Abdille v. Ashcroft

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

3-7-2001

Abdille v. Ashcroft
Precedential or Non-Precedential:

Docket 00-1659

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Filed March 7, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1659

MOHAMED ABDILLE, Petitioner

v.

JOHN ASHCROFT,* ATTORNEY GENERAL OF TH E
UNITED STATES, Respondent

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A 77 007 398)

Argued: December 18, 2000

Before: BECKER, Chief Judge, NYGAARD and
FUENTES, Circuit Judges.

(Filed March 7, 2001)

OLGA NARYMSKY, ESQUIRE
(ARGUED)
Hebrew Immigrant Aid Society
333 Seventh Avenue
New York, NY 10001

AMY GOTTLIEB, ESQUIRE
American Friends Service Committee
972 Broad Street, 6th Floor
Newark, NJ 07102

Counsel for Petitioner
_________________________________________________________________

* Substituted for Janet Reno pursuant to Federal Rule of Appellate
Procedure 43(c).
 DAVID W. OGDEN, ESQUIRE
Assistant Attorney General
RICHARD M. EVANS, ESQUIRE
Assistant Director
PAUL FIORINO, ESQUIRE (ARGUED)
MICHAEL P. LINDEMANN, ESQUIRE
ALISON M. IGOE, ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

BECKER, Chief Judge.

Mohamed Jama Abdille, a Somali native, petitions for a
review of a Board of Immigration Appeals (BIA or Board)
decision that: (1) denied him asylum from Somalia on the
ground that he had firmly resettled in South Africa; and (2)
denied him asylum from South Africa on the gr ound that
he failed to establish past persecution or a well-founded
fear of persecution in that country. Abdille's Petition for
Review requires us to interpret for the first time the
meaning of the "firm resettlement" bar to asylum now
codified in the Immigration and Nationality Act (INA), and
further defined in S 208.15 of Title 8 of the Code of Federal
Regulations. This statutory bar, as fleshed out in the
applicable immigration regulations, precludes the Attorney
General from granting asylum to an applicant when the
Attorney General finds that the applicant had firmly
resettled in a third country prior to his arrival in the United
States.

We conclude that the plain language of S 208.15 makes
clear that the prime factor in the firm r esettlement inquiry
is the existence of an offer of permanent resident status,
citizenship, or some other type of permanent r esettlement.
While recognizing that factors other than the issuance of
such an offer may prove relevant to the firm resettlement

2
question, we reject an alternative "totality of the alien's
circumstances" approach that would have us consider the
existence of an offer as simply one component of a broader
firm resettlement inquiry accor ding equal weight to such
non-offer-based factors as the alien's length of stay in a
third country, the economic and social ties that the alien
develops in that country, and the alien's intent to make
that country his permanent home.

In light of this conclusion, we find that the BIA's
discussion of Abdille's firm resettlement in South Africa is
inadequate with regard to whether Abdille received an offer
of some type of permanent resettlement, and that proper
resolution of the firm resettlement issue requires additional
information concerning the content of South African
immigration law and practice. Because of the limited nature
of the record before us on appeal, and because of the
considerable deference we owe to the Immigration and
Naturalization Service (INS) when it makes factual
determinations (and the content of for eign law is a matter
for fact finding), we will grant the Petition for Review and
remand the case to the BIA for: (1) further investigation into
the content of South African immigration law and practice;
and (2) appropriate resolution of the question whether
Abdille received an offer of some type of permanent
resettlement from the South African gover nment.

One critical element in the resolution of thefirm
resettlement question is the determination of whether
Abdille or the government will bear the bur den of
establishing the content of South African law, an issue on
which the parties disagree. To give guidance to the BIA and
to expedite the resolution of this matter , thereby avoiding
another Petition for Review, we address this issue and
opine that the INS, as the party initially seeking to rely on
foreign law, will carry the initial bur den, but that once the
INS introduces evidence sufficient to indicate that the firm
resettlement bar will apply, the burden of proving relevant
provisions of South African law will shift to Abdille. Finally,
we hold that the BIA's conclusion that Abdille failed to
make the requisite showing of past persecution or a well-
founded fear of persecution necessary for eligibility for
asylum from South Africa must stand.

3
I. Facts and Procedural History1

Abdille was born in Somalia in 1967, and was orphaned
at an extremely early age. He never lear ned the identity of
his parents and hence could not trace his clan lineage.
According to an affidavit submitted by Said S. Samatar,
Professor of African History at Rutgers University, clan
lineage is a central feature of social and political life in
Somalia, and an individual's inability to identify himself
with a particular clan can be a substantial, per haps life-
threatening, impediment. Such dangers wer e exacerbated
by the fall of General Siyaad Barre in 1991, after which
central government in Somalia collapsed, and militias,
splintered along clan lines, filled the power vacuum.
Clanlessness is rare in Somalia, and an individual who is
unable to trace his lineage, such as Abdille, is often
suspected of hiding his true affiliation and pr esumed to be
a member of a rival clan.

Prior to General Barre's fall, Abdille led an apparently
ordinary and undisturbed existence in Somalia, employed
as an electrician for Somali National Power in the city of
Mogadishu. After 1991, however, events took a dramatic
turn for the worse: Abdille lost his job, and his lack of clan
identity led to repeated confrontations, detentions, and
physical assaults at the hands of suspicious militia
members.2 Ultimately, in Mar ch 1998, Abdille fled Somalia
_________________________________________________________________

1. The basic facts concerning Abdille's life in Somalia and South Africa,
as well as the circumstances leading up to his application for asylum in
the United States, are not in dispute. Our r ecitation of these facts,
particularly with regard to events in Somalia and South Africa, is drawn
principally from Abdille's affidavit in support of his petition for
asylum,
and a transcript of Abdille's oral testimony befor e the Immigration Judge
(IJ), both of which are contained in the Certified Administrative Record.
The IJ specifically found Abdille's testimony to be credible.

2. Abdille's affidavit and oral testimony depict these events in much
greater detail. For instance, during one detention, Abdille was subjected
to a mock execution. On another occasion, militia members tied Abdille's
hands and feet, repeatedly beat him with sticks, and stabbed his arm
and chest with a bayonet. As part of his application for asylum, Abdille
submitted a report prepared by Dr . Nina Regevik, who conducted a
physical examination of Abdille and concluded that Abdille's scars were
consistent with a history of beatings and stabbings.

4
in a small boat, arrived in Mozambique, and then traveled
on foot to South Africa, entering the latter country in April
1998. We do not believe it necessary her e to canvass the
events in Somalia in a more extensive fashion, as the
parties do not dispute that Abdille satisfied his burden in
establishing past persecution or a well-founded fear of
persecution in Somalia, and that, absent application of the
firm resettlement bar, Abdille would be eligible for asylum
from that country. Abdille's Petition for Review focuses our
attention on the events that transpired in South Africa.

The South African government, acting pursuant to its
Aliens Control Act of 1991, granted asylum to Abdille on or
around June 25, 1998. Abdille's asylum documents show
that such status had a duration of two years, commencing
on June 25, 1998 and expiring on June 24, 2000.
According to a letter from South Africa's Department of
Home Affairs to Abdille, at the end of that two-year period
Abdille would have to contact the Department for a
"reviewal of [his] refugee status or to otherwise legalise [his]
continued stay in" South Africa; otherwise, Abdille would be
in the country illegally, and therefore would be subject to
potential prosecution under the Aliens Contr ol Act. Abdille
was also issued a South African passport, which he
eventually used to enter the United States, and a travel
document allowing him re-entry into South Africa.

Abdille lived in Cape Town, South Africa, fr om April 1998
through January 1999, in a rented gr oup home he shared
with fourteen other Somali natives. Unable to obtain the
necessary certification to pursue his previous career as an
electrician, Abdille worked as a street vendor selling
cigarettes, candy, and other miscellaneous items. While
working as a street vendor, Abdille suf fered two separate
attacks by two different groups of South Africans. First, in
July 1998, as he was selling his merchandise in a public
market, Abdille was approached by a group of five or six
young South African men. The men hit Abdille, knocking
him unconscious with a blow to the back of the head, and
stole his merchandise. Abdille suffer ed facial injuries and
lost several teeth. The other vendors in the market did not
intervene. Following the attack, Abdille reported the
incident to the police. Abdille told the officers that he could

5
identify the assailants, but he testified in pr oceedings
before the Immigration Judge (IJ) that the police did
nothing in response except inform him that he should
return to the station at a later time.

