USCA11 Case: 21-10952 Date Filed: 05/17/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10952
Non-Argument Calendar
____________________
NELSON DORT,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent-Appellee.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-384-835
____________________
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2 Opinion of the Court 21-10952
Before JORDAN, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioner Nelson Dort, a native and citizen of Haiti, seeks
review of the decision by the Board of Immigration Appeals
(“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his appli-
cation for asylum and withholding of removal under sections
208(a) and 241(b)(3) of the Immigration and Nationality Act
(“INA”),
8 U.S.C. §§ 1158(a) and 1231(b)(3). Petitioner argued be-
low that he was entitled to asylum and withholding of removal
based on his well-founded fear of persecution in Haiti on account
of his political opinion, nationality, and race. The IJ denied Peti-
tioner’s application, finding that he was statutorily ineligible for
asylum pursuant to the “firm resettlement” bar and that his testi-
mony in support of his persecution-based withholding of removal
claim was not credible. The BIA affirmed. After careful review,
we discern no reversible error in the BIA’s decision and likewise
affirm.
BACKGROUND
Petitioner left Haiti in January 2013 and arrived in Brazil a
month later, after traveling through Ecuador and Colombia. Peti-
tioner stayed in Brazil for approximately three years and four
months, during which time he was authorized to work and travel
freely. In 2015, while he lived in Brazil, Petitioner fathered a son
who is Brazilian and who currently lives in Brazil with his mother.
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21-10952 Opinion of the Court 3
Petitioner left Brazil in 2016, following an economic down-
turn there. From Brazil, Petitioner traveled to Ecuador and Co-
lombia, through Central America, and ultimately to Tijuana, Mex-
ico. Petitioner then entered the United States and presented him-
self to US immigration officials at San Ysidro, California in June
2016. In his initial immigration interview, Petitioner stated that he
had come to the United States for economic reasons, that he had
not been harmed, threatened, or otherwise persecuted in Haiti and
had no fear of returning to Haiti, and that he was not a member of
a political group there. In addition, Petitioner advised immigration
officials that he had residency in Brazil as well as in Haiti. Petitioner
swore to the veracity of the statements he made during his initial
interview, and he affirmed that he made the statements freely and
voluntarily.
In August 2016, the Department of Homeland Security is-
sued a notice for Petitioner to appear in removal proceedings. The
notice charged Petitioner with being removable as an immigrant
present in the United States without a valid entry document. After
several delayed and rescheduled hearings, Petitioner filed an I-589
application in August 2017 seeking asylum and withholding of re-
moval under §§ 208(a) and 241(b)(3) of the INA. In the August 2017
application, Petitioner claimed he was entitled to asylum and with-
holding of removal based on his well-founded fear of persecution
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4 Opinion of the Court 21-10952
in Haiti on account of his race, political opinion, and membership
in a particular social group. 1
In a declaration attached to his August 2017 application, Pe-
titioner alleged that he became a member of the Haitian political
party Pitit Dessalines in May 2012, and that he was attacked at his
Dessalines, Haiti area pawn shop in December 2012 by Pierre Jo-
seph, a member of the rival political party Haiti in Action or
“AAA.” Petitioner claimed in the declaration that Joseph left him
lying unconscious on the pawn shop floor after the attack, and that
he was found and rescued by community members who took him
to the hospital. Petitioner did not provide any additional details
about Joseph’s alleged attack in his declaration. Nevertheless, Pe-
titioner asserted in the declaration that he traveled from Haiti to
Brazil in early 2013 to protect himself from Joseph. He explained
that his first year in Brazil went well, but that he and other Haitians
living in Brazil experienced discrimination beginning in 2016, fol-
lowing an economic downturn in that country. Consequently, Pe-
titioner stated, he left Brazil in June 2016 and traveled to the United
States.
Petitioner filed an amended I-589 application in November
2017, in which he again claimed he was entitled to asylum and
withholding of removal based on a well-founded fear of persecu-
tion in Haiti on account of his race, nationality, and political
1 Petitioner also initially sought relief under the Convention Against Torture,
but he subsequently dropped that claim and we do not address it in this appeal.
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21-10952 Opinion of the Court 5
opinion. In the November 2017 application, Petitioner repeated his
allegation that he had become a member of the Pitit Dessalines po-
litical party in May 2012, and that he subsequently had been at-
tacked by Pierre Joseph from the rival AAA party. However, in the
later application, Petitioner alleged that Joseph’s attack in the pawn
shop occurred in July 2012 instead of December 2012, and he
claimed that Joseph pulled a gun and fired shots at him during the
attack.
