SOLEIMANI

                                                               Interim Decision #3118




                         MATTER OF SOLEIMANI

                           In Deportation Proceedings

                                      A-26157647

                        Decided by Board July 13, 1989

(1) A finding that an alien was firmly resettled in another country does not render him
  ineligible for a grant of asylum under section 208 of the Immigration and Nationality
  Act, 

 (1982), by an immigration judge or the Board of Immigration
  Appeals. Rosenberg v. Yee Chien Woo, 

 (1971), distinguished. Matter of
  Portates, 

 (BIA 1982); and Matter of Lain, 

 (BIA
  1981), modified.
(2) The Board and immigration judges are not bound by the provisions of 

(1)(1)(ii) (1988), which precludes district directors of the Immigration and
  Naturalization Service from granting asylum under section 208 of the Act to aliens
  who are firmly resettled in a third country.
(3) An alien's firm resettlement in another country is a factor to be evaluated in
  determining whether asylum should be granted as a matter of discretion under the
  standards set forth in Matter of Pula, 

 (BIA 1987).
(4) A' finding that an alien has been firmly resettled in a third country would normally
  preclude a grant of asylum as a matter of discretion, unless the alien can demonstrate
  countervailing equities in his favor that are compelling in nature.
(5) Whether or not an outstanding offer of permanent residence or citizenship to all Jews
  who arrive in Israel constitutes a specific offer of permanent resettlement to the
  respondent, the pertinent regulations and the Board's prior decisions cannot be read
  so restrictively that the respondent's circumstances in Israel become irrelevant.
(6) An alien will not be found to be firmly resettled elsewhere if it is shown that his
  physical presence in the United States is a consequence of his flight in search of refuge,
  and that his physical presence is reasonably proximate to the flight and not one
  following a flight remote in point of time or interrupted by an intervening residence in
  a third country reasonably constituting a termination of the original flight in search of
  refuge.
(7) The question of firm resettlement is not always limited solely to the inquiry of how
  much time has elapsed between the alien's flight and the asylum application, where
  other factors germane to the question of whether the alien has firmly resettled include
  family ties, intent, business or property connections, and other matters.
(8) A determination that the respondent was not firmly resettled in Israel does not end
  the Board's inquiry as to whether the respondent should be granted asylum as a matter
  of discretion, where the respondent did have some ties to Israel, and such ties are a
  factor to be evaluated in the exercise of discretion.

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Interim Decision #3118

CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [

(a)(2)]—Nonimmigrant—remained
                     longer than permitted
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
  Janet A. Savrin, Esquire                               Louise Cavanaugh
  450 Seventh Avenue, Suite 1604                         General Attorney
  New York, New York 10123

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members


  In a decision dated September 5, 1985, an immigration judge found
the respondent deportable as charged under section 241(a)(2) of the
Immigration and Nationality Act, 

(a)(2) (1982), as a
nonimmigrant who had remained in the United States longer than
permitted.' He also denied her application for asylum under section
208(a) of the Act, 

(a) (1982), on the basis of firm
resettlement in Israel but granted her application for withholding of
deportation to Iran under section 243(h) of the Act, 

(h) (1982). He further granted her request for voluntary
departure under section 244(e) of the Act. 

(e) (1982). 2
                                                                                          Therspondta lefrmhtdcison.Teaplwb
sustained, and the application for asylum will be granted.
  The respondent is a 34—year-old native and citizen of Iran. Evidence
included in the record establishes that she is Jewish. In various

     At her deportation hearing, the respondent admitted the factual allegations
contained in the Order to Show Cause and Notice of Hearing               (Form 1 221) and
                                                                                -


conceded her deportability as charged. The Board finds that her deportability has been
established by clear, unequivocal, and convincing evidence, as required by Woodby v.
INS, 

 (1966), and S § 242.14(a) (1988).
   2 1n his decision, the immigration judge ordered the respondent deported to Iran if she
failed to depart voluntarily within the time specified and alternatively ordered her
deported to Israel if Iran was unwilling to accept her. The immigration judge also
ordered that the application for withholding of deportation to Iran be granted if the
Immigration and Naturalisation Service attempted to deport her to Iran. On anneal, the
respondent contends that granting her application for withholding of deportation to
Iran, but ordering her deported to Iran if she failed to depart voluntarily, was
inconsistent and incorrect. The Board agrees. If the asylum application is denied, but the
application for withholding of deportation is granted, the immigration judge should
order deportation, contingent upon noncompliance with the grant of voluntary
departure, to the country of firm resettlement, in this case Israel, or another designated
country for which the order of withholding of deportation does not apply, and order
withholding of deportation to the persecuting country, in this case Iran, if the country of
firm resettlement or other designated country refuses to accept the respondent. In view
of our decision on the asylum application, the Board need not modify the deportation
order in this regard.