The second incident occurred five months later, in
December 1998, when a separate group of men attacked
Abdille as he was selling his wares in a dif ferent market.
The men stole all of Abdille's merchandise, but Abdille ran
away before he could be physically injur ed. [A.R. 131].
Again, Abdille reported the attack to the police, but was
told to return the next day. Following the December attack,
Abdille decided to leave South Africa and moved to
Johannesburg in order to make preparations for departure.
He remained in Johannesburg for thr ee weeks, leaving in
February 1999. Abdille ultimately arrived in the United
States on April 8, 1999, via Brazil and Chile.

Upon his arrival, Abdille surrendered to INS officials. On
May 19, 1999, INS issued an Order to Show Cause,
charging Abdille with removability under 8 U.S.C.
S 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a
valid immigrant visa or entry document, and 8 U.S.C.
S 1182(a)(7)(A)(i)(II), as an immigrant in possession of a visa
not properly issued. Abdille sought asylum and withholding
of removal relief both from Somalia and from South Africa.
The IJ denied Abdille's asylum request with r espect to
Somalia, on the ground that he had fir mly resettled in
South Africa, and denied his asylum request with respect to
South Africa, on the ground that he had failed to
demonstrate persecution or a well-founded fear of
persecution.3 Abdille appealed, but the BIA similarly denied
his requests for asylum from both Somalia and South
Africa, for the reasons relied upon by the IJ. Abdille now
brings a Petition for Review contesting the BIA's decision.
Because Abdille's removal proceedings wer e commenced
_________________________________________________________________

3. The IJ also denied Abdille's request for withholding of removal to
South Africa, and granted his request for withholding of removal to
Somalia. Abdille did not appeal the IJ's withholding of removal decisions
to the BIA, and does not seek review of those decisions on this appeal.
Accordingly, we need not concern ourselves with the question whether
Abdille was eligible for withholding of removal relief.

6
after April 1, 1997, we have jurisdiction pursuant to 8
U.S.C. S 1252(a)(1).

II. General Asylum Standards

The federal asylum statute confers discretion on the
Attorney General to grant asylum to an alien applicant "if
the Attorney General determines that such alien is a
refugee within the meaning of section 1101(a)(42)(A)." 8
U.S.C. S 1158(b)(1). Section 1101(a)(42)(A) defines "refugee"
as

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 . . . .

8 U.S.C. S 1101(a)(42)(A). The asylum applicant bears the
burden of establishing that he or she falls within this
statutory definition of "refugee." See 8 C.F.R. S 208.13(a)
(2000); see also Balasubramanrim v. INS, 143 F.3d 157,
161 (3d Cir. 1998).

Section 1158(b)(2) lists several exceptions pr oscribing the
Attorney General from exercising his discretion to grant
asylum, including the exception pertinent to this appeal,
added to the federal asylum statute by the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA): Section 1158(b)(2)(A)(vi) bars the grant of
asylum to an alien "firmly resettled in another country prior
to arriving in the United States." 8 U.S.C. S 1158(b)(2)(A)(vi);
see also 8 C.F.R. S 208.13(c)(1) (2000) ("For applications
filed on or after April 1, 1997, an applicant shall not qualify
for asylum if section . . . 208(b)(2) of the Act[8 U.S.C.
S 1158(b)(2)] applies to the applicant.").4

(Text continued on page 9)
_________________________________________________________________

4. The compulsory language of the statute and r egulations makes clear
that a finding of firm resettlement is currently a mandatory bar to the

7
grant of asylum. However, a brief survey of the evolution of the firm
resettlement bar reveals that this was not always the case. The concept
of "firm resettlement" was first introduced into U.S. immigration law in
the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, which used
the concept of firm resettlement in the definition of "displaced person,"
and the Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400,
which expressly included the phrase "fir mly resettled" in the definition
of
"refugee," as a limitation on the persons eligible for such status. See
Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53-54 & n.3 (1971). When the
Refugee Relief Act was extended in 1957, however , the "firmly resettled"
language was dropped from the "r efugee" definition, and was not re-
inserted in subsequent statutory revisions to U.S. refugee laws until the
IIRIRA in 1996 codified the firm r esettlement bar. See 8 U.S.C.
S 1158(b)(2)(A)(vi).

The present firm resettlement bar re-emerged in the Supreme Court's
1971 decision in Yee Chien Woo, a case involving a native of mainland
China, who fled that country in 1953, arrived in the United States in
1960, and eventually applied for an immigrant visa claiming a
"preference" under S 203(a)(7) of the Immigration and Nationality Act of
1952, as an alien who fled a Communist country fearing persecution on
account of race, religion, or political opinion. See 402 U.S. at 50-51,
53.
In the seven years prior to his arrival in the U.S., Yee Chien Woo had
lived and worked in Hong Kong. See id. at 50. The INS used Yee Chien
Woo's residence and work in Hong Kong as a ground for denying his
application, but the Court of Appeals for the Ninth Circuit determined
that the INS's reliance on the alien's fir m resettlement was erroneous.
See id. at 51-52. Pointing to the fact that Congress had omitted the
phrase "firmly resettled" from statutory definitions of "refugee" after
1957, the Ninth Circuit concluded that Y ee Chien Woo's firm
resettlement in Hong Kong was irrelevant to the issue whether his
immigration application should be granted underS 203(a)(7). See id. The
Supreme Court, however, unambiguously r ejected the Ninth Circuit's
approach: "In short, we hold that the `r esettlement' concept is not
irrelevant. It is one of the factors which the Immigration and
Naturalization Service must take into account to determine whether a
refugee seeks asylum in this country as a consequence of his flight to
avoid persecution." Id. at 56.

As the quoted language above demonstrates, following Yee Chien Woo,
"firm resettlement" was not a mandatory bar to asylum eligibility, but
rather one of the factors the INS was to weigh in exercising its
discretion
as to the grant of an alien's asylum application. See, e.g., Farbakhsh v.
INS, 20 F.3d 877, 881 (8th Cir. 1994) (canvassing briefly the history of

8
"Firm resettlement," "persecution," and "well-founded fear
of persecution" are all findings of fact that we review under
the deferential substantial evidence standar d articulated in
INS v. Elias-Zacarias, 502 U.S. 478 (1992)."Substantial
evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Senathirajah v. INS , 157 F.3d 210,
216 (3d Cir. 1998) (internal quotation marks and citation
omitted). Under the substantial evidence standar d, the
BIA's finding must be upheld unless the evidence not only
supports a contrary conclusion, but compels it. See Elias-
Zacarias, 502 U.S. at 481 & n.1; Chang v. INS, 119 F.3d
1055, 1060 (3d Cir. 1997) ("On questions of fact, we will
reverse the BIA's determination that[an applicant] is not
eligible for asylum . . . only if a reasonable fact-finder would
have to conclude that the requisite fear of persecution
existed.") (emphasis added).

III. The Firm Resettlement Inquiry

The BIA denied Abdille asylum from Somalia based on a
finding of firm resettlement in South Africa. As mentioned
_________________________________________________________________

the firm resettlement bar). Prior to 1990, INS regulations prohibited
district directors from granting asylum to aliens who had firmly resettled
in a third country, see 8 C.F.R.S 208.8(f)(1)(ii) (1988), but the BIA
interpreted that regulation as not applying either to immigration judges
or to the Board itself. See Matter of Soleimani, 20 I. & N. Dec. 99, 104
(BIA 1989). Accordingly, for immigration judges and the BIA, firm
resettlement was a factor used to guide their discretion in determining
whether to grant asylum. See 3 Charles Gor don et al., Immigration Law
& Procedure S 33.04[1][e][iii], at 33-52.9 (2000). The BIA did, however,
also rule that firm resettlement would ordinarily preclude an asylum
grant unless the alien could demonstrate compelling countervailing
equities in his or her favor. See Soleimani, 20 I. & N. at 105.

