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Media Alerts - Naizghi v. Lynch -- Fourth Circuit
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October 5, 2015
  Naizghi v. Lynch -- Fourth Circuit
Headline: Asylum Seeker Faces Challenge Proving a House Is Not a Home: Evidence of Firm Resettlement Is a High Bar to Clear

Areas of Law: Immigration Law, Administrative Law

Issue Presented: Whether substantial evidence supported the Board of Immigration Appeals' conclusion that the asylum applicant was firmly resettled in another country before coming to the United States.

Brief Summary: The United States Court of Appeals for the Fourth Circuit affirmed the Board of Immigration Appeals' denial of Petitioner's application for asylum because it found she had firmly resettled in Italy prior to coming to the United States. The court found that substantial evidence in the record, although circumstantial, supported the Board of Immigration Appeals' decision that the Petitioner failed to rebut the government's prima facie case of her firm resettlement.

Extended Summary: Petitioner, Ghenet Debesai Naizghi, a Pentecostal Christian, fled Eritrea for Italy in 1994 after government soldiers abducted her father and brother from their family home. Upon arrival in Italy, Naizghi applied for and obtained a temporary work permit, which she renewed annually at first, then semi-annually over the course of twelve years. In 2006, Naizghi applied for Italian citizenship, but failed to include a document that she needed translated and authenticated by the Italian Embassy in Eritrea. Italy rejected Naizghi's application, although it is unclear why. Naizghi continued to reside in Italy on a temporary work permit after the government rejected her citizenship application.

In 2008, customers of a restaurant at which Naizghi worked sexually assaulted her. Naizghi sought treatment for her injuries, and the Italian government covered the cost of her treatment. Shortly thereafter, the petitioner returned to Eritrea to be with her mother with no intention to return to Italy at that time.

After being back in Eritrea for only twelve days, Naizghi was abducted by government soldiers during a prayer service in her mother's home. The soldiers held Naizghi captive and beat, starved, and sexually assaulted her for eight days. The petitioner's mother was eventually able to bribe the soldiers to secure her daughter's release. Thirteen days later, on September 8, 2008, Naizghi again fled to Italy with the intention of travelling to the United States. Naizghi secured a B-2 travel visa for seven months in February 2009, and arrived in the United States in June 2009. By the time she applied for asylum in March 2010, Naizghi had already overstayed her visa, and on April 20, 2010, Naizghi received a Notice to Appear in front of an Immigration Judge ("IJ").

Two years later, on April 30, 2012, Naizghi appeared in front of an IJ. At the hearing, she agreed she could be deported because she had overstayed her travel visa, but nevertheless requested asylum and withholding of removal. The government argued that under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 U.S.C. § 1158(b)(2)(A)(vi), Naizghi was barred from seeking asylum in the United States because she had firmly resettled in Italy. The IJ ultimately granted Naizghi's withholding of removal, but denied her request for asylum because she had firmly resettled in Italy before coming to the U.S. A withholding of removal prevents asylum seekers from being removed to a country where their life or freedom would be threatened based on their membership in a particular racial, ethnic, religious, political, or social group, but it does not lead to resident status. Asylum seekers with this status may be removed to another country in which they would not be persecuted. On November 25, 2013, the Board of Immigration Appeals ("BIA") wrote a separate opinion affirming the IJ's decision. Naizghi appealed.

The United States Court of Appeals for the Fourth Circuit affirmed the IJ's and BIA's decisions, finding that the government established through indirect evidence that Naizghi was firmly resettled in Italy. In reviewing the decisions, the court applied the four-step burden-shifting framework from Matter of A-G-G-, 25 I. & N. Dec. 500-03 (B.I.A.). Under the A-G-G- framework, the government must provide prima facie evidence of an undocumented person's offer of permanent citizenship in another country. If the government provides such evidence, then the burden shifts to the asylum seeker to show by a preponderance of the evidence that he or she did not receive an offer of citizenship. The IJ then examines all of the evidence to determine whether the asylum seeker has rebutted the government's evidence. If the asylum seeker successfully shows that he or she did not receive or qualify for an offer of citizenship, then the applicant is granted asylum. If not, the asylum seeker must show that he or she meets an exception to the firm resettlement law.

The Fourth Circuit found that substantial evidence supported the BIA's conclusion that Naizghi had firmly resettled in Italy. The court noted that, although direct evidence of resettlement is preferred, indirect evidence could also establish firm resettlement. In Naizghi's case, under the first step of the A-G-G- framework, the government presented her testimony that she was eligible for Italian citizenship combined with her ten-year stay, multiple temporary work permits, the ability to travel using those permits, the fact that the government paid the medical expenses related to her sexual assault, and her ability to obtain housing, which the court concluded was sufficient prima facie evidence that she was firmly resettled in Italy. Moving to the second and third steps of A-G-G-, the court found that Naizghi had presented "scant evidence that she did not receive an offer of citizenship from Italy or that she would not qualify for citizenship." The court specifically took issue with Naizghi's assertion that she could not complete the Italian citizenship process because she could have obtained the necessary document from the Italian Embassy in Eritrea when she returned there after her 2008 sexual assault.

In a brief dissent, Judge Traxler found that Naizghi had produced enough evidence to rebut the government's evidence of an Italian offer of citizenship. He concluded that Italy had not offered Naizghi citizenship because she had to return to Eritrea to obtain specific documents in order to complete the process. Judge Traxler also noted that it was "unreasonable to expect her to remain in Eritrea to obtain the required documentation" given that she was abducted, held captive, and assaulted shortly after her return to the country.

To read the full text of this opinion, please click here.

Panel: Judges Traxler, King, and Thacker

Argument Date: 10/30/2014

Date of Issued Opinion: 09/10/2015

Docket Number: Case Nos. 13-2511 & 14-1530

Affirmed by unpublished opinion

Case Alert Author:
Monica Basche, Univ. of Maryland Carey School of Law

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

Author of Opinion: Per curiam

Dissenting Opinion:
Judge Traxler

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 10/06/2015 at 03:25 PM by Renee Hutchins

    Posted By: Renee Hutchins @ 10/05/2015 03:31 PM     4th Circuit  

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