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                                                  Interim Decision #3118

affidavits and statements, as well as her testimony at her deportation
hearing, she related that she fled Iran on October 23, 1981, with her
mother and brother, traveling over the mountains to Pakistan without
a visa, where they later obtained a visa to remain in. Pakistan
temporarily until November 4, 1981. According to the respondent,
after staying 5 days in Pakistan, she and her family flew to Athens,
Greece, without visas and, being unsuccessful in obtaining visas there,
subsequently flew to Rome, Italy, again without visas. From there,
after 2 or 3 days, they few to Israel without visas in November 1981,
where she remained until September 15, 1982. The record also
includes the respondent's Iranian passport but does not document the
type of visa or status the respondent had during her stay in Israel.
   According to the respondent, she obtained a visa as a visitor for
pleasure while in Israel, initially intending to remain with her family in
Israel only until the situation in Iran improved. In her affidavits,
statements, and hearing testimony, she related that she never worked
or owned property in Israel and was never directly offered Israeli
citizenship, permanent resettlement, or resident status in Israel. She
also reported that she had developed pneumonia during her travels
and was sick and under a physician's care for 6 months of her stay in
Israel. The respondent was hospitalized there due to her illness. She
reportedly lived with her grandmother while in Israel, apparently
paying rent. Observing that she had visited Israel seven different times
in the past, she related that she had gone to school to study Hebrew
during her last stay in Israel but had never received any financial
assistance for any reason from the Israeli Government, as she had
relied on her brothers and her own funds for support.
   While in Israel, the respondent was issued a nonimmigrant visitor
for pleasure visa by the American consulate on June 10, 1982, with
which she entered the United States on September 16, 1982, with her
Iranian passport. She was authorized to remain until December 16,
1982, and on November 22, 1982, applied for asylum with the district
director. The district director denied the application on November 1,
1984. Deportation proceedings were instituted on March 1, 1985.
   The respondent has reported that she initially obtained the nonimmigrant visitor's visa and came to the United States in order to attend
a family wedding and to visit her three brothers. According to the
respondent, she remained in the United States for several months
visiting family and friends and then filed her application for asylum, as
she was still unable to return safely to Iran and had no other home. She
observed that she had not expected the regime in Iran to remain in
power as long as it had and, for this reason, had also not sought asylum
in Israel previously. The respondent related that her three brothers, her
mother, her sister, and a nephew were in the United States, and that

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Interim Decision #3118

her only remaining family in Israel was her grandmother. According to
the respondent's asylum application, one brother was a student, while
her other brothers, as well as her mother and sister, were also asylum
applicants.
    In conjunction with the respondent's initial asylum application, the .
district director requested and obtained an advisory opinion from the
United States Department of State's Bureau of Human Rights and
Humanitarian Affairs ("BHRHA"). In the advisory opinion, dated
October 26, 1984, the BHRHA expressed its view that the respondent,
if a member of the Jewish faith, had a well-founded fear of persecution
if returned to Iran. However, it also concluded that in view of Israel's
Law of Return, which entitled the respondent as a member of the
Jewish faith to reside permanently and enjoy the rights of citizenship
in Israel, it was probable that she was offered resident status,
citizenship, or some other type of permanent resettlement. It appeared
to the BHRHA that the respondent had become firmly resettled in
Israel and was therefore ineligible for asylum pursuant to 

(f)(1)(ii) (1984).
    Following the deportation hearing, the immigration judge concluded in his decision that the respondent, as an Iranian Jew, would be
persecuted if returned to her native country, and he accordingly
granted her application for withholding of deportation to Iran.
However, he also denied her asylum application, concluding that she
was ineligible due to her firm resettlement in Israel, in that she could
have become a resident of Israel and by her own choosing decided not
to do so. The respondent contends on appeal that she had not become
firmly resettled in Israel.
    The respondent bears the evidentiary burden of proof and persuasion in any application for asylum under section 208 of the Act. Matter
of Acosta, 

 (BIA 1985), modified on other grounds,
Matter ofMogharrabi, 

 (BIA 1987); 

(1988). In order to establish eligibility for a grant of asylum, an alien
must demonstrate that she is a "refugee" within the meaning of section
101(a)(42)(A) of the Act, 

