Interim Decision #2905
MATTER OF PORTALES, et al.
In Exclusion Proceedings
A-24712281
Decided by Board May 14, 1982
(1) Cuban applicants, who were granted refugee status by Peru and were permitted to
live and be employed without restriction in that country, are held to be firmly resettled
in Peru prior to their arrival in the United States, and, therefore, not entitled to refugee
status in this country.
(2) Notwithstanding the living and employment conditions experienced by the Cuban applicants in Peru, they are deemed firmly resettled in the absence of facts necessary to
establish that the conditions of their residence were substantially and consciously restricted
by the authorities of that country. •
(3) In view of the fact that a grant of an applicant's request for asylum in the United
States is limited to 1 year, eubjeet to annual review, and may be terminated for several
reasons including changed circumstances in the asylee's country, it is not significant as
to the issue of resettlement that Peruvian refugee documents issued to the applicants
were only valid for a2-year period.
(4) An applicant whose request for asylum is granted does not enter the United States as
a lawful permanent resident since that status is acquired, if at all, only after the alien
has been physically present in the United States for at least 1 year from the date he was
granted asylum.
EXCLUDABLE; Act of 1952—Sec. 212(a)(20) (5 U.S.C. 11820/C2011 — Immigrants—not in
possession of valid, unexpired immigrant visas or other
valid entry documents
ON BEHALF OF APPLICANTS: ON BEHALF OF SERVICE:
Philip M. Zyne, Esquire Leonard Leopold
Walters, Costanzo, Miller & Russell John C. Midanek
Suite 500, 330 Building General Attorneys
330 North Biscayne Boulevard
Miami, Florida 33132 aorald S. Hurwitz
Appellate Trial Attorney
By: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In a decision dated September 24, 1981, an immigration judge found
the applicants excludable under section 212(a)(20) of the Immigration _
and Nationality Act, 8 U.S. C. -1192(v.)(20), as intending immigrants not
in possession of valid immigrant visas or other valid entry documents,
denied their requests for asylum and withholding of deportation, and
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ordered them excluded and deported. The applicants have appealed.
The appeal will be dismissed.
Applicants, eight natives and citizens of Cuba (see Appendix), participated in the exodus from that country in the Spring of 1980 when they
flew to Peru with approximately 400 other Cubans. The applicants lived
in Lima, Peru, between April 1980 and September 16, 1981, when they
departed on a commercial airline for Miami, Florida, seeking admission
to the United States as refugees. As the applicants did not appear to the
inspecting officers to be admissible, they were detained and placed in
exclusion proceedings.
At their exclusion hearing, which began on September 18, 1981, and
concluded on September 24, 1981, the applicants, who were represented
by counsel, conceded excludability under section 212(a)(20) of tlic Act,
admitting that they were aliens, that it was ,their intent to live and
work in the United States, and that they did not have immigrant visas
or other valid entry documents entitling them to enter this countrk. The
applicants were properly found excludable smiler section 212(s)(20) of
the Act. Matter of Castellon, 17 I&N Dec. 616 (BLA. 1981).
The applicants renewed their requests for asylum, previously, denied
by the District Director, with the immigration judge, claiming persecution based on political opinion.' Their applications (Form I 589) reflect, -
with one exception, that neither the applicants nor any member of their
families have ever been imprisoned or otherwise persecuted in Cuba,
that they have not participated in any specific, acts of political expression 'or organizations considered hostile to the interests of the Cuban
government, and that with the exception of seeking asylum at the
Peruvian Embassy in Havana in April 1980, they have never been politically active or expressed opposition to the Castro regime. One of the
applicants was imprisoned for 5 years, between 1966 and 1971, for
expressing his opposition to Castro and the Communist Party. He continued to live and work in Cuba following his release in 1971 without
further incident. All of the applicants opposed the present government
in Cuba and believed that they would be imprisoned if returned to that
country because they -sought asylum in the Peruvian Embasy. Their
applications further reflect that they were granted refugee status by
Peru.
The record contains a State Department telegram from the American
Embassy in Lima, Peru (Ex. 16), which states that the applicants were
given nonimmigrant resident refugee status, that with this status the
applicants are entitled to work, attend school, practice their religion,
' An application for asylum under section 208(a) of the Act, 8 IL S.C. 1158(a), made after
the institution of exclusion or deportation proceedings shall also be considered as a request
for withholding of exclusion or deportation pursuant to section 243(h) of the Act, 8 U.87C.
1258(h). 8 C.F.R. 208. See Matter oA,Rodriguez-Pa(ma,
17 I&N Dec. 465 (BIA 1980).
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and are required to pay taxes. It states that the refugee documents
issued by Peru to the applicants were valid for 2 years. The telegram
further states that the applicants are still considered refugees in Peru
and are returnable to Peru as such.