In addition to the discrepancy as to the date and manner of
the pawn shop attack, Petitioner described two subsequent attacks
by Joseph in the November 2017 application that were omitted
from his August 2017 declaration. Specifically, Petitioner stated in
the later application that when he returned to his Dessalines area
pawn shop a few days after the initial attack in July 2012, Joseph
and two of his AAA friends attacked Petitioner a second time, after
which Petitioner was again rescued by community members who
took him to the hospital. Petitioner claimed that he reported the
second attack to the police, and that he subsequently left the Des-
salines area and went to Gonaives, Haiti to live with a friend. Ac-
cording to the November 2017 application, Joseph and three other
men found him in Gonaives in October 2012 and beat him up, after
which Petitioner was found by community members and taken to
a “bush doctor” who gave Petitioner a massage and a potion for
blood clots and pain.
Petitioner stated in the November 2017 application that he
left Gonaives a few days after Joseph’s third attack and went to Port
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6 Opinion of the Court 21-10952
au Prince to stay with a friend. However, Petitioner claimed that
one day in January 2013, while he was taking a shower in his Port
au Prince residence, he heard his name mentioned and looked out
the window of the bathroom to see one of the men who had beaten
him before. At that point, Petitioner said, he grabbed a few things
and went through the back window to a neighbor’s house. The
next morning Petitioner caught a ride to the Dominican Republic.
From the Dominican Republic, Petitioner traveled by plane to Ec-
uador, and he subsequently traveled by car to Brazil, arriving there
in February 2013.
Petitioner acknowledged in the November 2017 application
that he obtained residency status and work authorization in Brazil,
and that he began a relationship with a woman in Brazil and had a
son there in April 2015. But according to Petitioner, Brazil experi-
enced an economic downturn in 2016 that led to discrimination
against Haitians living in Brazil. Petitioner stated that, as a result
of the discrimination, he left Brazil in June 2016 and traveled by
foot, car, bus, and boat through Peru, Ecuador, Colombia, and ul-
timately to Tijuana, Mexico, where he crossed the United States
border at San Ysidro and presented himself to US immigration of-
ficials.
The IJ held a hearing on Petitioner’s application for asylum
and withholding of removal in March 2019. At the beginning of
the hearing, Petitioner proffered corroborating documents, includ-
ing a police report he allegedly filed in Haiti in July 2012, a copy of
a membership card showing his affiliation with Pitit Dessalines, a
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21-10952 Opinion of the Court 7
letter from his father, and news articles about Pitit Dessalines, but
the Government objected to the IJ’s consideration of the docu-
ments because they were submitted on the day of the hearing,
nearly two years after Petitioner filed his initial I-589 application,
and they could not be properly reviewed or authenticated. The IJ
excluded as untimely all the documents except two country re-
ports.
Petitioner was the only witness who testified at the March
2019 hearing. He acknowledged during his testimony that he had
one child, who was born in Brazil in April 2015 and who currently
lived in Brazil, and that the rest of his family still lived in Haiti, ex-
cept for one brother who lived in Brazil. For the duration of his
testimony, Petitioner essentially restated the facts set out in his No-
vember 2017 I-589 application, adding a few significant details. Pe-
titioner claimed in his testimony that he joined the political group
Pitit Dessalines in 2012, that he had a position with the Pitit Dessa-
lines that involved educating the community about the group’s
ideas for change in the community, and that he also had worked
for Pitit Dessalines in an election overseer capacity in 2010.
Petitioner testified that he left Haiti in 2013 after suffering
political persecution by the AAA party, specifically the allegedly po-
litically motivated attacks mentioned above. Petitioner described
in his testimony the two times Joseph allegedly attacked him at his
Dessalines area pawn shop in July 2012, as well as the October 2012
attack in Gonaives. Petitioner testified that he moved to Port au
Prince after the third attack, but that he left Haiti and traveled to
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8 Opinion of the Court 21-10952
Brazil after Joseph showed up in Port au Prince asking about him.
Petitioner explained that he arrived in Brazil in February 2013,
where he lived and worked until 2016, when he and other Haitians
living in Brazil began to experience discrimination after an eco-
nomic downturn. At that time, Petitioner testified, he decided to
travel to the United States.