Effective October 1, 1990, the INS amended its regulations concerning
firm resettlement, providing for a mandatory denial of asylum upon a
finding of firm resettlement. See 8 C.F.R. S 208.14(c)(2) (1991);see also
8 C.F.R. S 202.13(c)(2)(i)(B) (2000) (stating that for asylum applications
filed before April 1, 1997, an immigration or asylum officer shall not
grant asylum to any alien who "[h]as beenfirmly resettled."). As noted
above, Congress in 1996 codified this mandatory bar in the federal
asylum statute at 8 U.S.C. S 1158(b)(2)(A)(vi).

9
above, the firm resettlement bar applicable in Abdille's case
is codified in the INA at 8 U.S.C. S 1158(b)(2)(A)(vi), and
referenced in the INS's regulations at 8 C.F.R. S 208.13(c)(1).5
The INA does not furnish a definition of"firm resettlement,"
but federal regulations do, and that definition becomes vital
to our analysis in the instant matter. Specifically, 8 C.F.R.
S 208.15, captioned "Definition of `firm resettlement,' "
provides the following:

An alien is considered to be firmly resettled if, prior
to arrival in the United States, he or she enter ed into
another nation with, or while in that nation r eceived,
an offer of permanent resident status, citizenship, or
some other type of permanent resettlement unless he or
she establishes:

(a) That his or her entry into that nation was a
necessary consequence of his or her flight fr om
persecution, that he or she remained in that nation
only as long as was necessary to arrange onwar d
travel, and that he or she did not establish significant
ties in that nation; or

(b) That the conditions of his or her residence in that
nation were so substantially and consciously r estricted
by the authority of the country of refuge that he or she
was not in fact resettled. In making his or her
determination, the Asylum Officer or Immigration
Judge shall consider the conditions under which other
residents of the country live, the type of housing made
available to the refugee, whether permanent or
temporary, the types and extent of employment
available to the refugee, and the extent to which the
refugee received permission to hold property and to
enjoy other rights and privileges, such as travel
documentation including a right of entry or r eentry,
_________________________________________________________________

5. In their briefs, both Abdille and the INS err oneously assume that 8
C.F.R. S 208.13(c)(2) contains the relevant firm resettlement bar.
However, by its terms, this provision applies only to an alien "who filed
his or her application before April 1, 1997." 8 C.F.R. S 208.13(c)(2)(i)
(2000) (emphasis added). Abdille did not arrive in the United States until
April 8, 1999, and his asylum application is dated July 23, 1999.

10
 education, public relief, or naturalization, or dinarily
available to others resident in the country.

8 C.F.R. S 208.15 (2000) (emphasis added). It is the BIA's
application of this provision that is at issue.

The BIA's reliance on the firm r esettlement bar as its
basis for denying Abdille asylum from Somalia r equires us
to consider the factors that inform a finding of firm
resettlement. Our analysis, of course, is constrained by the
great deference we owe to the INS in immigration matters,
particularly when the agency interprets and applies its own
regulations. See, e.g., INS v. Aguirr e-Aguirre, 526 U.S. 415,
424-25 (1999) (holding that Chevron deference, typically
triggered when an agency construes a statute it is charged
with administering, is appropriate in the immigration
context because of the INA's express delegation of authority
to the Attorney General); Applebaum v. Nissan Motor
Acceptance Corp., 226 F.3d 214, 218 n.4 (3d Cir. 2000)
(noting that when an agency is interpreting its own
regulation, rather than a statute it administers, review is
under the Bowles v. Seminole Rock & Sand Co., 325 U.S.
410 (1945), standard, which renders the agency's
interpretation controlling "unless it is plainly erroneous or
inconsistent with the regulation," id. at 414).

Our principal guide in this endeavor is the language and
structure of 8 C.F.R. S 208.15, the INS's own definition of
firm resettlement. It is readily evident from the plain
language of S 208.15 that the prime element in the firm
resettlement inquiry is the existence vel non of "an offer of
permanent resident status, citizenship, or some other type
of permanent resettlement." 8 C.F .R. S 208.15 (2000). Thus,
on its face, S 208.15 explicitly centers thefirm resettlement
analysis on the question whether a third country issued to
the alien an offer of some type of official status permitting
the alien to reside in that country on a per manent basis.

The alternative approach would have us consider the
existence of a government-issued offer as simply one
component of a broader firm resettlement inquiry according
equal weight to such non-offer-based factors as the alien's
length of stay in a third country, the economic and social
ties that the alien develops in that country, and the alien's

11
intent to make that country his permanent home. Under
such an approach, the IJ and BIA would consider both the
formal issuance of an offer and the existence of various
non-offer-based factors together , as part of the total mix of
information bearing on the firm r esettlement question, and,
after weighing these elements as a whole, would arrive at a
conclusion regarding the applicant's fir m resettlement in
the third country.

Such a "totality of the alien's circumstances"-type of
calculus is suggested by Chinese American Civil Council v.
Attorney General, 566 F.2d 321 (D.C. Cir. 1977), in which
the Court of Appeals for the D.C. Circuit found that
Chinese aliens who had lived in Hong Kong for at least
fifteen years following their flight from mainland China had
firmly resettled in Hong Kong. See id. at 326. In reaching
this conclusion and in elaborating on the fir m resettlement
inquiry, the D.C. Circuit relied principally on non-offer-
based elements, noting that the time elapsed between an
alien's flight from a country of persecution and his
application for asylum in the U.S. is an important factor in
determining whether an alien had fir mly resettled in a third
country, see id. at 328 & n.18, and further stating that
"[a]n applicant's family ties, intent, business or property
connections and other matters may be relevant to
resettlement determinations." Id. at 328 n.18. The court
made no mention of whether the government of Hong Kong
had extended to the aliens an offer of per manent resident
status, citizenship, or some other type of per manent
resettlement.

Although not expressly labeling it as such, other courts
of appeals also appear to have employed a "totality of the
alien's circumstances" approach in thefirm resettlement
context. For example, in Farbakhsh v. INS, 20 F.3d 877 (8th
Cir. 1994), the Court of Appeals for the Eighth Circuit
upheld a BIA decision denying an Iranian national eligibility
for asylum in the United States based on the applicant's
resettlement in Spain. In concluding that the BIA's finding
of firm resettlement was supported by the record, the court
relied on several non-offer-based elements, such as the fact
that the applicant "had lived more than four years in Spain
without fear of being returned to Iran"; that "he initially

12
intended to remain in Spain"; and that "his younger brother
and younger sister were living in Spain." Id. at 882. As in
Chinese American, no explicit mention of the for mal
issuance of an offer of permanent r esettlement was made.
In a similar vein, the Court of Appeals for the Fourth
Circuit appeared to follow a "totality" approach in Mussie v.
INS, 172 F.3d 329 (4th Cir. 1999), deciding that an
Ethiopian citizen had firmly resettled in Germany because
she received asylum status and travel documentation from
the German government, and "[i]n addition, she lived in
Germany for six years, during which time she r eceived
government assistance for language schooling,
transportation, rent, and food; held a job; paid taxes; and
rented her own apartment." Id. at 331-32.

