resettlement issue, we will not address the merits of Abdille's contention. 
                                   
                                 21 

 ("Placing the burden of proving for eign law on a petitioner 
  is consistent with the general rule that the petitioner bears 
  the burden of proof "); Matter of Annang, 14 I. & N. Dec. 
  502, 503 (BIA 1973) ("[T]he law of a for eign country is a 
  question of fact which must be proved by the petitioner if 
  he relies on it to establish eligibility for an immigration 
  benefit."). 
   
 The BIA, however, has had occasion to apply this rule in 
  order to place burdens on the gover nment. In Soleimani, 
  the immigration judge found that an Iranian Jew hadfirmly 
  resettled in Israel, relying principally on the assumption 
  that, because Israel's Law of Return granted all members of 
  the Jewish faith the right to Israeli citizenship, it was 
  probable that the alien had received an of fer of resident 
  status, citizenship, or some other type of per manent 
  resettlement from the Israeli gover nment. See 20 I. & N. 
  Dec. at 102. Observing that the record contained no 
  evidence "documenting the nature and purpose of Israel's 
  Law of Return or the specific provisions of that law," the 
  BIA reversed the immigration judge's finding on the ground 
  that "[f]oreign law is a matter to be pr oven by the party 
  seeking to rely on it, and the Immigration and 
  Naturalization Service has submitted nothing of r ecord 
  regarding Israel's Law of Return." Id. at 106. 
   
 The rule that foreign law is a matter to be pr oven by the 
  party seeking to rely on it must, at all events, be read in 
  conjunction with the INS regulations establishing the 
  general burden of proof allocation with r espect to the firm 
  resettlement issue. The pertinent regulatory provision is 8 
  C.F.R. S 208.13(c)(2)(ii), which states the following: "If the 
  evidence indicates that one of the above gr ounds [including 
  the firm resettlement bar] apply to the applicant, he or she 
  shall have the burden of proving by a pr eponderance of the 
  evidence that he or she did not so act." 8 C.F .R. 
  S 208.13(c)(2)(ii) (2000) (emphasis added). 12 The burden 
  _________________________________________________________________ 
   12. As a formal matter, we note that, by its terms, the burden scheme 
  contemplated in 8 C.F.R. S 208(c)(2)(ii) applies only to firm resettlement 
  bar contained in 8 C.F.R. S 208(c)(2)(i)(B), which itself applies only to 
  asylum applications filed before April 1, 1997. Abdille's application was 
  filed after April 1, 1997, and thus the fir m resettlement bar applicable  
  to 
                                   
                                 22 
  
 allocation regarding firm r esettlement is thus evident from 
  the language of S 208.13(c)(2)(ii). Under the regulations, the 
  INS bears the initial burden of producing evidence that 
  indicates that the firm resettlement bar applies, and, 
  should the INS satisfy this threshold bur den of production, 
  both the burden of production and the risk of non- 
  persuasion then shift to the applicant to demonstrate, by a 
  preponderance of the evidence, that he or she had not 
  firmly resettled in another country. See, e.g., Mussie v. INS, 
  172 F.3d 329, 332 (4th Cir. 1999) (applying the 
  S 208.13(c)(2)(ii) burden framework, and noting that "[o]nce 
  the INS met its burden of introducing some evidence 
  indicating that [the applicant] had been `firmly resettled' in 
  Germany, [the applicant] bore the burden of demonstrating, 
  by a preponderance of the evidence, that she had not been 
  resettled"); see also Abdalla v. INS, 43 F.3d 1397, 1399 
  (10th Cir. 1994) ("Once the government presents some 
  evidence indicating that asylum is unavailable on gr ounds 
  of firm resettlement . . . the petitioner bears the burden of 
  proving by a preponderance of the evidence that such 
  grounds do not apply.") (citations and inter nal quotation 
  marks omitted); Chinese American Civil Council v. Attorney 
  General, 566 F.2d 321, 328 n.18 (D.C. Cir . 1977) 
  ("Resettlement is largely a factual question which, once that 
  fact appears of record, the applicants bear the burden of 
  overcoming."). 
   
