9th Circuit: BIA Erred in Denying Asylum to Applicant Not Firmly Resettled in Third Country

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

NINTH CIRCUIT: BIA ERRED IN DENYING ASYLUM TO APPLICANT NOT FIRMLY RESETTLED IN THIRD COUNTRY (ANDRISIAN V. INS)
Immigrants' Rights Update, Vol. 13, No. 4, June 30, 1999

The Ninth Circuit Court of Appeals has found that the Board of Immigration Appeals erred in denying asylum in its discretion to a petitioner who temporarily stayed in a third country but did not resettle there.

The petitioner, an Azeri of Armenian descent surnamed Andriasian, suffered persecution in Azerbijan on the basis of his Armenian descent. In the 44 months that followed the persecution in Azerbijan, Andrisian moved 9 times and spent 22 months in Armenia before coming to the United States.

While in Armenia, Andrisian and his family were dubbed "traitors" by Armenians and accused of being true Azeris, not Armenians. An attempted rape occurred against Andriasian’s wife, and his daughters were mocked by Armenian children. The family faced harassment because of their Baptist religion, which differed from the majority Armenian Apostolism. The family also received a death threat. Armenia did not have procedures in place for refugees to apply for asylum or citizenship. Andriasian asked the Armenian government for temporary resident status and was told to go to Karabakh, a province in Azerbijan, to live with other Azerbijanis.

The BIA granted Andriasian withholding of deportation to Azerbijan. It also found him eligible for asylum but denied it to him in its discretion solely on the basis that he had "spent a considerable amount of time" in Armenia.

Pursuant to 8 CFR section 208.13(d), an asylum application may be denied in the discretion of the attorney general if an alien can be removed to a third country which has offered resettlement and in which an alien would not face harm or persecution. In reaching its decision to deny asylum to Andrisian, the BIA did not address 8 CFR section 208.13(d). Rather it analyzed a different section of the regulations and relied on case law that was decided prior to the issuance of section 208.13(d). The Ninth Circuit concluded that the BIA committed a clear legal error by disregarding the pertinent section of the regulation.

Upon review of the pertinent section, the court found that the BIA erred in in denying asylum to Andrisian. The court concluded that he had not been offered resettlement in a third country. In addition, the Ninth Circuit noted that the BIA found that "evidence of record supports the contention that the respondent may likely face further discrimination and harassment" if he is returned to Armenia. The court found that this constitutes sufficient harm to preclude a discretionary denial of asylum. The court reversed the BIA and remanded with instructions that the asylum petition be granted.

Andriasian v. INS, __ F.3d __, 1999 WL 378295 (9th Cir. June 11, 1999).