The applicants testified that during the 16 months they lived in Peru
the government provided the Cuban refugees there, including the
applicants, with tents and food, and Medical services were provided on
an emergency basis only. They testified that the Peruvian economy was
poor, that unemployment was high, and that they were not able to find
employment or afford permanent housing.The applicants admitted that
they could freely travel throughout Peru and were not prohibited, from
seeking employment. They also admitted that the conditions under which
they lived in Peru were not the result of discrimination but rather the
economic conditions of that country. They stated that they made no
attempts to regularize their status in Peru, that it was not their intent
to permanently reside there, and that they considered themselves transients ultimately destined for the United States
At the conclusion of the hearing, the immigration judge denied the
applicants' requests for asylum and withholding of deportation. He found
that the applicants had not established that'they would be persecuted if .
returned to Cuba. He further found that they had been firmly resettled
in Peru, that they had been granted asylum in that country, and that
they were therefore not eligible ft. r the requested relief.
We conclude that the applicants' requests for asylum and withholding
of deportation were properly denied. An applicant for asylum under
section 208(a) of the Act must show that, if deported; he would be
subject to persecution based on his race, religion, nationality, member =
ship in a particular social group, or political opinion. To meet this burden
of proof, an alien must demonstrate' a clear probability that he will be
persecuted if returned to his country or a well-founded fear of such
perseeutinn. 8 C.F.R. 208.5. See Matter of Dunar, 14 I&N. Dec. 310
(BIA. 1973).
The applicants have not shown that they will be persecuted if returned
to Cuba. The mere assertion of persecution is not sufficient. Matter of
Castellon, supra. The record reflects that neither applicants nor their
families have been arrested, imprisoned, or otherwise persecuted in
Cuba. It reflects that the applicants have not been politically active and
have not participated in organizations considered hostile to the interests
of the Cuban government. Although the applicants sought asylum in the
Peruvian Embassy, they were issued valid passports and exit permits
by the Cuban government and permitted to lawfully depart that country
without incident The only applicant who claimed that he was imprisoned for publicly expressing his opposition to the' Castro regime has
lived in Cuba since 1971 without further incident. We find no evidence
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that the applicants were persecuted nor a clear probability that they-will
be if returned to Cuba.
We further conclude that the applicants, prior to their arrival in the
United States, were firmly resettled in Peru and that they are not
entitled to classification as refugees. An alien is deemed firmly resettled
if offered permanent resettlement by another country as a consequence
of his flight from persecution, unless it is established that the conditions
of his residence in that country have been substantially and consciously
restricted by the authorities of that country. 8 C.F.R. 207.1(b),208.8(f)
(1)(5), and 208.14. See Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971);
Matter of Lam, Interim Decision 2857 (BIA 1981); Matter of Kwan,
14
I&N Dec. 499 (R.C. 1973).
The record establishes that the applicants sought asylum in the
Peruvian Embassy in Havana, Cuba, and that as a result they were
granted refugee status' by Peru and flown out of Cuba. The Peruvian
government provided the applicants with food, limited medical attention,
and the only available living accommodations, a tent city. The applicants
were permitted to freely travel throughout the country, were authorized to accept employment, attend school, and practice their religious
preferences. They were issued refugee documents valid for 2 years. The
applicants fled Cuba, claiming persecution. That claim was extinguished
when they were granted refuge in Peru. Furthermore, there is no indication in the record that the Peruvian government intends to terminate
the refugee status previously granted the applicants or that the refugee
documents issued to them are not renewable.
The applicants argue on aPpeal that the living conditions they were
subjected to in Peru, their inability to obtain suitable employment, and
the 2 year limitation on the validity of their refugee documents clearly
-
demonstrate that they were not firmly resettled. We disagree. The
living conditions and inability to obtain employment experienced by the
applicants appear related to Peru's ecomony, rather than the conscious
restriction of benefits by the authorities of that country. The applicants
were authorized to accept employment and it is not clear that they
exhausted existing employment opportunities. Nor is it significant that
the refugee documents issued the applicants were only valid for a 2-year
period. A grant of an applicant's request for asylum in the United States
is limited to 1 year, subject to annual review, and may be terminated for
several reasons, including changed circumstances in the asylee's country.
8 C.F.R. 208.8(e), 208.10(e),and 208.15. An applicant whose request for
asylum is granted does not enter the United States as a lawful permanent resident. That status is given, if at all, only after the alien has been
physically present in the United States for at least 1 year from the date
he was granted asylum_ 8 U.14'..K. zo9.1 and 209.2.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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APPENDIX
A24 712 279 GONZALEZ, Sol Angel
A24 712 280 FERNANDEZ, Jose Luis
424 712 281 PORTALES, Victor
424 712 299 MARTINEZ, Pedro Danislao
424 712 300 HERNANDEZ-Arencibia, Martha
A26 002 172 PEREZ-Aguiar, Carmen Nancy
A26 012 882 BARRERA-Perez, Niurka
A26 012 883 RARRERA-Perez, Marialys
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