We believe, however, that the plain language of the INS's
own definition of firm resettlement counsels against such a
broad, "totality of the alien's circumstances" analytical
framework. Section 208.15 clearly states that a prima facie
case of firm resettlement is established once the evidence
shows that the asylum applicant received "an offer of
permanent resident status, citizenship, or some other type
of permanent resettlement" in a thir d country. 8 C.F.R.
S 208.15 (2000). Although S 208.15 expr essly enumerates
certain non-offer-based elements, such as "the type of
housing made available to the refugee, . . . the types and
extent of employment available to the refugee, and the
extent to which the refugee received per mission to hold
property," id. S 208.15(b), it prompts the IJ to consider
such factors only in determining whether one of the two
exceptions to the firm resettlement bar provided for in
S 208.15 applies; it does not list these elements in
connection with the prima facie showing of fir m resettlement.6
_________________________________________________________________

6. For example, S 208.15(a), which per mits an alien to rebut the prima
facie showing of firm resettlement by demonstrating that "he or she
remained in that nation only as long as was necessary to arrange
onward travel," authorizes the alien to set forth evidence that "he or she
did not establish significant ties in that nation." 8 C.F.R. S 208.15(a)
(2000) (emphasis added). Similarly, S 208.15(b), which allows an alien to
make this rebuttal showing by establishing"[t]hat the conditions of his
or her residence in that nation were . . . substantially and consciously
restricted by the authority of the country of r efuge," expressly mandates

13
Thus, by its terms, this regulatory pr ovision focuses the
firm resettlement analysis on the existence vel non of a
formal government-issued offer .

We are not the first court to r ecognize the prime
relevance for firm resettlement purposes of a government's
offer of some type of permanent r esettlement: the Court of
Appeals for the Tenth Circuit followed a complementary
analysis in Abdalla v. INS, 43 F.3d 1397 (10th Cir. 1994).
In Abdalla, the court considered the case of a Sudanese
native who was found by the BIA to have fir mly resettled in
the United Arab Emirates (UAE) prior to his arrival in the
United States. See id. at 1398. The court upheld the BIA's
conclusion, focusing principally on the fact that the alien
had lived for twenty years in the UAE under a "r esidence
permit" issued by the UAE government. See id. at 1399. In
effect, the Abdalla court treated the residence permit,
which had apparently conferred on the alien a legal right to
live and work in the UAE for two decades, as dir ect
evidence of a government-issued offer of permanent
resettlement. Importantly, the court went on to note that
this permit, viewed in light of the applicant's twenty-year
stay in the UAE, "was sufficient to suggest per manent
resident status, citizenship or some other per manent
resettlement." Id. at 1399 (inter nal quotation marks and
citations omitted). The court ended its fir m resettlement
analysis by shifting the burden to the alien"to prove that
his extended, officially sanctioned stay in [the UAE] did not
constitute a firm resettlement in the UAE." Id. at 1399
(emphasis added). It ultimately concluded that the alien did
not meet this burden in part because other , non-offer-
based factors, such as the alien's significant family ties to
the UAE, militated in favor of a firm r esettlement finding.
See id. at 1400.
_________________________________________________________________

that an immigration judge, in evaluating the alien's evidentiary
presentation, consider factors such as "the type of housing made
available to the refugee, . . . the types and extent of employment
available to the refugee, and the extent to which the refugee received
permission to hold property and to enjoy other rights and privileges . . .
ordinarily available to others resident in the country." 8 C.F.R.
S 208.15(b) (2000).

14
We acknowledge that circumstances may arise in which
the INS may not be able to secure direct evidence of a
formal government offer of some type of permanent
resettlement, and thus may be not be able to make the
prima facie showing of firm resettlement under S 208.15 in
that manner. In such a situation, the IJ or BIA may find it
necessary to rely on non-offer-based factors, such as the
length of an alien's stay in a third country, the alien's
intent to remain in the country, and the extent of the social
and economic ties developed by the alien, as cir cumstantial
evidence of the existence of a government-issued offer. As
we see it, if direct evidence of an offer is unobtainable, such
non-offer-based elements can serve as a surrogate for
direct evidence of a formal offer of some type of permanent
resettlement, if they rise to a sufficient level of clarity and
force, which we need not here delineate. 7 The Court of
Appeals for the Ninth Circuit faced such a situation in Cheo
v. INS, 162 F.3d 1227 (9th Cir. 1998), as described in the
margin.8 See also Andriasian v. INS, 180 F.3d 1033, 1043
_________________________________________________________________

7. In the instant matter, the INS has adduced some direct evidence that
Abdille received an offer of some type of resettlement from the South
African government. See infra Section IV.A. The INS also points to
certain non-offer-based factors, especially Abdille's employment as a
street vendor and his opportunity to work as an electrician in South
Africa, to bolster its contention that Abdille hadfirmly resettled in that
country. See infra note 9. However, because we reject a "totality of the
alien's circumstances" approach to thefirm resettlement inquiry, and
because the INS has presented direct evidence of a South African
government-issued offer (on which it primarily relied in arguing that
Abdille had received an offer of some type of permanent resettlement
within the meaning of 8 C.F.R. S 208.15), we need not address whether
such factors can serve as circumstantial evidence of a government-
issued offer.

8. In Cheo, two Cambodian nationals, Meng Ly Cheo and Meng Heng
Cheo, sought refuge from their native land, but had lived for three years
in Malaysia prior to their entry into the United States. See 162 F.3d at
1228. In conducting its firm resettlement inquiry, the Ninth Circuit first
noted that "there is no direct evidence one way or the other as to
whether the Cheos have or had the right to r eturn to Malaysia," id. at
1229, and therefore no evidence as to whether they had received an offer
of permanent resettlement from the government of that country. In such
a circumstance, the court contemplated the use of non-offer-based
factors as a substitute for the existence of an of fer as prima facie

15
(9th Cir. 1999) ("In the absence of dir ect evidence of an
offer, a lengthy, undisturbed r esidence in a third country
may establish a rebuttable presumption that an individual
has the right to return to that country and remain there
permanently."); Mussie v. INS, 172 F.3d 329, 332 (4th Cir.
1999) (citing with approval Cheo's pr esumption based on
the length of the alien's stay).

Finally, we note that the emphasis that S 208.15's firm
resettlement calculus places on the existence of a formal
government offer of some type of per manent resettlement is
in keeping with a principal facet of immigration law: A
nation has broad authority to regulate the terms and
conditions under which an individual can be admitted
within its borders, and under which he can seek to
establish a residence therein. See Miller v. Albright, 523
U.S. 420, 453 (1998) (Scalia, J., concurring); Rogers v.
Bellei, 401 U.S. 815, 830-31 (1971). Absent some
government dispensation, an immigrant who surr eptitiously
enters a nation without its authorization cannot obtain
official resident status no matter his length of stay, his
intent, or the extent of the familial and economic
connections he develops. Citizenship or permanent
residency cannot be gained through adverse possession.
With this understanding of the factors under girding the
firm resettlement inquiry in mind, we turn to the BIA's
decision in the instant matter.
_________________________________________________________________

evidence of firm resettlement. Specifically, the court fashioned a
rebuttable presumption of firm r esettlement based on the aliens' length
of stay:

Three years of peaceful residence established that the ground of
`firm resettlement' in Malaysia might apply . . . . That was enough
time so that, in the absence of evidence to the contrary, it would
be
a reasonable inference from the duration that Malaysia allowed the
Cheos to stay indefinitely.

Id.

16
IV. Abdille's Firm Resettlement in South Africa

A.

It appears that the BIA, in reaching the conclusion that
the firm resettlement bar precluded the INS from granting
Abdille asylum from Somalia, relied in part on what it
considered to be an offer made by the South African
government to Abdille of some type of per manent
resettlement. In seeking to make its prima facie showing of
firm resettlement, the INS intr oduced evidence of two South
African government documents approving Abdille's
application for asylum in that country, both contained in
the Certified Administrative Record. Thefirst record is a
Certificate of Exemption entitling Abdille to asylum under
South Africa's Aliens Control Act of 1991 for a two-year
period of exemption commencing on June 25, 1998 and
ending on June 24, 2000. The second is a letter fr om South
Africa's Department of Home Affairs addr essed to Abdille
discussing Abdille's obligations at the conclusion of this
two-year refugee period:

Please note, however, that if at the end of the period of
exemption [i.e., June 24, 2000], you do not wish to
leave [South Africa], the onus rests on you to contact
the Department for the reviewal of your r efugee status
or to otherwise legalise your continued stay in[South
Africa] before the expiry date of your Certificate. Failure
to do so may render you liable to prosecution in terms
of the provisions of the Aliens Control Act, 1991 (Act
96 of 1991).