 We conclude that the burden allocation scheme 
  established by the applicable INS regulations is controlling. 
  Both the INS and Abdille may, at differ ent points in the 
  immigration proceeding, constitute parties seeking to rely 
  on foreign law and, under the regime cr eated by the 
  regulations, both may consequently bear the bur den of 
  producing evidence of the substance of South African 
  immigration law and practice. Specifically, the INS will 
 _________________________________________________________________ 
   his case is found not in the INS regulations, but rather in the federal 
  asylum statute, at 8 U.S.C. S 1158(b)(2)(A)(vi). See supra note 4 and 
  accompanying text. Nonetheless, we find no r eason to believe that 
  Congress, by codifying the firm r esettlement bar, intended to alter the 
  burden scheme contained in 8 C.F.R.S 208.13(c)(2)(ii) and, accordingly, 
  will apply that scheme to Abdille's case. 
                                   
                                 23 
   
 clearly carry the initial burden of setting forth evidence that 
  "indicates" that Abdille had firmly r esettled in South Africa, 
  and, to the extent that the INS relies on pr ovisions of South 
  African law--e.g. asylum provisions found in the Aliens 
  Control Act--to demonstrate that the South African 
  government granted Abdille "an offer of permanent resident 
  status, citizenship, or some other type of per manent 
  resettlement" within the meaning of 8 C.F .R. S 208.15's firm 
  resettlement definition, it will thus carry the burden of 
  setting forth evidence of the substance of that law. 
   
 Should the INS meet this threshold burden of production, 
  however, the burden of introducing evidence to overcome 
  the firm resettlement finding would shift to Abdille, the 
  asylum applicant. If Abdille then seeks to use the 
  substance of South African law to rebut thefirm 
  resettlement finding--e.g., by pointing to particular 
  provisions of the Aliens Control Act thatfix the term of 
  refugee status to two years in order to r ebut the suggestion 
  that he was issued an offer of permanent resettlement-- 
  Abdille will carry the burden of setting forth the relevant 
  content of South African immigration law and practice. 
  Moreover, as contemplated in S 208.13(c)(2)(ii)'s allocation 
  scheme, once the government carries its bur den of 
  production by setting forth evidence that "indicates" that 
  firm resettlement has occurred, Abdille also bears the 
  ultimate burden of persuasion. That is, insofar as Abdille 
  relies on provisions of South African law to defeat the firm 
  resettlement bar, he must prove by a preponderance of the 
  evidence that those provisions render thefirm resettlement 
  bar inapplicable to his case. 
   
 VI. Asylum from South Africa 
   
 The BIA rejected Abdille's request for asylum from South 
  Africa based on the attacks and the alleged harassment he 
  experienced during his ten months in that country. As 
  discussed supra in Part II, to be eligible for asylum in the 
  United States as a refugee, an alien must demonstrate 
  "persecution or a well-founded fear of persecution on 
  account of race, religion, nationality, membership in a 
  particular social group, or political opinion." 8 U.S.C. 
  S 1101(a)(42)(A). The BIA agreed with the IJ that Abdille had 
                                   
                                 24 

 failed to carry his burden with respect to establishing either 
  past persecution or a well-founded fear of futur e 
  persecution. Because this issue was squarely pr esented in 
  Abdille's Petition for Review and was fully ar gued, and 
  because the question whether Abdille experienced 
  persecution or a well-founded fear of persecution is 
  independent of the question whether Abdille wasfirmly 
  resettled in that country, we do not believe that remand of 
  this issue to the BIA is warranted. We ther efore proceed to 
  the merits. In light of the deference we owe to the BIA's 
  factual findings under the standard of r eview established in 
  INS v. Elias-Zacarias, 502 U.S. 478 (1992), and for the 
  reasons that follow, we cannot say that the r ecord evidence 
  compels a conclusion contrary to the BIA's and, 
  accordingly, we decide that the BIA's decision with respect 
  to Abdille's request for asylum from South Africa must 
  stand. 
   
 A. 
   
 Abdille first argues that the BIA's deter mination that 
  Abdille had not established past persecution was not 
  supported by the record evidence. Under 8 C.F.R. 
  S 208.13(b)(1) (2000), 
          
        [a]n applicant shall be found to be a r efugee on the 
         basis of past persecution if he or she can establish that 
         he or she has suffered persecution in the past in his or 
         her country of . . . last habitual residence on account 
         of race, religion, nationality, membership in a 
         particular social group, or political opinion, and that he 
         or she is unable or unwilling to return to or avail 
         himself or herself of the protection of that country 
         owing to such persecution. 
   