On cross-examination, Petitioner offered no good explana-
tion for the inconsistencies between his sworn statement to US im-
migration officials during his initial interview and his subsequent I-
589 applications and testimony. For example, the Government at-
torney pointed out that Petitioner had stated in his June 2016 inter-
view, contrary to his later-filed I-589 applications and testimony,
that he left Haiti for economic reasons, that he had no fear of re-
turning there, and that he had no political affiliation in Haiti. Asked
to explain the conflict, Petitioner stated only that he was “under a
lot of stress” during the June 2016 interview, in part because of the
way he was detained with his hands behind his back. Petitioner
also failed on cross-examination to explain other discrepancies be-
tween his various statements and his testimony—for example, the
number of times he reported Joseph’s attacks to the police—and he
could not remember significant details about the incidents that
were the subject of his testimony, such as the name of the hospital
where he was treated.
After the Government’s cross-examination, the IJ directly
questioned Petitioner as to whether he had used any names other
than his own while traveling to the United States. Petitioner
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21-10952 Opinion of the Court 9
admitted that he had used the name Johnny Joseph or Johnny Dea-
juste, instead of his real name Nelson Dort, to facilitate his move-
ment through various countries. Petitioner also admitted that he
had said he was from Congo rather than Haiti during his journey.
Petitioner explained that it is more difficult for Haitians to pass
through certain places.
At the conclusion of the March 2019 hearing, the IJ deter-
mined that there was sufficient evidence to establish that Petitioner
was firmly resettled in Brazil, including Petitioner’s testimony that
he had residency in Brazil, that he could travel in Brazil, that he
worked in Brazil, and that he had a child who was born in Brazil
and currently lived in Brazil with his mother. Noting that Peti-
tioner had failed to rebut the resettlement evidence or to establish
an exception to the firm resettlement bar, the IJ concluded that he
was statutorily barred from asylum and thus denied his asylum ap-
plication.
The IJ also found that Petitioner’s testimony regarding his
alleged politically motivated 2 persecution in Haiti was not credible
because of numerous inconsistencies between his prior statements
and his testimony at the hearing. In particular, the IJ emphasized
Petitioner’s June 2016 statement to US immigration officials that
he had no fear of returning to Haiti, that he came to the United
2 Petitioner did not present any testimony or evidence below to support the
claim in his I-589 application that he was persecuted on account of his race or
nationality, and he does not pursue that claim on appeal.
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10 Opinion of the Court 21-10952
States for economic reasons, and that he had no political affiliation
in Haiti or any other country. That statement directly contravened
Petitioner’s later-filed I-589 applications and his testimony at the
merits hearing. The IJ also noted other discrepancies related to the
date, number, and manner of Joseph’s alleged attacks and the num-
ber of times Petitioner reported the attacks to the police. Finally,
the IJ found it significant that Petitioner had lied about his name
and country of origin as he traveled through other countries on his
way to the United States. Based on all this evidence, the IJ con-
cluded that Petitioner’s political persecution claim lacked veracity
and that he had not shown he was eligible for withholding of re-
moval.
The BIA affirmed both the IJ’s determination as to the firm
resettlement bar and its credibility findings. Regarding firm reset-
tlement, the BIA noted that DHS had presented substantial evi-
dence that Petitioner received an offer of firm resettlement in Bra-
zil—specifically, Petitioner’s testimony that he was authorized to
work and live in Brazil, that he could travel within the country, that
he had lived there for approximately three years and four months
before traveling to the United States, and that he had a child who
was born in Brazil and who lived there with his mother—which
Petitioner failed to rebut. Based on this evidence, the BIA affirmed
the IJ’s conclusion that Petitioner was not statutorily eligible for
asylum because of his firm resettlement in Brazil.
As to credibility, the BIA concluded that Petitioner was not
entitled to either asylum or withholding of removal as a result of
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21-10952 Opinion of the Court 11
the IJ’s adverse credibility determination. In support of its conclu-
sion the BIA cited: (1) the inconsistency between Petitioner’s state-
ments during his initial interview with US immigration officials, his
two subsequent I-589 applications, and his testimony at the merits
hearing, (2) discrepancies between Petitioner’s two I-589 applica-
tions and his testimony regarding the date, number, and manner of
Joseph’s alleged attacks, and the number of times Petitioner re-
ported the attacks to the police, and (3) Petitioner’s use of false
names and a false country of origin to facilitate his travel to the
United States. The BIA explained that the IJ’s adverse credibility
determination warranted denial of Petitioner’s application for
withholding of removal and that it also constituted an alternative
ground upon which to deny his application for asylum.