Although the BIA acknowledged that the Certificate of
Exemption conferring refugee status on Abdille would
expire after a two-year term, it nonetheless concluded that
the issuance of this certificate repr esented an offer of some
type of permanent resettlement within the meaning of 8
C.F.R. S 208.15's firm r esettlement definition because,
according to the BIA's reading of the Department of Home
Affairs letter, Abdille's refugee status "does not simply
terminate" at the end of the two-year exemption period.
Looking at those two documents, the BIA deter mined that

17
the firm resettlement bar applied to Abdille, requiring the
INS to deny Abdille's asylum application.9

We cannot say, however, that the two documents
describing Abdille's refugee status under South African law
constitute substantial evidence supporting the conclusion
that the government of South Africa granted Abdille an offer
of some other type of permanent resettlement. If anything,
these records compel the contrary conclusion--i.e., that
such an offer of resettlement was, by its terms, only
temporary in nature. As is evident from the face of the
Certificate of Exemption, South Africa's of fer to Abdille of
asylum status (and Abdille's acceptance of that of fer)
carried with it an explicit termination date: Abdille's legal
right to reside in South Africa as a refugee exempt from
certain provisions of the Aliens Control Act of 1991 would
end on June 24, 2000. Furthermore, the Department of
Home Affairs letter to Abdille makes clear that, absent
further action on Abdille's part, he would be subject to
prosecution under South African law should he choose to
remain in South Africa after the expiration of the two-year
exemption period on June 24, 2000. Given this plain
language, we are hard-pressed to see how these documents
lend support to the BIA's conclusion that Abdille's refugee
status "does not simply terminate" on June 24, 2000, and
was in fact of a more permanent natur e.

We acknowledge, however, that we lack familiarity with
the intricacies of South African immigration law. While the
_________________________________________________________________

9. The BIA's opinion mentions other non-of fer-based factors such as the
fact that Abdille was issued a travel document granting him the right to
re-enter South Africa after trips abroad; had the opportunity and ability
to rent a private home in Cape Town; and had the opportunity to work
as an electrician if certified. However, fr om the language of the BIA's
decision, it does not appear that the BIA employed these factors in
connection with its determination that Abdille had received an offer of
some other type of permanent resettlement from South Africa. Rather,
the BIA's opinion demonstrates that it employed these factors to
conclude that South Africa did not substantially and consciously restrict
the conditions of Abdille's residence, and thus to reject Abdille's
attempt
to rely on the firm resettlement exception contained in S 208.15(b). On
appeal, Abdille does not challenge the BIA's finding with regard to that
exception.

18
information contained in the Certificate of Exemption and
the Department of Home Affairs letter to Abdille strongly
suggests that the grant of refugee status for afixed term of
two years is something short of an offer of some other type
of permanent resettlement, it may be true that under the
relevant provisions of South African immigration law, or the
application of that law in practice, a refugee's two-year
exemption period will often mature into a mor e permanent
status. For instance, it may be that provisions of the Aliens
Control Act ease the burden on an alien applying for official
permanent resident status if that alien has already received
asylum, or that, as a matter of immigration practice, two-
year refugees like Abdille routinely r eceive a form of
permanent status if they apply for such status prior to the
expiration of the two-year exemption period. The Certified
Administrative Record is completely silent on these points,
however, and at this stage, in the absence of further
evidence, reliance on these contingencies would amount to
nothing more than mere speculation.

The BIA's decision in Matter of D-L- & A-M-, 20 I. & N.
Dec. 409 (BIA 1991), is instructive in this r egard. In D-L- &
A-M-, the BIA found that two Cuban natives seeking asylum
from that country had firmly resettled in Spain, where they
had spent six years prior to their entry into the United
States. See id. at 414. In reaching this conclusion, the
Board appropriately focused on the Spanish government's
official recognition of the aliens' legal right to reside in that
country. Specifically, the BIA noted that the aliens had
received official temporary resident status that was
renewable each year, and, importantly, that this temporary
residency could be converted to permanent residency once
one of the aliens obtained a work contract. See id. at 411,
414. This latter point was established through the cross-
examination testimony of one of the aliens in hearings
before the INS. See id. at 411. In the instant matter, the
proceedings on remand may very well yield similar evidence
of the likelihood that Abdille's fixed, two-year r efugee term
in South Africa will be converted into a mor e permanent
status.

19
B.

As the foregoing discussion demonstrates, pr oper
resolution of the firm resettlement issue requires further
information as to the content of South African immigration
law and practice. Given the limited nature of the record
before us on appeal, and the considerable defer ence we owe
to the INS in immigration matters, we believe it improper
for us to settle the firm resettlement question based on our
hypotheses regarding the type of contingencies that could
have occurred at the end of Abdille's two-year exemption
period under the terms of the Aliens Contr ol Act or its
practical applications.10 Accor dingly, we consider it
necessary to grant Abdille's Petition for Review and to
remand, so that the BIA may further investigate the content
of South African immigration law and practice in general,
and may resolve the specific question whether , under South
African refugee law and practice, the issuance of a
Certificate of Exemption granting an alien r efugee status for
_________________________________________________________________

10. Moreover, we do not believe that the circumstances are appropriate
for us to take judicial notice of the content of South African law on this
appeal. In general, foreign law is treated as a fact that must be proven
by the parties. See, e.g., Black Diamond Steamship Corp. v. Robert
Stewart & Sons, 336 U.S. 386, 397 (1949) ("[T]he Court has adhered to
the general principle that foreign law is to be proved as a fact.");
Intercontinental Trading Co., Inc. v. M/V Zenit Sun, 684 F. Supp. 861,
864 (E.D. Pa. 1988) ("No proof having been presented at trial as to
Chilean law, the court cannot take judicial notice of the law of Chile
. . . ."). Although federal courts have discr etionary authority to
judicially
notice the laws of foreign countries pursuant to the fact-finding
procedure contained in Fed. R. Civ. Pr o. 44.1, see 1 Jack B. Weinstein
& Margaret A. Berger, Weinstein's Federal Evidence S 201.52[3][b], at
201-94 (Joseph M. McLaughlin ed., 2d ed. 2000); see also Sidali v. INS,
107 F.3d 191, 197 n.9 (3d Cir. 1997), because such a procedure was not
followed in the instant matter, we will r efrain from judicially noticing
the
content of South African refugee law.

We did conduct a preliminary investigation into South African law, to
see whether an issue existed with respect to the consequences that
Abdille would experience under South African immigration law and
practice upon the expiration of his two-year r efugee period. The
information we obtained suggested that such an issue did exist, and we
therefore concluded that remand to the BIA was the appropriate avenue
for resolution of that issue. We did not use the information we gathered
except in this preliminary fashion, and, as noted above, we decline to
judicially notice it.

20
a fixed two-year term amounted to an of fer of some other
type of permanent resettlement within the meaning of
S 208.15. On remand, both Abdille and the INS should be
afforded an opportunity to supplement the record by
presenting evidence bearing on these issues. Of course, we
express no opinion as to the proper r esolution of the
question whether Abdille had firmly r esettled in South
Africa.11

V. The Burden of Proof as to the Content of
South African Law

Because the substance of South African immigration law
will prove highly relevant to the final disposition of the firm
resettlement issue, and in the interest of providing some
further guidance on remand, we need to consider the issue
of which party--Abdille or the government--will bear the
burden of establishing the content of South African law on
remand. We note in this regar d that in our discussion
above, we implicitly addressed part of this bur den
allocation issue when we referenced the government's
burden to make the prima facie showing of fir m
resettlement. We now make this discussion explicit.

