Board of Immigration Appeals Vacates Matter of K-S-E-

In Matter of Sylvestre (BIA 2022), the Board of Immigration Appeals vacated its prior published decision in Matter of K-S-E-, 27 I. & N. Dec. 818 (BIA 2020). In Matter of K-S-E-, the Board improperly indicated that a third country’s offer of contingent, possibly renewable, status might constitute an offer of “firm resettlement,” notwithstanding the plain language of the statute and precedential decisions of circuit courts and the Board, which provide otherwise. The Board also disregarded evidence that Mr. Sylvestre, a Black Haitian man, was not “firmly resettled” in Brazil because he feared persecution on account of his race and national origin. The Board further erred in concluding that Mr. Sylvestre failed to demonstrate that he  experienced or fears harm from private actors that the Haitian Government is unable or unwilling to control.

The Board’s recent vacatur follows the Ninth Circuit’s vacatur and remand in Sylvestre v. Garland, No. 20-71316, 2021 WL 2453043, 2021 U.S. App. LEXIS 17269 (9th Cir. June 9, 2021), which directed the Board to reconsider its holdings that Mr. Sylvestre was “firmly resettled” in Brazil, and that the Haitian government was able and willing to control his persecutors. In addition to vacating its prior published decision, the Board remanded the case to the Immigration Judge for further fact-finding as to both firm resettlement and failure of state protection.

If an appeal of a similar case is pending before the Board or a circuit court, practitioners should argue for a remand in light of K-S-E-’s vacatur. Practitioners representing applicants for Temporary Protected Status and/or asylum who may be subject to the firm resettlement bar should also notify adjudicators of K-S-E-’s vacatur.

If practitioners have questions about the implications of this decision, they can contact counsel for Mr. Sylvestre at Innovation Law Lab (Tess Hellgren, & Kelsey Provo, and at the Harvard Immigration and Refugee Clinical Program (Sabi Ardalan, Practitioners may also reference Mr. Sylvestre’s redacted Ninth Circuit brief.