Petitioner, proceeding pro se, appeals the BIA’s decision. In
support of his appeal, Petitioner claims that he did not intend to
resettle in Brazil, that he stayed there for only five months, and that
he did not establish significant ties there. Petitioner argues further
that evidence in the record indicates that he was subjected to
threats in Haiti based on his political opinion, and that the evidence
further demonstrates his past and likely future persecution in Haiti
based on his political affiliation. As discussed below, we are unper-
suaded by Petitioner’s arguments and thus affirm the BIA’s deci-
sion denying his application for asylum and withholding of re-
moval.
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12 Opinion of the Court 21-10952
DISCUSSION
I. Standard of Review
“When the BIA issues a decision” in a case arising under the
INA, “we review only that decision, except to the extent the BIA
expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen.,
504
F.3d 1341, 1344 (11th Cir. 2007). “Where the BIA agrees with the
IJ’s reasoning, we review the decisions of both the BIA and the IJ
to the extent of the agreement.” Gonzalez v. U.S. Att’y Gen.,
820
F.3d 399, 403 (11th Cir. 2016).
On petition for review of a BIA decision, we review legal
conclusions de novo and factual determinations under the substan-
tial evidence test. See
id. To apply the substantial evidence test,
we “view the record evidence in the light most favorable to the
[BIA]’s decision and draw all reasonable inferences in favor of that
decision.” Lingeswaran v. U.S. Att’y Gen.,
969 F.3d 1278, 1286
(11th Cir. 2020) (quotation marks omitted). Construing the record
in that manner, we must “affirm the BIA’s factual findings so long
as they are supported by reasonable, substantial, and probative ev-
idence on the record considered as a whole.”
Id. (quotation marks
omitted). To reverse a finding of fact made by the BIA, we “must
find that the record not only supports reversal, but compels it.” Pe-
rez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019)
(quotation marks omitted).
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21-10952 Opinion of the Court 13
II. Asylum and Withholding of Removal
Petitioner’s I-589 application seeks asylum and withholding
of removal pursuant to sections 208(a) and 241(b)(3)(A) of the INA.
To obtain asylum, Petitioner must show that he qualifies as a “ref-
ugee” within the meaning of the INA. INA § 208(b)(1),
8 U.S.C.
§ 1158(b)(1). As relevant here, the INA defines a refugee as an in-
dividual who is outside his home country and who cannot return
to 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.” INA
§ 101(a)(42)(A),
8 U.S.C. § 1101(a)(42)(A).
Petitioner, as the asylum applicant, bears the burden of
proving that he satisfies the INA’s definition of a refugee. See
8 U.S.C. § 1158(b)(1)(B)(i). He can carry that burden by presenting
“specific and credible evidence” that he suffered past persecution
on account of a statutorily listed factor or that he has a “well-
founded fear that the statutorily listed factor will cause future per-
secution.” Ruiz v. U.S. Att’y Gen.,
440 F.3d 1247, 1257 (11th Cir.
2006) (quotation marks omitted). Where an asylum applicant es-
tablishes past persecution, a rebuttable presumption arises that he
has a well-founded fear of future persecution. See
id. If the appli-
cant cannot show past persecution, he must demonstrate a “well-
founded fear of future persecution that is both subjectively genuine
and objectively reasonable.
Id. See also Mehmeti v. U.S. Att’y
Gen.,
572 F.3d 1196, 1200 (11th Cir. 2009) (explaining that an asy-
lum applicant can prove he has a well-founded fear of future
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14 Opinion of the Court 21-10952
persecution by establishing a reasonable possibility he will suffer
persecution based on a protected ground upon return to his home
country).
An applicant who “firmly resettled in another country prior
to arriving in the United States” is statutorily ineligible for asylum.
INA § 208(b)(2)(A)(vi),
8 U.S.C. § 1158(b)(2)(A)(vi). Under the gov-
erning regulations in effect when the IJ denied Petitioner’s asylum
application, the firm resettlement bar applies when “prior to arrival
in the United States, [the applicant] entered into another country
with, or while in that country received, an offer of permanent res-
ident status, citizenship, or some other type of permanent resettle-
ment.”
8 C.F.R. § 1208.15 (effective until Jan. 11, 2021). The regu-
lation provides two exceptions to the firm resettlement bar. First,
an applicant is not considered firmly resettled if he entered the third
country as “a necessary consequence of his . . . flight from persecu-
tion” and if he “remained in that country only as long as was nec-
essary to arrange onward travel, and . . . did not establish significant
ties” there.
