                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2511


GHENET DEBESAI NAIZGHI,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General, 1

                Respondent.



                              No. 14-1530


GHENET DEBESAI NAIZGHI,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petitions for Review of Orders of the Board of Immigration
Appeals.


Argued:   October 30, 2014              Decided:   September 10, 2015

     1 Loretta E. Lynch is substituted as Respondent for her
predecessor, Eric H. Holder Jr., as Attorney General of the
United States. See Fed. R. App. P. 43(c)(2).
Before TRAXLER,   Chief   Judge,   and   KING   and   THACKER,   Circuit
Judges.


Petitions for review denied by unpublished per curiam opinion.
Chief Judge Traxler wrote a dissenting opinion.


ARGUED: Monalisa Dugue, Geoffrey James Heeren, VALPARAISO
UNIVERSITY LAW CLINIC, Valparaiso, Indiana, for Petitioner.
Corey Leigh Farrell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.    ON BRIEF: Sara Dietrich,
Cecilia Lopez, Michelle Prasad, VALPARAISO UNIVERSITY LAW
CLINIC, Valparaiso, Indiana, for Petitioner. Joyce R. Branda,
Acting Assistant Attorney General, Terri J. Scadron, Assistant
Director, Civil Division, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.




                                   2
PER CURIAM:

            Ghenet Debesai Naizghi (“Petitioner”) fled Eritrea in

1994, lived in Italy until 2009, and then applied for United

States     asylum     status      in        2010.       The      Government        opposed

Petitioner’s request for asylum, arguing that she was firmly

resettled in Italy and, therefore, barred from asylum relief.

Specifically, the Government argued that Petitioner was firmly

resettled     because       she     was      eligible       to   apply     for     Italian

citizenship; secured an Italian work permit; and was able to

travel,    work,    and   obtain       medical       care   in    Italy.       For   these

reasons,    the     Immigration           Judge      (“IJ”)      and     the   Board   of

Immigration       Appeals     (“Board”)           denied      Petitioner’s        request.

Petitioner sought review by this court.                      Because we believe the

Board’s decision is supported by substantial evidence, we deny

the petitions for review.

                                             I.

            Petitioner and her family are Pentecostal Christians,

and Petitioner’s father was a Pentecostal preacher.                            Because of

their religion, Petitioner and her family suffered persecution

by the Eritrean government.                 In 1993, Eritrean soldiers abducted

Petitioner’s       father,    and      in    1994,    soldiers         forcibly   entered

Petitioner’s home and abducted her brother.                       Petitioner has not

seen or heard from her father or brother since.



                                              3
               Petitioner obtained travel documents and fled to Italy

in   1994.      She    had   no   legal       status      and    no    family    or    social

connections in Italy when she arrived.                     She managed to find work

as a housekeeper and eventually applied for asylum.                                   But for

reasons absent from the record, the Italian government denied

her asylum application.            Therefore, Petitioner resided in Italy

unlawfully from 1994 to 1996.                  Petitioner applied for a living

subsidy from the Italian government, which was also denied.                                   In

1996,     Petitioner        obtained      a       temporary      work       permit,     which

initially       had    to    be   renewed         every    year       but    later     became

renewable every other year.              According to Petitioner’s testimony

during her asylum hearing, she was required to show proof of

employment and to pay taxes in order to renew the temporary work

permit.        Nonetheless,       even   at       times   when    Petitioner          was    not

employed,      Italy    consistently          renewed     her     work      permit     over    a

period of 12 years.           As such, Petitioner was able to reside in

Italy from 1996 to 2008 on a string of temporary work permits.

When    she    could   afford     rent,       Petitioner        rented      a   room    in    an

apartment; when she could not, she lived with a nun.

               Although her testimony was not supported with specific

references to Italian law, Petitioner testified that Italian law

permits individuals who have resided in Italy for ten years to

apply    for    citizenship.         Thus,         Petitioner         claims    she    became

eligible to apply for Italian citizenship in 2004.                                Two years

                                              4
later, in 2006, Petitioner applied for citizenship.                         According

to    Petitioner’s       uncontroverted         testimony,     to    complete        the

application process she was “required . . . to go to the embassy

of    Italy   in     Eritrea     and    have    [a]   document      translated       and

authenticated.”         A.R. 150. 2      Fearing that returning to Eritrea

would expose her to the same fate that befell other members of

her    family,       Petitioner      submitted    her   application         with     all

required      forms     except    the     authenticated       document.            Italy

eventually rejected Petitioner’s citizenship application -- its

reason for doing so is not in the record.                    However, Petitioner

remained in Italy on her temporary work permit.