 Abdille's claim of persecution in South Africa does not arise 
  out of any official action or policy instituted by the South 
  African government. Rather, Abdille alleges persecution at 
  the hands of private groups of attackers that the South 
  African government was either unable or unwilling to 
  control. See Singh v. INS, 94 F .3d 1353, 1360 (9th Cir. 
  1996) ("Persecution meted out by groups that the 
  government is unable or unwilling to contr ol constitutes 
                                   
                                 25 

 persecution under the [Immigration and Nationality] Act. 
  Non-governmental groups need not file articles of 
  incorporation before they can be capable of persecution.") 
  (citation omitted). 
   
 To establish past persecution, Abdille set forth evidence 
  establishing that he had suffered individualized attacks, 
  coupled with documentary evidence attempting to link his 
  personal experiences of harassment and violence with the 
  experiences of other similarly situated Somali and African 
  refugees living in South Africa. Abdille's individualized 
  evidence, primarily testimonial in nature, demonstrated 
  that Abdille had suffered two separate attacks while 
  working as a street vendor in public marketplaces in Cape 
  Town. The first occurred in July 1998, when a group of five 
  or six South Africans assaulted Abdille, knocking him 
  unconscious and stealing his merchandise. Abdille went to 
  the police station to make a report concer ning the incident, 
  but the officers told him to return at a later time.13 The 
  second attack took place five months later , when a different 
  group attacked Abdille in a separate market. Abdille fled 
  before he could be injured, but the gr oup did steal all of his 
  goods. 
   
 Abdille's documentary evidence, consisting of r eports on 
  South Africa issued by human rights groups and 
  newspaper stories printed in South African newspapers, 
  described in general the xenophobic attitudes taken by 
  South African citizens and politicians towar d African 
  immigrants, and specifically identified instances of violent 
  acts committed against foreigners, including foreign street 
  vendors working in cities such as Cape Town. Among the 
  _________________________________________________________________ 
   
 13. The Certified Administrative Record is unclear as to whether Abdille 
  did in fact return to the police station to prosecute his claim. In 
  proceedings before the IJ, Abdille testified on direct examination that 
  after he reported the July 1998 attack to the police, "they told me every 
  day come back, come back and they haven't did anything for me," 
  suggesting that Abdille did make subsequent visits that were ultimately 
  unavailing. On the other hand, while being cr oss-examined by the INS 
  concerning this first police report, Abdille appeared to concede that he 
  did not in fact return to the station:"I never went back that day but are 
  there [sic] more than 10 times they say come back and they didn't do 
  anything for me." 
                                   
                                 26 

 most pertinent such documents contained in the Certified 
  Administrative Record are: (1) a Mar ch 1998 report issued 
  by Human Rights Watch; (2) a December 1998 r eport put 
  forth by the South African Human Rights Commission; and 
  (3) two stories from the August 6, 1998 issue of Cape 
  Times, a Cape Town newspaper. The Human Rights Watch 
  and South African Human Rights Commission reports 
  document harassment of street vendors similar to that 
  experienced by Abdille.14 
   
 The BIA, after noting that Abdille had "intr oduced 
  evidence of criminal behavior by private individuals in 
  South Africa and disturbing documentary evidence of 
  xenophobia in South Africa," concluded that Abdille had 
  failed to sufficiently establish past persecution on account 
  _________________________________________________________________ 
   
 14. The Human Rights Watch report, titled "Prohibited Persons: Abuse of 
  Undocumented Migrants, Asylum-Seekers, and Refugees in South 
  Africa," contains the following passage: 
          
        Foreign hawkers, often asylum applicants with temporary residence 
         permits, have repeatedly been the tar gets of violent protests and 
         other forms of intimidation as local hawkers attempt to "clean the 
         streets of foreigners." During r epeated violent protests in 
         Johannesburg, South African traders and or dinary criminals have 
         brutally beaten foreign hawkers, and stolen their goods. Hawkers 
         interviewed by Human Rights Watch who wer e the targets of such 
         abuse universally complained to us that the police had done little  
  or 
         nothing in response to their complaints. . . . Human Rights Watch 
         interviewed members of a large community of Somali asylum- 
         seekers who had been forced to abandon their trade and who told 
         Human Rights Watch that they now never left their overcrowded and 
         impoverished compound unless they were in a lar ge group, in order 
         to protect themselves from attacks by hostile "locals." 
   
 A similar account of violence against foreign street vendors appears in 
  the South African Human Rights Commission's r eport, titled "1999 Plan 
  of Action: Roll Back Xenophobia Campaign": 
          
        Vigilante groups have vowed to clear for eign traders off the  
  streets 
         of Johannesburg, Port Elizabeth and Cape T own. They inflame 
         public opinion with the perception that for eign traders take away 
         jobs from locals by unfairly competing for customers, space and 
         markets. As part of ongoing, hostile campaigns, mobs are raiding 
         foreign hawkers, often causing bodily har m, vandalising their  
  stalls 
         and stealing their goods. 
                                   