Id. § 1208.15(a). Second, an applicant is not considered
firmly resettled if the conditions of his residence in the third coun-
try were “so substantially and consciously restricted by the author-
ity of the country of refuge that he . . . was not in fact resettled.”
Id. § 1208.15(b).
Similar to qualifying for asylum, Petitioner can show he is
entitled to withholding of removal by proving that, if returned to
his country, his life or freedom would be threatened on account of
his “race, religion, nationality, membership in a particular social
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21-10952 Opinion of the Court 15
group, or political opinion.” INA § 241(b)(3)(A),
8 U.S.C.
§ 1231(b)(3)(A). To carry his burden of proof as to withholding of
removal, Petitioner must demonstrate that he would “more likely
than not” be persecuted if returned to his country. D-Muhumed v.
U.S. Att’y Gen.,
388 F.3d 814, 819 (11th Cir. 2004) (quotation marks
omitted). If Petitioner is unable to establish that he qualifies for
asylum, he cannot meet the “more stringent” standard for with-
holding of removal.
Id.
A. Credibility
We consider the credibility issue first, because it is disposi-
tive of Petitioner’s application for asylum as well as his application
for withholding of removal. See
id. (“[B]ecause [the applicant] can-
not meet the ‘well-founded fear’ standard for asylum, it is a fortiori
that he cannot meet the withholding of removal standard.”). As
noted, the IJ excluded the documents Petitioner proffered on the
day of the merits hearing as untimely. Petitioner did not appeal
that decision to the BIA or to this Court, and he did not offer any
other corroborating evidence to support his persecution claim,
which is the basis of his application for asylum and withholding of
removal. “An adverse credibility determination coupled with a
lack of corroborating evidence for a claim of persecution means
that the applicant’s claim fails.” Lyashchynska v. U.S. Att’y Gen.,
676 F.3d 962, 967 (11th Cir. 2012).
Credibility determinations, like other factual findings, “are
reviewed under the substantial evidence test.” Xiu Ying Wu v. U.S.
Att’y Gen.,
712 F.3d 486, 493 (11th Cir. 2013) (“The trier of fact
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16 Opinion of the Court 21-10952
must determine credibility, and this court may not substitute its
judgment for that of the BIA with respect to credibility findings.”
(quotation marks omitted)). Although a credibility determination
may not be based on “speculation and conjecture,” the BIA has
broad discretion to assess an applicant’s credibility and need only
provide “specific, cogent reasons” to support an adverse credibility
determination.
Id. (quotation marks omitted). When the BIA has
made an adverse credibility determination, the applicant has the
burden to show that the determination “was not supported by spe-
cific, cogent reasons or was not based on substantial evidence.”
Id.
(quotation marks omitted).
The BIA provided specific and cogent reasons in support of
its decision to affirm the IJ’s adverse credibility determination here,
namely: (1) Petitioner’s sworn statement to US immigration offi-
cials in June 2016 that he had come to the United States for eco-
nomic reasons, that he had not been harmed, threatened, or other-
wise persecuted in Haiti, that he had no fear of returning to Haiti,
and that he was not a member of a political group in Haiti, all of
which was directly contrary to Petitioner’s later filed I-589 applica-
tions and his testimony at the merits hearing, (2) additional discrep-
ancies between Petitioner’s I-589 applications and his testimony re-
garding the details surrounding the attacks he allegedly suffered,
including the number of attacks, the date they occurred, and the
number of times Petitioner reported the attacks to the police, and
(3) Petitioner’s use of false names and a false country of origin to
facilitate his travel to the United States. Pursuant to the REAL ID
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21-10952 Opinion of the Court 17
Act, which governs Petitioner’s application, the BIA’s stated rea-
sons for affirming the IJ’s adverse credibility determination ae all
relevant and valid considerations. See
8 U.S.C. § 1158(b)(1)(B)(iii)
(“Considering the totality of the circumstances, and all relevant fac-
tors, a trier of fact may base a credibility determination on the de-
meanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s account, the
consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and
considering the circumstances under which the statements were
made), the internal consistency of each such statement, the con-
sistency of such statements with other evidence of record . . . and
any inaccuracies or falsehoods in such statements, without regard
to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim, or any other relevant factor.”).