              In 2008, while still in Italy, Petitioner was raped by

patrons of the restaurant where she worked.                    By virtue of her

temporary work permit, she received medical care at an Italian

hospital.      Petitioner’s testimony as well as the IJ’s findings

indicate      that     the   Italian      government     covered      her     medical

expenses.        Following     the     sexual    assault,    Petitioner      traveled

back to Eritrea on August 6, 2008, to be with her mother.                            At

the time, she did not intend to return to Italy.                            While in

Eritrea, Petitioner did not attempt to obtain the required form

needed for Italian citizenship.



       2
       Citations to the “A.R.” refer to the Administrative Record
filed by the parties in this appeal.



                                           5
             On August 18, 12 days after she arrived in Eritrea,

Petitioner was attending a prayer meeting at her mother’s home.

Government    soldiers     interrupted      the   meeting      and   demanded    to

question Petitioner.       When she hesitated to comply, the soldiers

dragged Petitioner out of the house and beat her.                    The soldiers

then took her to another location, where they held her captive

in a small, poorly ventilated structure.                    They beat, sexually

assaulted, and starved her for eight days before her mother was

finally able to successfully bribe the soldiers to release her.

           On September 8, 2008, Petitioner fled once again to

Italy,   intending    to   use    the   country    as   a    stepping-stone     for

entry into the United States.           She arrived with no job, but she

was later able to resume work as a housekeeper pursuant to her

temporary work permit, which remained active.                 In February 2009,

the United States granted Petitioner a B-2 travel visa for a

period of seven months.          She left Italy for the United States on

June 1, 2009.      At that point, Petitioner had spent approximately

14 years in Italy.         Petitioner claims that after coming to the

United   States,     her    Italian     legal     documents,     including      her

temporary work permit, were stolen.




                                        6
           Petitioner applied for asylum in the United States on

March 4, 2010. 3       The Government served Petitioner with a Notice

to Appear on April 20, 2010, alleging she had overstayed her B-2

travel visa.       Petitioner appeared before the IJ on April 30,

2012, and conceded her removability, but she requested asylum

and   withholding      of    removal.     The       Government   did   not    oppose

withholding of removal, but argued that Petitioner was subject

to the firm resettlement bar to asylum.                    The Government relied

on    Petitioner’s          testimony     regarding        Italy’s     citizenship

application process, the amount of time she lived in Italy, the

renewal   of     her     work   permit,       and    her    ability    to    receive

subsidized medical care.

           The      IJ       granted      Petitioner’s         application      for

withholding of removal but denied her asylum petition because it

concluded that she had been firmly resettled in Italy before

arriving in the United States and was, therefore, barred from

asylum relief.         On November 25, 2013, the Board affirmed the

IJ’s finding of firm resettlement, providing its own analysis.




      3By this point, Petitioner had overstayed her travel visa
by two months, and during that time, she had not attempted to
even begin the asylum process in the United States.



                                          7
Petitioner filed a timely petition for review with this court on

June 4, 2014. 4

                                             II.

               When        the    Board     affirms     the    IJ’s       opinion      and

supplements the IJ’s reasoning, as it did here, we review both

opinions.          See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir.

2014).       We review for substantial evidence a Board’s decision

that an individual is firmly resettled.                        See Mussie v. U.S.

Immigration & Naturalization Serv., 172 F.3d 329, 331 (4th Cir.

1999).       Under this standard, we treat the Board’s findings as

conclusive “unless any reasonable adjudicator would be compelled

to   conclude         to    the   contrary.”       Cordova,        759    F.3d    at   337

(internal quotation marks omitted).

                                            III.

                                             A.

               The         Illegal      Immigration     Reform        and        Immigrant

Responsibility Act of 1996 (“IIRIRA”) statutorily bars an alien

from       being     eligible     for     asylum   if   he    or    she     was    “firmly

resettled in another country prior to arriving in the United



       4
       Petitioner filed two petitions for review. The first, No.
13-2511, sets forth the arguments outlined in this opinion. The
second, No. 14-1530, was filed in response to the Government’s
motion to dismiss for lack of jurisdiction, which was denied.
The second petition for review does not add any substantive
arguments for our review.



                                              8
States.”     8 U.S.C. § 1158(b)(2)(A)(vi).           Although IIRIRA does

not define the term “firm resettlement,” the Code of Federal

Regulations     fills     this   definitional       gap,    defining     “firm

resettlement” as follows:

             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
             received, an offer of permanent resident
             status, citizenship, or some other type of
             permanent resettlement . . . .

8   C.F.R.   § 1208.15.     Additionally,     the   Board   has   provided   a

framework to streamline the case-by-case adjudication of asylum

claims pursuant to this definition of firm resettlement.                   See

Matter of A-G-G-, 25 I. & N. Dec. 486, 500-03 (B.I.A. 2011).

