Hamdani

MEMORANDUM *

Sayid and Nasrin Hamdani, and their four children, Ali, Aaron, Madina, and Mariam, petition for review of the Board of Immigration Appeals decision affirming the denial of their petitions for asylum. Because the parties are familiar with the facts in this case, we recite them only as necessary. We deny the Hamdanis’ petitions.

Petitioners concede their deportability pursuant to INA § 241(a)(1)(B), 8 U.S.C. § 1251 (a)(1)(B), admitting that they are nonimmigrants who overstayed the period of their visitor’s visas. The Immigration Judge granted Petitioners’ request for withholding of deportation to Afghanistan and granted voluntary departure, with the United Kingdom designated as the country of deportation. Petitioners argue, however, that they should have been granted asylum, either from Afghanistan, or alternatively, from the U.K.

We agree with the BIA that Petitioners were firmly resettled in the U.K., so they are not eligible for asylum from Afghanistan. An alien shall not be granted asylum from one country if he or she was “firmly resettled in another country prior to arriving in the United States.” INA § 208(b)(2)(A)(vi), 8 U.S.C. § 1258 (b)(2)(A)(vi). “An alien…

dissenting.

I respectfully dissent. I would hold that on this record, petitioners established eligibility for asylum from the United Kingdom. Although the officials in the United Kingdom were apparently willing—to some degree—to protect the Hamdanis from persecution, they were not able to do so.

This court has held repeatedly that an asylum claim may be based on a government’s inability to control persecution by non-government forces. See, e.g., Chand v. INS, 222 F.3d 1066 (9th Cir.2000); Avetova-Elisseva v. INS, 213 F.3d 1192 (9th Cir.2000). This court has reversed denials of asylum in several cases in which the government was not indifferent to, but was unable to stop, the persecution experienced by the asylum petitioner. See Avetova-Elisseva, 213 F.3d at 1198 (financially constrained Russian government grappling with high crime rate was unable to control anti-Armenian violence by private actors); Gomez-Saballos v. INS, 79 F.3d 912 , 916-17 (9th Cir.1996) (Nicaraguan government was unable to control former National Guard members who threatened life of government appointee); Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir.1987), overruled on other grounds by Fisher v. INS, 79…