The firm resettlement bar is a basis to disqualify an applicant for Asylum and an applicant for Temporary Protected Status, “TPS” based on his or her transiting to another country, not a country of origin or the United States after the events based on the Asylum or TPS claim occurred.
The bar specifically indicates that an alien is considered to be firmly resettled if:
- The alien resided in a country through which the alien transited prior to arriving in or entering the United States and
- Received or was eligible for any permanent legal immigration status in that country;
- Resided in such a country with any non-permanent but indefinitely renewable legal immigration status (including asylee, refugee, or similar status but excluding status such as of a tourist); or
- Resided in such a country and could have applied for and obtained any non-permanent but indefinitely renewable legal immigration status in that country;
Furthermore, a noncitizen is considered to be firmly resettled where the noncitizen physically resided voluntarily, and without continuing to suffer persecution or torture, in any one country for one year or more after departing his country of nationality or last habitual residence and prior to arrival in or entry into the United States.
Is the bar applied automatically?
Immigration regulations indicate that the applicant bears the burden that the bar does not apply if the evidence of record indicates that the firm resettlement bar may apply. Furthermore, an immigration official or an immigration judge may raise the issue of firm resettlement as well.
Are there any defenses to the bar?
An applicant may argue that he or she could not have derived any permanent legal immigration status or any no-permanent but indefinite immigration status. However, the applicant may need to demonstrate how the laws in the transiting country would not offer permanent or indefinite immigration status during the time the noncitizen was present.
Furthermore, a noncitizen will not be subject to the bar if the claim for TPS or Asylum arose after the time period the noncitizen was present in the country of temporary residence.
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