Although this precise issue was not addr essed by the
BIA's decision in Abdille's matter, a long line of BIA case
law establishes that "[f]oreign law is a matter to be proven
by the party seeking to rely on it." Matter of Soleimani, 20
I. & N. Dec. 99, 106 (BIA 1989). Ordinarily, it is the asylum
applicant who seeks the benefit of foreign law, and thus
carries the burden of demonstrating its content. See, e.g.,
Sadeghi v. INS, 40 F.3d 1139, 1143 (10th Cir. 1994)
_________________________________________________________________

11. On appeal, Abdille argues in the alter native that the BIA's finding
of
firm resettlement in South Africa was erroneous because Abdille fell
within one of the two exceptions to the fir m resettlement bar contained
in 8 C.F.R. S 208.15--i.e., he established "[t]hat his or her entry into
that
nation was a necessary consequence of his or herflight from
persecution, that he or she remained in that nation only as long as was
necessary to arrange onward travel, and that he or she did not establish
significant ties in that nation." 8 C.F .R. S 208.15(a) (2000). Because we
remand to the BIA for further proceedings in connection with the firm
resettlement issue, we will not address the merits of Abdille's
contention.

21
("Placing the burden of proving for eign law on a petitioner
is consistent with the general rule that the petitioner bears
the burden of proof "); Matter of Annang, 14 I. & N. Dec.
502, 503 (BIA 1973) ("[T]he law of a for eign country is a
question of fact which must be proved by the petitioner if
he relies on it to establish eligibility for an immigration
benefit.").

The BIA, however, has had occasion to apply this rule in
order to place burdens on the gover nment. In Soleimani,
the immigration judge found that an Iranian Jew hadfirmly
resettled in Israel, relying principally on the assumption
that, because Israel's Law of Return granted all members of
the Jewish faith the right to Israeli citizenship, it was
probable that the alien had received an of fer of resident
status, citizenship, or some other type of per manent
resettlement from the Israeli gover nment. See 20 I. & N.
Dec. at 102. Observing that the record contained no
evidence "documenting the nature and purpose of Israel's
Law of Return or the specific provisions of that law," the
BIA reversed the immigration judge's finding on the ground
that "[f]oreign law is a matter to be pr oven by the party
seeking to rely on it, and the Immigration and
Naturalization Service has submitted nothing of r ecord
regarding Israel's Law of Return." Id. at 106.

The rule that foreign law is a matter to be pr oven by the
party seeking to rely on it must, at all events, be read in
conjunction with the INS regulations establishing the
general burden of proof allocation with r espect to the firm
resettlement issue. The pertinent regulatory provision is 8
C.F.R. S 208.13(c)(2)(ii), which states the following: "If the
evidence indicates that one of the above gr ounds [including
the firm resettlement bar] apply to the applicant, he or she
shall have the burden of proving by a pr eponderance of the
evidence that he or she did not so act." 8 C.F .R.
S 208.13(c)(2)(ii) (2000) (emphasis added). 12 The burden
_________________________________________________________________

12. As a formal matter, we note that, by its terms, the burden scheme
contemplated in 8 C.F.R. S 208(c)(2)(ii) applies only to firm resettlement
bar contained in 8 C.F.R. S 208(c)(2)(i)(B), which itself applies only to
asylum applications filed before April 1, 1997. Abdille's application was
filed after April 1, 1997, and thus the fir m resettlement bar applicable
to

22
allocation regarding firm r esettlement is thus evident from
the language of S 208.13(c)(2)(ii). Under the regulations, the
INS bears the initial burden of producing evidence that
indicates that the firm resettlement bar applies, and,
should the INS satisfy this threshold bur den of production,
both the burden of production and the risk of non-
persuasion then shift to the applicant to demonstrate, by a
preponderance of the evidence, that he or she had not
firmly resettled in another country. See, e.g., Mussie v. INS,
172 F.3d 329, 332 (4th Cir. 1999) (applying the
S 208.13(c)(2)(ii) burden framework, and noting that "[o]nce
the INS met its burden of introducing some evidence
indicating that [the applicant] had been `firmly resettled' in
Germany, [the applicant] bore the burden of demonstrating,
by a preponderance of the evidence, that she had not been
resettled"); see also Abdalla v. INS, 43 F.3d 1397, 1399
(10th Cir. 1994) ("Once the government presents some
evidence indicating that asylum is unavailable on gr ounds
of firm resettlement . . . the petitioner bears the burden of
proving by a preponderance of the evidence that such
grounds do not apply.") (citations and inter nal quotation
marks omitted); Chinese American Civil Council v. Attorney
General, 566 F.2d 321, 328 n.18 (D.C. Cir . 1977)
("Resettlement is largely a factual question which, once that
fact appears of record, the applicants bear the burden of
overcoming.").

We conclude that the burden allocation scheme
established by the applicable INS regulations is controlling.
Both the INS and Abdille may, at differ ent points in the
immigration proceeding, constitute parties seeking to rely
on foreign law and, under the regime cr eated by the
regulations, both may consequently bear the bur den of
producing evidence of the substance of South African
immigration law and practice. Specifically, the INS will
_________________________________________________________________

his case is found not in the INS regulations, but rather in the federal
asylum statute, at 8 U.S.C. S 1158(b)(2)(A)(vi). See supra note 4 and
accompanying text. Nonetheless, we find no r eason to believe that
Congress, by codifying the firm r esettlement bar, intended to alter the
burden scheme contained in 8 C.F.R.S 208.13(c)(2)(ii) and, accordingly,
will apply that scheme to Abdille's case.

23
clearly carry the initial burden of setting forth evidence that
"indicates" that Abdille had firmly r esettled in South Africa,
and, to the extent that the INS relies on pr ovisions of South
African law--e.g. asylum provisions found in the Aliens
Control Act--to demonstrate that the South African
government granted Abdille "an offer of permanent resident
status, citizenship, or some other type of per manent
resettlement" within the meaning of 8 C.F .R. S 208.15's firm
resettlement definition, it will thus carry the burden of
setting forth evidence of the substance of that law.

Should the INS meet this threshold burden of production,
however, the burden of introducing evidence to overcome
the firm resettlement finding would shift to Abdille, the
asylum applicant. If Abdille then seeks to use the
substance of South African law to rebut thefirm
resettlement finding--e.g., by pointing to particular
provisions of the Aliens Control Act thatfix the term of
refugee status to two years in order to r ebut the suggestion
that he was issued an offer of permanent resettlement--
Abdille will carry the burden of setting forth the relevant
content of South African immigration law and practice.
Moreover, as contemplated in S 208.13(c)(2)(ii)'s allocation
scheme, once the government carries its bur den of
production by setting forth evidence that "indicates" that
firm resettlement has occurred, Abdille also bears the
ultimate burden of persuasion. That is, insofar as Abdille
relies on provisions of South African law to defeat the firm
resettlement bar, he must prove by a preponderance of the
evidence that those provisions render thefirm resettlement
bar inapplicable to his case.

VI. Asylum from South Africa

The BIA rejected Abdille's request for asylum from South
Africa based on the attacks and the alleged harassment he
experienced during his ten months in that country. As
discussed supra in Part II, to be eligible for asylum in the
United States as a refugee, an alien must demonstrate
"persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion." 8 U.S.C.
S 1101(a)(42)(A). The BIA agreed with the IJ that Abdille had

24
failed to carry his burden with respect to establishing either
past persecution or a well-founded fear of futur e
persecution. Because this issue was squarely pr esented in
Abdille's Petition for Review and was fully ar gued, and
because the question whether Abdille experienced
persecution or a well-founded fear of persecution is
independent of the question whether Abdille wasfirmly
resettled in that country, we do not believe that remand of
this issue to the BIA is warranted. We ther efore proceed to
the merits. In light of the deference we owe to the BIA's
factual findings under the standard of r eview established in
INS v. Elias-Zacarias, 502 U.S. 478 (1992), and for the
reasons that follow, we cannot say that the r ecord evidence
compels a conclusion contrary to the BIA's and,
accordingly, we decide that the BIA's decision with respect
to Abdille's request for asylum from South Africa must
stand.

A.