                                 27 
   
 of one of the five protected factors listed in the statutory 
  definition of refugee, because he could not demonstrate 
  that the violence he suffered was perpetrated by persons 
  that the government was unwilling or unable to control. To 
  buttress this conclusion, the BIA pointed to the fact that 
  there was no evidence that Abdille was harassed or 
  disturbed in Johannesburg during his thr ee-week stay 
  there; that the two attacks Abdille experienced were 
  committed by two separate groups of people; that Abdille 
  could not identify his assailants; and that after r eporting 
  the attacks to the police, Abdille failed to pr osecute these 
  charges by returning to the station, as requested by the 
  police.15 
  _________________________________________________________________ 
   
 15. The BIA does not appear entirely corr ect with respect to the latter 
  two points. The BIA's claim that Abdille could not identify his assailants 
  is partially undermined by Abdille's testimony before the IJ concerning 
  his response to the first attack in July 1998: "When I went down [to] the 
  police station, . . . I told them I even know the people who attack me 
  because some of them they collect the money in the bus station where 
  I sell my merchandise." The INS concedes that Abdille could identify the 
  perpetrators of this first assault. The recor d appears silent on the  
  issue 
  of whether Abdille could identify the December 1998 attackers. 
   
 With respect to the BIA's assertion that Abdille failed to return to the 
  police station following his reports of the attack, as directed, the  
  record 
  is not as clear as the BIA appears to assume. As mentioned supra in 
  note 13, the evidence is ambiguous as to whether Abdille visited the 
  police station after reporting the first attack. With regard to the second 
  assault, Abdille testified that he reported the incident to the police,  
  and 
  "[t]hey said they make appointment and they told me come back 
  tomorrow." The record is silent as to whether Abdille returned the next 
  day as instructed. 
   
 Although the BIA's characterization of the r ecord evidence may not 
  have fully accomodated these ambiguities in the r ecord, such error does 
  not ultimately affect our decision to uphold the BIA's denial of Abdille's 
  request for asylum from South Africa. For the reasons stated in the text 
  above, the evidence Abdille did introduce to establish past persecution 
  and a well-founded fear of persecution simply does not compel a 
  conclusion contrary to the BIA's, even if we discount the evidence 
  supporting the BIA's determination so as to take account of its failure to 
  recognize either the fact that Abdille could identify the perpetrators of 
  the first assault, or that Abdille may have made some effort to follow up 
  on his report of the first incident to the police. 
                                   
                                 28 

 To be sure, the record evidence put forth by Abdille is 
  consistent with his theory of persecution. Abdille's 
  testimony demonstrates that he experienced individualized 
  harassment, and the documentary evidence rescribed in the 
  margin, supra at note 14, tends to show that these attacks 
  could have been the product of a more generalized animus 
  among segments of the South African public dir ected at 
  foreign asylum seekers, particularly those r efugees working 
  as street vendors in cities like Cape T own. Furthermore, 
  Abdille's testimony concerning the police's lackadaisical 
  responses to his reports is in accor d with descriptions 
  found in the human rights reports introduced by Abdille of 
  police inaction in the face of private violence against foreign 
  street vendors. 
   
 However, the evidence put forth by Abdille is also 
  consistent with acts of private violence that fall short of 
  persecution on account of race, nationality, or membership 
  in a particular social group. The assaults experienced by 
  Abdille at the hands of two different sets of assailants could 
  represent random street violence, motivated not by 
  animosity against a particular ethnic group, but rather by 
  arbitrary hostility or by a desire to r eap financial rewards. 
  Such ordinary criminal activity does not rise to the level of 
  persecution necessary to establish eligibility for asylum. 
  See, e.g., Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) 
  ("Mere generalized lawlessness and violence between diverse 
  populations, of the sort which abounds in numer ous 
  countries and inflicts misery upon millions of innocent 
  people daily around the world, generally is not sufficient to 
  permit the Attorney General to grant asylum . . . ."); 
  Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) 
  ("[P]ersecution on account of political opinion no longer can 
  be inferred merely from acts of random violence . . . ."). It 
  is also important to note that Abdille was not har med in 
  South Africa except when he was engaged in vending 
  activities in public marketplaces. 
   
