On April 10, 2020, the Board of Immigration Appeals issued a new published decision titled Matter of K-S-E-. This decision deals with the issue of whether an asylum-seeker is prohibited from obtaining asylum because of “firm resettlement” in another country. The Board decided that an offer of permanent residency, even if not desired or accepted, is enough to bar someone from obtaining asylum in the United States.

The firm resettlement bar is one of the exceptions that make someone ineligible for asylum under Section 208(b)(2)(A) of the Immigration and Nationality Act. Some of the exceptions apply to criminal activity and persecution of other people, but there is also a relatively uncommon bar for people who have been firmly resettled in another country. The intent of the exception is to prevent someone from getting asylum when they can live in another country where they will not be persecuted.

The question is what firm resettlement actually entails and just how much of a possibility that someone could live in another country should preclude them from getting asylum. Matter of K-S-E- involved an applicant for asylum who did not even have the right to live in another country, but rather a potential path to obtaining a period of stay in Brazil. He had not applied for it nor received any actual permission. But the Board found that it was enough that the opportunity existed and that it appeared relatively certain that if he had applied for it, he should have received it.