Furthermore, the reasons set out by the BIA for affirming
the IJ’s adverse credibility determination are supported by substan-
tial evidence in the record. It is undisputed that Petitioner’s initial
statement to US immigration officials directly contravenes his
later-filed I-589 applications and testimony. The only explanation
Petitioner offered for his conflicting statements and testimony is
that he was “stressed” during the June 2016 interview. It was
within the BIA’s discretion to reject that explanation, especially
given that Petitioner swore to the veracity of his June 2016 state-
ment and to the fact that it was made freely and voluntarily. See
Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1233 (11th Cir. 2006)
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18 Opinion of the Court 21-10952
(explaining that an applicant’s explanation for an inconsistency—
even if it is tenable—does not warrant reversal if the explanation
does not “compel a reasonable fact finder to reverse the IJ’s credi-
bility determination”). Petitioner did not offer any explanation for
the other discrepancies noted by the BIA, and he admitted that he
used false information to facilitate his travel to the United States.
In short, there is no basis for overturning the BIA’s decision
to affirm the IJ’s adverse credibility determination. The BIA pro-
vided specific, cogent reasons for its decision, all of which are sup-
ported by substantial evidence in the record. Given that Petitioner
failed to testify credibly as to his persecution claim, and the lack of
any other corroborating evidence to support his claim, we affirm
the BIA’s denial of his application for asylum and his application for
withholding of removal.
B. Firm Resettlement
We note that the BIA also correctly determined that Peti-
tioner is statutorily ineligible for asylum pursuant to the firm reset-
tlement bar. The BIA determined that the bar applied to Petitioner
based on evidence in the record showing that Petitioner had been
offered firm resettlement in Brazil before he entered the United
States in June 2016. There is substantial—and unrebutted—evi-
dence in the record to support that determination. Petitioner ad-
vised US immigration officials during his initial interview that he
had residency in Brazil as well as Haiti, and he later acknowledged
in his I-589 application that he had been given residency status in
Brazil. Petitioner subsequently testified at the merits hearing that
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21-10952 Opinion of the Court 19
he was authorized to work and live in Brazil, that he could travel
within the country, that he had lived in Brazil for approximately
three years and four months before traveling to the United States,
and that he had a child who was born in Brazil and who currently
lived there with his mother. That evidence was more than ade-
quate to show, under the governing regulations in effect at the time
of Petitioner’s merits hearing, that Petitioner had firmly resettled
in Brazil before he traveled to the United States. See
8 C.F.R.
§ 1208.15 (effective until Jan. 11, 2021) (“An alien is considered to
be firmly resettled if, prior to arrival in the United States, he or she
entered into another country with, or while in that country re-
ceived, an offer of permanent resident status, citizenship, or some
other type of permanent resettlement.”). 3
Petitioner did not rebut the evidence relied upon by the BIA
to establish firm resettlement, nor did he offer any evidence to
show that an exception to the firm resettlement bar applied in his
case. Again, under the operative regulations an exception to the
bar applies when: (1) the applicant’s entry into a third country was
“a necessary consequence of his . . . flight from persecution” and
3 The firm resettlement bar would also apply to Petitioner under the current
regulations, which provide, in relevant part and with exceptions that do not
apply here, that an alien is considered to be firmly resettled if he “resided vol-
untarily, and without continuing to suffer persecution 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.” See
8 C.F.R.
§ 1208.15(a)(2) (effective Jan. 11, 2021).
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20 Opinion of the Court 21-10952
he “did not establish significant ties” there, or (2) the conditions of
the applicant’s residence in the third country were “substantially
and consciously restricted by the authority of the country.” See
28
C.F.R. §§ 1208.15(a) and (b) (effective until Jan. 11, 2021). Peti-
tioner admitted in his filings and his testimony below that he lived
in Brazil for more than three years, during which time he estab-
lished significant ties, including fathering a son who as of the time
of Petitioner’s merits hearing still lived in Brazil with his mother.
Petitioner claims in the appellate brief he filed in this Court that he
was only in Brazil for five months, but that claim contradicts all the
evidence presented below. Petitioner also argues in support of his
appeal that he was subject to discrimination in Brazil, but he does
not show—and he made no effort to show below—that the dis-
crimination was imposed by the Brazilian government or that the
conditions of his residence in Brazil were otherwise “substantially
and consciously restricted” by the Brazilian government. See
Id.
§ 1208.15(b). Accordingly, the BIA correctly denied Petitioner’s ap-
plication for asylum on the alternative ground that the application
was precluded by the firm resettlement bar.
CONCLUSION
For the foregoing reasons, we affirm the BIA’s denial of Pe-
titioner’s application for asylum and withholding of removal.
PETITION DENIED