 In an attempt to establish that he was the victim of 
  persecution, and not just the target of or dinary street 
  violence, Abdille asserts that his situation is identical to the 
  one found in the BIA's recent decision in In re O-Z- & I-Z-, 
  Int. Dec. No. 3346, 1998 WL 177674 (BIA Apr. 2, 1998), in 
                                   
                                 29 

 which the BIA concluded that acts of harassment 
  committed by the "Rukh," a pro Ukranian independence 
  group, against a Jewish Ukrainian citizen who advocated 
  unification with Russia, rose to the level of persecution. 
  What Abdille fails to explain, however, is that the record 
  evidence in O-Z- & I-Z- made readily apparent the fact that 
  the "Rukh" assailants were motivated by a desire to 
  penalize the victim's religion. For example, the evidence 
  showed that anti-Semitic leaflets distributed by the "Rukh" 
  were left in the victim's clothing and at his home; that the 
  victim suffered two assaults resulting in physical injuries 
  while on his way home from work and at a bus stop near 
  his home, during which anti-Semitic remarks wer e directed 
  at him; and that the victim's son suffer ed physical and 
  verbal abuse at school as a result of his Jewish 
  background. In contrast to the direct pr oof of ubiquitous 
  religion-based animus presented by the asylum applicant in 
  O-Z- & L-Z-, in the proceedings befor e the IJ, Abdille offered 
  no such comparable evidence, relying instead on 
  descriptions of a generalized climate of hostility in South 
  Africa toward African refugees and for eign street vendors 
  found in human rights groups' reports and newspaper 
  articles. 
   
 Aside from such documentary evidence, Abdille furnished 
  no evidence demonstrating that the two attacks he 
  experienced in July and December of 1998 wer e not mere 
  acts of random lawlessness, but rather were perpetrated on 
  account of his race, nationality, or membership in a 
  particular social group. Such tenuous evidence may 
  support an inference that the assaults Abdille suffered rose 
  to the level of persecution, but it does not compel such a 
  conclusion. Accordingly, given our defer ential review, the 
  BIA's decision as to past persecution must stand. 
   
 B. 
   
 Abdille also avers that the BIA's determination that 
  Abdille failed to establish a well-founded fear of persecution 
  was not supported by record evidence. Under 8 C.F.R. 
  S 208.13(b)(2) (2000), 
          
        [a]n applicant shall be found to have a well-founded 
         fear of persecution if he or she can establish first, that 
                                   
                                 30 
   
        he or she has a fear of persecution in his or her 
         country of . . . last habitual residence on account of 
         race, religion, nationality, membership in a particular 
         social group, or political opinion; second, that there is 
         a reasonable possibility of suffering such persecution if 
         he or she were to return to that country; and third, 
         that he or she is unable or unwilling to retur n to or 
         avail himself or herself of the protection of that country 
         because of such fear. 
   
 Establishing a well-founded fear of persecution does not 
  require the alien to demonstrate that persecution is more 
  likely than not to occur; rather, fear of persecution "can be 
  well-founded even `when there is a less than 50% chance of 
  the occurrence taking place.' " Chang v. INS, 119 F.3d 
  1055, 1066 (3d Cir. 1997) (quoting INS v. Cardozo-Fonseca, 
  480 U.S. 421, 431 (1987)). 
   
 Furthermore, the demonstration of a well-founded fear of 
  persecution carries both a subjective and an objective 
  component. The alien must "show that he has a subjective 
  fear of persecution that is supported by objective evidence 
  that persecution is a reasonable possibility." Id. There is no 
  question that Abdille's fear of future persecution in the 
  event of a return to South Africa is subjectively genuine; 
  the only issue is whether that subjective state of mind is 
  buttressed by objective evidence that a r easonable person 
  in Abdille's circumstances would also fear persecution. 
   
 In reaching its conclusion that Abdille had not 
  established a well-founded fear of future persecution, the 
  BIA relied primarily on the fact that Abdille had failed to 
  establish that his fear of persecution exists country-wide, 
  and is not confined solely to the Cape Town area. The 
  requirement of demonstrating a country-wide fear of 
  persecution is evident from the BIA's r ecent decision in In 
  re C-A-L-, Int. Dec. No. 3305, 1997 WL 80985 (BIA Feb. 21, 
  1997), in which a Guatemalan citizen and for mer soldier 
  who had participated in missions against the guerrillas 
  operating in that country sought asylum from Guatemala, 
  claiming that he feared that guerrilla gr oups would 
  persecute him due to his past military service against them. 
  The BIA rejected the applicant's asylum claim, on the 
  ground that documentary evidence demonstrated that 
                                   
