Lived in a Third Country? When Being Firmly Resettled Bars Your Right to Asylum in the U.S.

What does the term "firmly resettled" mean, given that many people pass through other countries when fleeing their own, and might even stay there awhile before entering the United States to seek asylum?

By , J.D. · University of Washington School of Law

A person is barred from receiving asylum in the U.S. if an immigration judge or asylum officer finds that they were already firmly resettled in another country (neither their home country nor the United States).

When you complete the Form I-589 application for asylum, it will ask you whether you have ever traveled through or resided in another country (besides the one where you were persecuted, and from which you are requesting protection) before coming to the United States. It will also ask whether you've ever applied for residence or asylum in any other country besides the United States.

The reason for these questions goes back to the firm-resettlement bar. But what does the legal term "firmly resettled" really mean? Many people pass through other countries when fleeing their own, and might even stay there awhile before entering the United States.

What Turns One's Time in a Third Country Into "Resettlement"

Simply passing through another country on your way to the U.S. is not enough to warrant a refusal of asylum; nor spending longer there, if it didn't lead to any legal right to remain.

USCIS and the Department of Homeland Security (DHS) are primarily interested in whether you could have applied for asylum or other immigration status in the third country or whether you have a right to live there now, perhaps because of a previous asylum or other immigration application.

Only if you have or were offered some type of permanent status while in a country you spent time in before arriving in the U.S. (such as citizenship, or the equivalent of permanent residence or a green card, or some other status that allows an indefinite stay) and you refused it will you be barred from receiving asylum in the United States. If you did not apply for asylum or any status in countries where you temporarily stayed, the immigration judge or asylum officer reviewing your case should not find that you were firmly resettled there. (Some applicants have attempted to lie about this, pretending they weren't offered the right to live in the country, but the U.S. government routinely checks with the home government on such matters.)

You might explain to the judge or asylum officer that your plan was always to come to the United States, and that you stayed in other countries for only as long as you had to, until you could continue to your final destination. The longer someone's stay, the more likely the asylum officer or immigration judge is to question whether they did, in fact, receive some sort of status there. Unfortunately, the fact that your long stay was due to U.S. border restrictions (as has been the case for many asylum seekers who got stuck in Mexico) will not help your case.

It would also help if you did not have any significant ties to the countries in which you passed through, such as property, employment, or family members with permanent status living there. (See 8 C.F.R. Section 208.15(a).)

Be prepared to explain why you did not seek refuge or other status in the countries where you spent time, especially if you have those types of ties to the country.

What If You Sought or Were Offered Refuge in Another Country Before Entering the U.S.?

If you applied for asylum in another country but your application was denied, the U.S. government will want to know why you didn't qualify. It might, after all, be due to information that makes you similarly ineligible in the United States.

If your asylum request was approved, or if you received a realistic offer of permanent residence by some other means, you will likely be required to return to that country.

If you have a pending asylum case in a third country and are still awaiting a final decision, you will need to provide details of that request to either USCIS (if submitting an affirmative application) or DHS (if applying in Immigration Court). Your application for U.S. asylum will likely be placed on hold until you receive a final determination on your earlier asylum request from the other country.

If it is eventually established that you have a right to live in another country, your U.S. asylum application will in all likelihood be denied. The fact that you might not wish to live in that country will not be taken into account, as was spelled out in a 2020 case from the Board of Immigration Appeals. (See Matter of K-S-E-, 27 I&N Dec. 818 (B.I.A. 2020).)

What If You Got Fake Documents Allowing You to Live in the Third Country?

Oddly enough, even living someplace using falsified paperwork can be enough for the U.S. government to find that you were firmly resettled there, if that country's government hasn't noticed the problem. (See Matter of D-X and Y-Z, 25 I&N Dec. 664 (B.I.A. 2012).)

Getting Legal Help

If you are worried about proving that you were not firmly resettled in another country, definitely consult with an experienced immigration attorney. Also see Applying for U.S. Asylum: How Much Will It Cost?.

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