Abdille first argues that the BIA's deter mination that
Abdille had not established past persecution was not
supported by the record evidence. Under 8 C.F.R.
S 208.13(b)(1) (2000),

[a]n applicant shall be found to be a r efugee on the
basis of past persecution if he or she can establish that
he or she has suffered persecution in the past in his or
her country of . . . last habitual residence on account
of race, religion, nationality, membership in a
particular social group, or political opinion, and that he
or she is unable or unwilling to return to or avail
himself or herself of the protection of that country
owing to such persecution.

Abdille's claim of persecution in South Africa does not arise
out of any official action or policy instituted by the South
African government. Rather, Abdille alleges persecution at
the hands of private groups of attackers that the South
African government was either unable or unwilling to
control. See Singh v. INS, 94 F .3d 1353, 1360 (9th Cir.
1996) ("Persecution meted out by groups that the
government is unable or unwilling to contr ol constitutes

25
persecution under the [Immigration and Nationality] Act.
Non-governmental groups need not file articles of
incorporation before they can be capable of persecution.")
(citation omitted).

To establish past persecution, Abdille set forth evidence
establishing that he had suffered individualized attacks,
coupled with documentary evidence attempting to link his
personal experiences of harassment and violence with the
experiences of other similarly situated Somali and African
refugees living in South Africa. Abdille's individualized
evidence, primarily testimonial in nature, demonstrated
that Abdille had suffered two separate attacks while
working as a street vendor in public marketplaces in Cape
Town. The first occurred in July 1998, when a group of five
or six South Africans assaulted Abdille, knocking him
unconscious and stealing his merchandise. Abdille went to
the police station to make a report concer ning the incident,
but the officers told him to return at a later time.13 The
second attack took place five months later , when a different
group attacked Abdille in a separate market. Abdille fled
before he could be injured, but the gr oup did steal all of his
goods.

Abdille's documentary evidence, consisting of r eports on
South Africa issued by human rights groups and
newspaper stories printed in South African newspapers,
described in general the xenophobic attitudes taken by
South African citizens and politicians towar d African
immigrants, and specifically identified instances of violent
acts committed against foreigners, including foreign street
vendors working in cities such as Cape Town. Among the
_________________________________________________________________

13. The Certified Administrative Record is unclear as to whether Abdille
did in fact return to the police station to prosecute his claim. In
proceedings before the IJ, Abdille testified on direct examination that
after he reported the July 1998 attack to the police, "they told me every
day come back, come back and they haven't did anything for me,"
suggesting that Abdille did make subsequent visits that were ultimately
unavailing. On the other hand, while being cr oss-examined by the INS
concerning this first police report, Abdille appeared to concede that he
did not in fact return to the station:"I never went back that day but are
there [sic] more than 10 times they say come back and they didn't do
anything for me."

26
most pertinent such documents contained in the Certified
Administrative Record are: (1) a Mar ch 1998 report issued
by Human Rights Watch; (2) a December 1998 r eport put
forth by the South African Human Rights Commission; and
(3) two stories from the August 6, 1998 issue of Cape
Times, a Cape Town newspaper. The Human Rights Watch
and South African Human Rights Commission reports
document harassment of street vendors similar to that
experienced by Abdille.14

The BIA, after noting that Abdille had "intr oduced
evidence of criminal behavior by private individuals in
South Africa and disturbing documentary evidence of
xenophobia in South Africa," concluded that Abdille had
failed to sufficiently establish past persecution on account
_________________________________________________________________

14. The Human Rights Watch report, titled "Prohibited Persons: Abuse of
Undocumented Migrants, Asylum-Seekers, and Refugees in South
Africa," contains the following passage:

Foreign hawkers, often asylum applicants with temporary residence
permits, have repeatedly been the tar gets of violent protests and
other forms of intimidation as local hawkers attempt to "clean the
streets of foreigners." During r epeated violent protests in
Johannesburg, South African traders and or dinary criminals have
brutally beaten foreign hawkers, and stolen their goods. Hawkers
interviewed by Human Rights Watch who wer e the targets of such
abuse universally complained to us that the police had done little
or
nothing in response to their complaints. . . . Human Rights Watch
interviewed members of a large community of Somali asylum-
seekers who had been forced to abandon their trade and who told
Human Rights Watch that they now never left their overcrowded and
impoverished compound unless they were in a lar ge group, in order
to protect themselves from attacks by hostile "locals."

A similar account of violence against foreign street vendors appears in
the South African Human Rights Commission's r eport, titled "1999 Plan
of Action: Roll Back Xenophobia Campaign":

Vigilante groups have vowed to clear for eign traders off the
streets
of Johannesburg, Port Elizabeth and Cape T own. They inflame
public opinion with the perception that for eign traders take away
jobs from locals by unfairly competing for customers, space and
markets. As part of ongoing, hostile campaigns, mobs are raiding
foreign hawkers, often causing bodily har m, vandalising their
stalls
and stealing their goods.

27
of one of the five protected factors listed in the statutory
definition of refugee, because he could not demonstrate
that the violence he suffered was perpetrated by persons
that the government was unwilling or unable to control. To
buttress this conclusion, the BIA pointed to the fact that
there was no evidence that Abdille was harassed or
disturbed in Johannesburg during his thr ee-week stay
there; that the two attacks Abdille experienced were
committed by two separate groups of people; that Abdille
could not identify his assailants; and that after r eporting
the attacks to the police, Abdille failed to pr osecute these
charges by returning to the station, as requested by the
police.15
_________________________________________________________________

15. The BIA does not appear entirely corr ect with respect to the latter
two points. The BIA's claim that Abdille could not identify his assailants
is partially undermined by Abdille's testimony before the IJ concerning
his response to the first attack in July 1998: "When I went down [to] the
police station, . . . I told them I even know the people who attack me
because some of them they collect the money in the bus station where
I sell my merchandise." The INS concedes that Abdille could identify the
perpetrators of this first assault. The recor d appears silent on the
issue
of whether Abdille could identify the December 1998 attackers.

With respect to the BIA's assertion that Abdille failed to return to the
police station following his reports of the attack, as directed, the
record
is not as clear as the BIA appears to assume. As mentioned supra in
note 13, the evidence is ambiguous as to whether Abdille visited the
police station after reporting the first attack. With regard to the second
assault, Abdille testified that he reported the incident to the police,
and
"[t]hey said they make appointment and they told me come back
tomorrow." The record is silent as to whether Abdille returned the next
day as instructed.

Although the BIA's characterization of the r ecord evidence may not
have fully accomodated these ambiguities in the r ecord, such error does
not ultimately affect our decision to uphold the BIA's denial of Abdille's
request for asylum from South Africa. For the reasons stated in the text
above, the evidence Abdille did introduce to establish past persecution
and a well-founded fear of persecution simply does not compel a
conclusion contrary to the BIA's, even if we discount the evidence
supporting the BIA's determination so as to take account of its failure to
recognize either the fact that Abdille could identify the perpetrators of
the first assault, or that Abdille may have made some effort to follow up
on his report of the first incident to the police.

28
To be sure, the record evidence put forth by Abdille is
consistent with his theory of persecution. Abdille's
testimony demonstrates that he experienced individualized
harassment, and the documentary evidence rescribed in the
margin, supra at note 14, tends to show that these attacks
could have been the product of a more generalized animus
among segments of the South African public dir ected at
foreign asylum seekers, particularly those r efugees working
as street vendors in cities like Cape T own. Furthermore,
Abdille's testimony concerning the police's lackadaisical
responses to his reports is in accor d with descriptions
found in the human rights reports introduced by Abdille of
police inaction in the face of private violence against foreign
street vendors.

However, the evidence put forth by Abdille is also
consistent with acts of private violence that fall short of
persecution on account of race, nationality, or membership
in a particular social group. The assaults experienced by
Abdille at the hands of two different sets of assailants could
represent random street violence, motivated not by
animosity against a particular ethnic group, but rather by
arbitrary hostility or by a desire to r eap financial rewards.
Such ordinary criminal activity does not rise to the level of
persecution necessary to establish eligibility for asylum.
See, e.g., Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998)
("Mere generalized lawlessness and violence between diverse
populations, of the sort which abounds in numer ous
countries and inflicts misery upon millions of innocent
people daily around the world, generally is not sufficient to
permit the Attorney General to grant asylum . . . .");
Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)
("[P]ersecution on account of political opinion no longer can
be inferred merely from acts of random violence . . . ."). It
is also important to note that Abdille was not har med in
South Africa except when he was engaged in vending
activities in public marketplaces.