                                 31 
     
 guerrilla activity in Guatemala was localized in particular 
  regions of the country; that the evidence of guerilla activity 
  specifically targeting the soldier showed that such activity 
  was confined to the soldier's hometown; and that the 
  applicant had acknowledged that he had been able to move 
  to and live in other regions of Guatemala without incident. 
  Stating that "an alien seeking to meet the definition of a 
  refugee must do more than show a well-founded fear of 
  persecution in a particular place within a country," the BIA 
  concluded that the applicant's "asylum claim must. . . be 
  denied because he has not provided any convincing 
  evidence to suggest that his fear of persecution would exist 
  throughout Guatemala." 
   
 Further, in Etugh v. INS, 921 F .2d 36 (3d Cir. 1990), we 
  employed an almost identical analysis in a case involving a 
  Nigerian citizen seeking asylum from his native country. 
  The applicant claimed that he feared persecution upon 
  return to Nigeria, due to factional fighting between 
  residents of his hometown Akirika and townspeople in the 
  nearly village of Abala. See id. at 37. The BIA had 
  concluded that the applicant had failed to make the 
  requisite prima facie showing of a well-founded fear, in part 
  because he had not established that his safety would be 
  threatened in parts of Nigeria outside of Akirika. We agreed, 
  stating that the applicant "failed to allege[that] he would be 
  persecuted beyond the local vicinity of his hometown, 
  Akirika" and that "deportation would not r equire [the 
  applicant] to return to the purportedly dangerous region of 
  Nigeria where he formerly lived." Id. at 39. 
   
 Abdille claims that the record evidence supports a fear of 
  persecution throughout South Africa. Having examined the 
  exhibits in the Certified Administrative Recor d, we cannot 
  agree. By and large, the majority of Abdille's evidence--and 
  certainly the most probative items--focused on harassment 
  and violence only in the Cape Town region of South Africa, 
  which contains but a small part of the country's 
  population. Acts of past persecution suffer ed by an alien 
  are often the best objective evidence supporting the 
  applicant's fear of future persecution, cf.  208.13(b)(1)(i) ("If 
  it is determined that the applicant has established past 
  persecution, he or she shall be presumed also to have a 
                                   
                                 32 
   
 well-founded fear of persecution . . . ."), but the 
  individualized acts of persecution Abdille claims to have 
  experienced occurred only in Cape Town, and only at times 
  Abdille was working as a street vendor selling goods in 
  public marketplaces. 
   
 Moreover, as suggested above, the r ecord contains no 
  evidence indicating that after Abdille moved to 
  Johannesburg in January 1999, his three-week stay there 
  was disturbed, and, more importantly, Abdille admitted 
  that he never attempted to live in any region of South Africa 
  other than Cape Town and Johannesburg. Finally, the most 
  pertinent pieces of documentary evidence--i.e., those 
  reports relating attacks on foreign street vendors, rescribed 
  supra in note 14--describe such assaults as occurring in 
  areas around the cities of Cape Town, Port Elizabeth, and 
  Johannesburg; they do not mention whether similar anti- 
  foreigner campaigns exist in other regions of South Africa. 
  Under Elias-Zacarias's deferential standard, we cannot say 
  that such evidence compels a conclusion contrary to the 
  BIA's determination that Abdille failed to establish a well- 
  founded fear of persecution. Accordingly, the BIA's decision 
  as to Abdille's well-founded fear must stand. 
   
 VII. Conclusion 
   
 We conclude that the BIA's consideration of the question 
  whether Abdille received an offer of some type of permanent 
  resettlement from the South African gover nment was 
  incomplete. We will therefore grant Abdille's Petition for 
  Review, and remand to the BIA for investigation into the 
  content of South African immigration law and practice, for 
  resolution of the question whether Abdille r eceived an offer 
  of some type of permanent resettlement, and for such 
  further proceedings as are necessary to determine Abdille's 
  immigration status. However, we also conclude that the BIA 
  did not err in denying Abdille asylum from South Africa on 
  the ground that he failed to make the r equisite showing of 
  past persecution or a well-founded fear of persecution, and 
  deny the Petition for Review to that extent. 
                                   
                                 33 

 A True Copy: 
  Teste: 
          
        Clerk of the United States Court of Appeals 
         for the Third Circuit 
                                   
                                 34 


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