(a)(42)(A) (1982). That
definition includes the requirement that an alien demonstrate that she
is unwilling or unable to return to her 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." In the case at hand, the immigration judge concluded that
the respondent had sufficiently demonstrated that she would be
persecuted on the basis of her Jewish religion if returned to Iran, and
he accordingly granted her application for withholding of deportation
to that country. The Service has not appealed that decision. As the
respondent has satisfied the higher burden of proof required for

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                                                  Interim Decision #3118

withholding of deportation, it follows that she has satisfied the lesser
"well-founded fear" standard of proof required for asylum. See INS v.
Cardoza-Fonseca, 

 (1987).
   Having established a well-founded fear of persecution on account of
religion if returned to Iran, the respondent thus demonstrated that she
was a "refugee" within the meaning of section 101(a)(42)(A) of the Act
and established her statutory eligibility for asylum under section 208.
A finding that the respondent was firmly resettled in another country,
namely Israel, does not render her ineligible for a grant of asylum
under section 208 by the immigration judge or this Board. Rather,
firm resettlement is a factor to be evaluated in determining whether
asylum should be granted as a matter of discretion under the standards
set forth in Matter of Pula, 

 (BIA 1987).
   The immigration judge's conclusion to the contrary most likely
stemmed from a reading of language used by the Board in Matter of
Lam, 

 (BIA 1981), and Matter ofPortales, 

 (BIA 1982). In the former decision, distinguishing withholding of
deportation from asylum, the Board stated that "[a]sylum will not
even be granted, however, where the alien has been firmly resettled in
a third place." Matter of Lam, supra, at 18. In the latter decision, the
Board relied on Rosenberg v. Yee Chien Woo, 

 (1971),
concluding "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." Matter of Portales, supra, at 242. However,
these statements, to the effect that an alien's firm resettlement in a
third country renders the alien ineligible for asylum, were dicta.
Noting in Matter of Lam, supra, that the immigration judge had
granted the alien withholding of deportation to the People's Republic
of China but had not set forth his reasons for denying asylum, the
Board remanded the record for an evidentiary hearing on the question
of firm resettlement. It was therefore not necessary for the Board to
determine at that juncture whether firm resettlement acts as a bar to
eligibility for asylum, as opposed to one factor to be evaluated in the
exercise of discretion. In Matter of Portales, supra, prior to finding that
the applicants had firmly resettled in a third country, the Board held
that the applicants had not demonstrated a clear probability or a well-founded fear of persecution if returned to Cuba, which in itself
rendered the applicants ineligible for asylum. Thus, the Board's
finding of firm resettlement was unnecessary to the holding that the
applicants were not eligible for relief. The Board hereby withdraws
from the above-cited cases to the extent that they state that an alien
found to have been firmly resettled in a third country is rendered
ineligible for a grant of asylum under section 208 of the Act by the
immigration judge or this Board.
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   Section 208(a) of the Act states that an alien physically present in
the United States or at a land border may be granted asylum in the
discretion of the Attorney General if it is determined that the alien is a
"refugee" -within the meaning of section 101(a)(42)(A). Section
101(a)(42)(A) provides:
      The Man "refugee" means (A) 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.
   There is no reference to firm resettlement in section 208 of the Act,
and it is not part of the definition of a "refugee" in section
 101(a)(42)(A). Aliens outside of the United States may not be admitted
as refugees under section 207(c)(1) of the Act, 

(c)(1)
(1982), if they are firmly resettled in a third country, but this
preclusion is limited to admission of refugees outside the United
States under the procedures established by section 207, and it is not
incorporated by statute in the asylum procedures of section 208. By
regulation, a district director is precluded from granting asylum under
section 208 to aliens who are firmly resettled in a third country. 

(f)(1)(ii) (1988). However, this regulatory bar applicable
to a district director does not prohibit an immigration judge or the
Board from granting asylum to an alien deemed to have been firmly
resettled. See Matter of Gonzalez, 

 (BIA 1988).
   In the absence of any reference to firm resettlement in section 208
of the Act or in the definition of a "refugee" under section
101(a)(42)(A), and in the absence of any regulatory bar, we conclude
that an alien is not precluded from being granted asylum by an
immigration judge or the Board based on a finding of firm resettlement in a third country. A review of the legislative history of the
Refugee Act of 1980, 