             The Board’s framework consists of four steps.             In step

one,   the   government    proffers   prima    facie   evidence    that    the

petitioner has been firmly resettled in a third country.               See A-

G-G-, 25 I. & N. Dec. at 501.              If the government fails to

present a prima facie case of an offer of permanent residence,

the inquiry ends.         If the government succeeds, then the court

moves on to step two, which shifts the burden to the asylum

applicant to show “by a preponderance of the evidence that such

an offer has not, in fact, been made or that he or she would not

qualify for it.”        Id. at 503.       Then, in step three, the IJ

evaluates the totality of the evidence to determine whether the

applicant has, in fact, rebutted the government’s proffer.                 See

                                      9
id.   If the IJ determines the applicant effectively rebutted the

government’s case, the applicant may be granted asylum.               See id.

But if the applicant has failed, the IJ proceeds to step four,

and   the   applicant   must   establish   that   she   meets   one   of   the

regulatory exceptions to a finding of firm resettlement. 5                 See

id.

            At the first step, the Government bears the initial

burden of proffering prima facie evidence of firm resettlement.

See A-G-G-, 25 I. & N. Dec. at 501.           According to A-G-G-, the

Government may carry its burden preferably via direct evidence

or, in the absence of direct evidence, via sufficiently clear

and forceful indirect evidence:

                  In order to make a prima facie showing
            that an offer of firm resettlement exists,
            the [government] should first secure and
            produce    direct   evidence    of   governmental
            documents indicating an alien’s ability to
            stay    in   a   country    indefinitely.    Such
            documents may include evidence of refugee
            status, a passport, a travel document, or
            other    evidence    indicative    of   permanent
            residence.

                 If direct evidence of an offer of firm
            resettlement   is    unavailable,  indirect
            evidence may be used to show that an offer

      5 There are two regulatory exceptions to the firm
resettlement bar: the alien remained in the third country only
for so long as necessary to secure onward travel, or the third
country “substantially and consciously restricted” the alien’s
residence such that “he or she was not in fact resettled.”   8
C.F.R. §§ 1208.15(a), (b).



                                    10
              of firm resettlement has been made if it has
              a sufficient level of clarity and force to
              establish   that    an   alien    is    able   to
              permanently reside in the country. Indirect
              evidence may include the following: the
              immigration laws or refugee process of the
              country of proposed resettlement; the length
              of the alien’s stay in a third country; the
              alien’s intent to settle in the country;
              family   ties   and    business    or    property
              connections;   the    extent   of    social   and
              economic ties developed by the alien in the
              country; the receipt of government benefits
              or assistance, such as assistance for rent,
              food, and transportation; and whether the
              alien had legal rights normally given to
              people who have some official status, such
              as the right to work and enter and exit the
              country.

Id. at 501-02 (footnote omitted).

              This test “focuses exclusively on the existence of an

offer.”      A-G-G-, 25 I. & N. Dec. at 501.                Indirect evidence is

not afforded weight equal to that afforded to direct evidence:

“according      equal     weight      to    indirect    evidence,    such    as   the

country’s residence laws, length of an alien’s residence in an

intervening country, or the alien’s intent, is inconsistent with

the fact that only the government of the intervening country can

grant   an    alien     the   right    to    lawfully    and   permanently     reside

there.”           Id.           Nonetheless,           indirect     evidence      may

circumstantially         demonstrate         that   the     alien    was     offered

permanent residence status, and the legal rights it entails, by

a foreign country if “it has a sufficient level of clarity and

force.”      Id. at 502.

                                            11
              While the Board did not mention what forms of indirect

evidence are sufficient to prove firm resettlement, alone or in

combination, it did indicate that some types of evidence carry

less weight than others.                For example, the Board held that a

lengthy    period      of    residence     in     a    third    country    cannot,    by

itself, establish a prima facie case of firm resettlement.                           Cf.

A-G-G-, 25 I. & N. Dec. at 501 (“Such a right ‘cannot be gained

through adverse possession.’” (quoting Abdille v. Ashcroft, 242

F.3d 477, 487 (3d Cir. 2001))).                  However, the Board made clear

that “[t]he existence of a legal mechanism in the country by

which an alien can obtain permanent residence may be sufficient

to make a prima facie showing of an offer of firm resettlement.”

Id. at 502 (emphasis in original).                    Furthermore, section 1208.15

“only     require[s]        that   an     offer       of   firm    resettlement      was

available, not that the alien accepted the offer.”                         Id. at 503.

The   Board    justified      this      rule    as    necessary    to     protect   “the

purpose of the firm resettlement bar, which is to limit refugee

protection to those with nowhere else to turn.”                     Id.