In an attempt to establish that he was the victim of
persecution, and not just the target of or dinary street
violence, Abdille asserts that his situation is identical to the
one found in the BIA's recent decision in In re O-Z- & I-Z-,
Int. Dec. No. 3346, 1998 WL 177674 (BIA Apr. 2, 1998), in

29
which the BIA concluded that acts of harassment
committed by the "Rukh," a pro Ukranian independence
group, against a Jewish Ukrainian citizen who advocated
unification with Russia, rose to the level of persecution.
What Abdille fails to explain, however, is that the record
evidence in O-Z- & I-Z- made readily apparent the fact that
the "Rukh" assailants were motivated by a desire to
penalize the victim's religion. For example, the evidence
showed that anti-Semitic leaflets distributed by the "Rukh"
were left in the victim's clothing and at his home; that the
victim suffered two assaults resulting in physical injuries
while on his way home from work and at a bus stop near
his home, during which anti-Semitic remarks wer e directed
at him; and that the victim's son suffer ed physical and
verbal abuse at school as a result of his Jewish
background. In contrast to the direct pr oof of ubiquitous
religion-based animus presented by the asylum applicant in
O-Z- & L-Z-, in the proceedings befor e the IJ, Abdille offered
no such comparable evidence, relying instead on
descriptions of a generalized climate of hostility in South
Africa toward African refugees and for eign street vendors
found in human rights groups' reports and newspaper
articles.

Aside from such documentary evidence, Abdille furnished
no evidence demonstrating that the two attacks he
experienced in July and December of 1998 wer e not mere
acts of random lawlessness, but rather were perpetrated on
account of his race, nationality, or membership in a
particular social group. Such tenuous evidence may
support an inference that the assaults Abdille suffered rose
to the level of persecution, but it does not compel such a
conclusion. Accordingly, given our defer ential review, the
BIA's decision as to past persecution must stand.

B.

Abdille also avers that the BIA's determination that
Abdille failed to establish a well-founded fear of persecution
was not supported by record evidence. Under 8 C.F.R.
S 208.13(b)(2) (2000),

[a]n applicant shall be found to have a well-founded
fear of persecution if he or she can establish first, that

30
 he or she has a fear of persecution in his or her
country of . . . last habitual residence on account of
race, religion, nationality, membership in a particular
social group, or political opinion; second, that there is
a reasonable possibility of suffering such persecution if
he or she were to return to that country; and third,
that he or she is unable or unwilling to retur n to or
avail himself or herself of the protection of that country
because of such fear.

Establishing a well-founded fear of persecution does not
require the alien to demonstrate that persecution is more
likely than not to occur; rather, fear of persecution "can be
well-founded even `when there is a less than 50% chance of
the occurrence taking place.' " Chang v. INS, 119 F.3d
1055, 1066 (3d Cir. 1997) (quoting INS v. Cardozo-Fonseca,
480 U.S. 421, 431 (1987)).

Furthermore, the demonstration of a well-founded fear of
persecution carries both a subjective and an objective
component. The alien must "show that he has a subjective
fear of persecution that is supported by objective evidence
that persecution is a reasonable possibility." Id. There is no
question that Abdille's fear of future persecution in the
event of a return to South Africa is subjectively genuine;
the only issue is whether that subjective state of mind is
buttressed by objective evidence that a r easonable person
in Abdille's circumstances would also fear persecution.

In reaching its conclusion that Abdille had not
established a well-founded fear of future persecution, the
BIA relied primarily on the fact that Abdille had failed to
establish that his fear of persecution exists country-wide,
and is not confined solely to the Cape Town area. The
requirement of demonstrating a country-wide fear of
persecution is evident from the BIA's r ecent decision in In
re C-A-L-, Int. Dec. No. 3305, 1997 WL 80985 (BIA Feb. 21,
1997), in which a Guatemalan citizen and for mer soldier
who had participated in missions against the guerrillas
operating in that country sought asylum from Guatemala,
claiming that he feared that guerrilla gr oups would
persecute him due to his past military service against them.
The BIA rejected the applicant's asylum claim, on the
ground that documentary evidence demonstrated that

31
guerrilla activity in Guatemala was localized in particular
regions of the country; that the evidence of guerilla activity
specifically targeting the soldier showed that such activity
was confined to the soldier's hometown; and that the
applicant had acknowledged that he had been able to move
to and live in other regions of Guatemala without incident.
Stating that "an alien seeking to meet the definition of a
refugee must do more than show a well-founded fear of
persecution in a particular place within a country," the BIA
concluded that the applicant's "asylum claim must. . . be
denied because he has not provided any convincing
evidence to suggest that his fear of persecution would exist
throughout Guatemala."

Further, in Etugh v. INS, 921 F .2d 36 (3d Cir. 1990), we
employed an almost identical analysis in a case involving a
Nigerian citizen seeking asylum from his native country.
The applicant claimed that he feared persecution upon
return to Nigeria, due to factional fighting between
residents of his hometown Akirika and townspeople in the
nearly village of Abala. See id. at 37. The BIA had
concluded that the applicant had failed to make the
requisite prima facie showing of a well-founded fear, in part
because he had not established that his safety would be
threatened in parts of Nigeria outside of Akirika. We agreed,
stating that the applicant "failed to allege[that] he would be
persecuted beyond the local vicinity of his hometown,
Akirika" and that "deportation would not r equire [the
applicant] to return to the purportedly dangerous region of
Nigeria where he formerly lived." Id. at 39.

Abdille claims that the record evidence supports a fear of
persecution throughout South Africa. Having examined the
exhibits in the Certified Administrative Recor d, we cannot
agree. By and large, the majority of Abdille's evidence--and
certainly the most probative items--focused on harassment
and violence only in the Cape Town region of South Africa,
which contains but a small part of the country's
population. Acts of past persecution suffer ed by an alien
are often the best objective evidence supporting the
applicant's fear of future persecution, cf. 208.13(b)(1)(i) ("If
it is determined that the applicant has established past
persecution, he or she shall be presumed also to have a

32
well-founded fear of persecution . . . ."), but the
individualized acts of persecution Abdille claims to have
experienced occurred only in Cape Town, and only at times
Abdille was working as a street vendor selling goods in
public marketplaces.

Moreover, as suggested above, the r ecord contains no
evidence indicating that after Abdille moved to
Johannesburg in January 1999, his three-week stay there
was disturbed, and, more importantly, Abdille admitted
that he never attempted to live in any region of South Africa
other than Cape Town and Johannesburg. Finally, the most
pertinent pieces of documentary evidence--i.e., those
reports relating attacks on foreign street vendors, rescribed
supra in note 14--describe such assaults as occurring in
areas around the cities of Cape Town, Port Elizabeth, and
Johannesburg; they do not mention whether similar anti-
foreigner campaigns exist in other regions of South Africa.
Under Elias-Zacarias's deferential standard, we cannot say
that such evidence compels a conclusion contrary to the
BIA's determination that Abdille failed to establish a well-
founded fear of persecution. Accordingly, the BIA's decision
as to Abdille's well-founded fear must stand.

VII. Conclusion

We conclude that the BIA's consideration of the question
whether Abdille received an offer of some type of permanent
resettlement from the South African gover nment was
incomplete. We will therefore grant Abdille's Petition for
Review, and remand to the BIA for investigation into the
content of South African immigration law and practice, for
resolution of the question whether Abdille r eceived an offer
of some type of permanent resettlement, and for such
further proceedings as are necessary to determine Abdille's
immigration status. However, we also conclude that the BIA
did not err in denying Abdille asylum from South Africa on
the ground that he failed to make the r equisite showing of
past persecution or a well-founded fear of persecution, and
deny the Petition for Review to that extent.

33
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

34