 Stat. 102, does not
establish that Congress intended firm resettlement to act as a bar to a
grant of asylum by an immigration judge or the Board. The Supreme
Court's decision in Rosenberg v. Yee Chien Woo, supra, also does not
require a conclusion to the contrary. The Court, interpreting section
203(a)(7) of the Act (repealed by section 203(c)(3) of the Refugee Act
of 1980), held that although the statute failed to mention the "firm
resettlement" concept, it was one of the factors which the Immigration
and Naturalization Service must take into account in determining
whether a refugee seeks asylum in the United States as a consequence
of his flight to avoid persecution, as required for a grant of asylum.
The Court reasoned that although the statute did not specifically

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mention firm resettlement, while it had been expressly stated in
predecessor statutes, Congress had added a new requirement that the
alien must have "fled" to avoid persecution, noting that both terms
were closely related to the "central theme of all 23 years of refugee
legislation   —   the creation of a haven for the world's homeless people."
Id. at 55.
   However, neither section 208 of the Act nor the current definition
of a "refugee" under section 10I(a)(42)(A) refers to the concept of
either firm resettlement or flight. Moreover, Congress expressly
provided in section 207 of the Act that aliens outside of the United
States could not be admitted to this country as refugees if firmly
resettled in another foreign country, but it chose not to incorporate
any such language into sections 101(a)(42)(A) or 208. Where Congress
includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclusion. INS v. 

 Russello v. United States, 

 (1983). Congress' intent that firm resettlement should not
preclude a finding that an alien is a refugee within section
101(a)(42)(A) can also be gleaned from section 209(b)(1) of the Act, 8
U.S.C. § I159(b)(1) (1982). That section requires that in order for an
alien granted asylum to be adjusted to the status of a lawful permanent
resident, the alien must not only continue to be a refugee within the
meaning of section 101(a)(42)(A) but also must not be firmly resettled
in any foreign country. It is clear that Congress viewed the concept of
firm resettlement as separate and apart from the definition of a
refugee. It is apparent from a reading of the applicable statutes that
Congress intended for an alien still outside of the United States to be
precluded from admission to this country as a refugee if he has firmly
resettled in a third country, but that once within the United States or
at its borders, the alien's resettlement elsewhere should only be
considered as a factor in the evaluation of his asylum claim as a matter
of discretion.
    Turning to the discretionary aspects of the respondent's asylum
claim, a finding that an alien has been firmly resettled in a third
country would normally preclude a grant of asylum as a matter of
discretion, unless the alien can demonstrate countervailing equities in
his favor that are compelling in nature. An alien is deemed to be
"firmly resettled" if he has been 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. 

 (1988); Matter of Portales, supra;
Matter of Lam, supra.
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Interim Decision #3118

   In the case at hand, the immigration judge concluded that the
respondent had been "offered" permanent resettlement under Israel's
Law of Return, and that her choosing not to become a resident did not
obviate the fact of her firm resettlement. However, there is nothing in
the record, beyond the BHRHA.'s perfunctory reference to its existence, documenting the nature and purpose of Israel's Law of Return
or the specific provisions of that law. Absent any such documentation,
the Board cannot find that the respondent had been offered permanent
resettlement in Israel within the meaning of the firm resettlement
concept. There exists no evidence that the respondent would be
eligible for an offer of resettlement under any such law and no
evidence regarding the extent of any restrictions or conditions that
may be placed on offers of resettlement under that law. Foreign law is
a matter to be proven by the party seeking to rely on it, and the
Immigration and Naturalization Service has submitted nothing of
record regarding Israel's Law of Return. See Matter of Annang, 

 (BIA 1973).
  Moreover, whether or not an outstanding offer of permanent
residence or citizenship to all Jews who arrive in Israel constitutes a
specific offer of permanent resettlement to the respondent herself, the
pertinent regulations and the Board's prior decisions cannot be read so
restrictively that the respondent's circumstances in Israel become
irrelevant. An alien will not be found to be firmly resettled elsewhere if
it is shown that his physical presence in the United States is a
consequence of his flight in search of refuge, and that his physical
presence is reasonably proximate to the flight and not one following a
flight remote in point of time or interrupted by an intervening
residence in a third country reasonably constituting a termination of
the original flight in search of refuge. See Rosenberg v. Yee Chien Woo,
supra. The question of resettlement is not always limited solely to the
inquiry of how much time has elapsed between the alien's flight and
the asylum application. Other factors germane to the question of
whether the alien has firmly resettled include family ties, intent,
business or property connections, and other matters. Chinese Am.
Civic Council v. Atty. Gen. of United States, 