                                           B.

              We have held that when an agency interprets its own

regulation,     “the    agency’s        interpretation         controls    unless   that

interpretation is ‘plainly erroneous or inconsistent with the

regulation.’” Dickenson-Russell Coal Co., LLC v. Sec’y of Labor,

747 F.3d 251, 257 (4th Cir. 2014) (quoting Auer v. Robbins, 519

                                           12
U.S.       452,    461    (1997)).         The    parties      agree       that       the    Board’s

decision in A-G-G- is “a reasonable interpretation of the firm

resettlement            statute      and    regulation,            and    should        be        given

deference.”            Gov’t’s Br. 23 n.3; see also Pet’r’s Br. 20.                                  We

also agree.

                                                 C.

                  Applying the Board’s framework as laid out in A-G-G-,

substantial            evidence      supports         the    Board’s        conclusion             that

Petitioner         was     firmly     resettled         in    Italy.            The    Government

offered sufficient indirect evidence 6 to present a prima facie

case       that    Petitioner        was    firmly      resettled          in     Italy       before

arriving          in     the    United      States,          and     Petitioner             did     not

sufficiently rebut that evidence.

                  In order to make its prima facie case, the Government

offered Petitioner’s uncontroverted testimony that, by virtue of

her    ten-year          stay   in   Italy,       she   was        eligible      to    apply        for

citizenship pursuant to Italian citizenship law.                                The Government

also proffered the duration of Petitioner’s stay in Italy; her

temporary         work    permit,     which       she   renewed          several      times;        her

ability       to       travel   pursuant         to   the     permit;       her       receipt        of

government subsidized medical care as a work permit holder; and

       6
       Neither party argues that the Government provided direct
evidence.     Thus, we proceed under the indirect evidence
analysis.



                                                 13
her ability to obtain housing.                          This evidence is sufficient to

shift the burden to Petitioner.                              See Mussie v. United States

Immigration & Naturalization Service, 172 F.3d 329, 332 (4th

Cir.    1999)       (“A      duration         of    residence            in   a    third   country

sufficient to support an inference of permanent resettlement in

the absence of evidence to the contrary shifts the burden of

proving absence of firm resettlement to the applicant.” (quoting

Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir. 1998))); Hanna v.

Holder,       740     F.3d    379,      394    (6th      Cir.        2014)    (concluding       that

testimony of a petitioner and her father that the petitioner was

granted “landed immigrant status” in Canada was enough for the

Government to satisfy its prima facie case).

               At A-G-G- steps two and three, we believe substantial

evidence supports the Board’s conclusion that Petitioner did not

rebut     the       prima     facie       case          of    firm       resettlement       “by    a

preponderance          of    the     evidence.”               25    I.    &   N.   Dec.    at   503.

Petitioner provided scant evidence that she did not receive an

offer of citizenship from Italy or that she would not qualify

for citizenship.             See id.      Indeed, we find specious her argument

that    she     was    unable      to    complete            Italy’s      citizenship      process

because she could not obtain a required form from Eritrea, but

she then returned to Eritrea and still did not obtain the proper

paperwork.            Therefore,         we        cannot          say   that      a   “reasonable



                                                   14
adjudicator would be compelled to conclude” that Petitioner was

not firmly resettled in Italy.   Cordova, 759 F.3d at 337.

                                 IV.

          For the foregoing reasons, we deny the petitions for

review.

                                       PETITIONS FOR REVIEW DENIED




                                 15
TRAXLER, Chief Judge, dissenting:

      With respect to the views of my distinguished colleagues, I

would      grant    the   petition    for    review.        In    my    view,   Naizghi

rebutted      the    Government’s     evidence       of    an     Italian    offer      of

permanent status.          She testified without contradiction that the

Italian application process required her to return to Eritrea,

the country from which she was fleeing persecution, and submit

various      authenticated     documents         through    the    Italian      Embassy

there.      In my opinion, this is not an offer of permanent status

by Italy.      The fact that Naizghi retreated to Eritrea to be with

her family after being raped in Italy and subsequently returned

to Italy without the required paperwork does not convince me

otherwise.         Twelve days after her arrival, Naizghi was abducted

by   the    government     from   a   prayer      meeting    and       subjected   to    a

variety of abuses by her captors.                 After her mother secured her

release by bribing officials, Naizghi returned to Italy.                           In my

opinion, it would be unreasonable to expect her to remain in

Eritrea to secure documentation.                 Accordingly, Naizghi satisfied

her burden of rebutting the Government’s prima facie case.                               I

therefore would grant Naizghi’s petition for review and allow

her to continue seeking asylum in this country.




                                            16