 (D.C. Cir.
1977); see also Kai Fung Chan v. Kiley, 

 (S.D.N.Y.
1978); Chi-Wai Lui v. Pilliod, 

 (N.D. Ill. 1973);
Matter of Moy, 

 (Comm. 1967); Matter of Chai, 

 (Comm. 1967).
   As a preliminary matter, the Board concludes that, at the time the
respondent first arrived in Israel in November 1981, she was then
fleeing persecution, having escaped Iran by fleeing over the mountains
into Pakistan. The respondent herself has stated that she and her
family had left Iran due to the political situation there. The fact that

                                    106
                                                 Interim Decision #3118

she may have had some hope that circumstances there would improve
so as to allow her to return does not change the fact that she had fled
on account of persecution or a fear of persecution.
    However, the record demonstrates that her intervening residence in
Israel before applying for asylum in the United States did not
reasonably constitute a termination of her original flight in search of
refuge. Her later physical presence in the United States remained
reasonably proximate to her flight. In this regard, the Board points out
that the respondent took no active steps demonstrating that she had
firmly resettled in Israel or had an intent to do so. She remained there
only 10 months, and during this time lived with her grandmother,
recuperating from her illness and attending school in order to study
Hebrew. Her attending school in itself does not demonstrate firm
resettlement. See Matter of Chat, supra. Additionally, she neither
worked nor sought employment in Israel. She did not seek any
financial or other benefits from the Israeli authorities. The respondent
has also testified, and the Service has not contested, that she only
received a nonimmigrant visitor's visa in Israel and never sought a
more permanent status or the benefits accruing from a more permanent status during her stay in Israel. Although she does have
permanent family in that country, this consists solely of her grandmother, while the remainder of her family lives in the United States.
Given these circumstances, the Board concludes that the respondent
had not firmly resettled in Israel or any other country prior to her
application for asylum in the United States.
   The determination that the respondent was not firmly resettled in
Israel does not end the Board's inquiry as to whether she should be
granted asylum in the exercise of discretion. As noted above, the
record shows that the respondent did have some ties to Israel, and
even if they were not sufficient to demonstrate firm resettlement, such
ties are a factor to be evaluated in the exercise of discretion. Among
the factors which should be considered are: whether she passed
through any other countries or arrived in the United States directly
from her country; whether orderly refugee procedures were in fact
available to help her in any country she passed through, and whether
she made any attempts to seek asylum before coming to the United
States; the length of time she remained in the third country and her
living conditions, safety, and potential for long term residency there;
                                                 -


whether she has relatives legally in the United States or other personal
ties to this country which motivated her to seek asylum here rather
than elsewhere; and the extent of her ties to any other countries where
she does not fear persecution. Matter of Pula, supra.
   Moreover, if the respondent engaged in fraud to circumvent orderly
refugee procedures, the seriousness of the fraud should be considered.
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Interim Decision #3118

Id. Finally, other relevant factors include general humanitarian
considerations such as an alien's tender age or poor health, and
whether the alien has established statutory eligibility for asylum but
cannot meet the high burden required for withholding of deportation.
Id. The evaluation should be made by considering the entire context of
the case, and in the absence of adverse factors, asylum should be
granted in the exercise of discretion.
  Under the balancing analysis set forth in Matter of Pula, supra, the
Board finds that a grant of asylum is warranted as a matter of
discretion. Although the respondent does have some ties to Israel, her
only remaining relative in Israel is her grandmother, while the rest of
her family resides in the United States, most of whom were also
asylum applicants at the time of the deportation proceedings. As noted
above, the respondent neither worked nor sought employment in Israel
and essentially spent her 10 months there recuperating from pneumonia and attending language courses. All during this time she had only a
nonimmigrant status in Israel. Additionally, the respondent arrived in
the United States by legal means through a nonimmigrant visa and
applied for asylum while she was still in a legal status in this country.
There is no showing in the record that the respondent had a
preconceived intent to apply for asylum in this country before coming
to the United States so as to circumvent orderly refugee procedures.
Her ties to Israel alone should not preclude a grant of asylum as a
matter of discretion. They should be balanced with the remaining
factors which include the facts that her ties to Israel are somewhat
limited, that she came to this country by legal means and applied for
asylum while in a legal status here, that there is no evidence that she
engaged in fraud in order to circumvent orderly refugee procedures,
and that there are no other factors adverse to the respondent in the
record.
   Accordingly, the asylum application will be granted in the exercise
of discretion.
   ORDER:          The appeal is sustained.
   FURTHER ORDER:               The application for asylum is granted.




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