Matter of B-R-, 26 I&N Dec. 119 (BIA 2013): Asylum/Refugee Applications and Dual Nationality

 

Introduction: Matter of B-R-, 26 I&N Dec. 119 (BIA 2013)

On May 3, 2013, the Board of Immigration Appeals issued a published decision in the Matter of B-R-, 26 I&N Dec. 119 (BIA 2013) [PDF version]. The Board held that an alien who is the citizen or national of multiple countries and who does not fear persecution in one of those countries does not meet the statutory definition of “refugee” under section 101(a)(42) of the Immigration and Nationality Act (INA). This affects applicants for asylum and applicants for refugee status, both of which require the applicant to meet the statutory definition of “refugee.”

Matter of B-R-

Facts and Procedural History: 26 I&N Dec. at 119-120

The respondent was a native and citizen of Venezuela who was admitted to the United States as a nonimmigrant visitor on June 28, 2009. He remained in the United States beyond the date of his authorized stay.

In April of 2010, the respondent applied for asylum. His claim was based on the assertion that he was a journalist in Venezuela and that he was threatened by groups supporting Hugo Chavez, who was the incumbent President of Venezuela.

On May 26, 2010, the Department of Homeland Security (DHS) issued a Notice to Appear to the respondent. The DHS charged that the respondent was removable under section 237(a)(1)(B) of the INA as an alien who remained in the United States longer than he or she was authorized.

In removal proceedings, the respondent conceded that he was removable. However, he applied for asylum and withholding of removal based on his claimed fear of persecution if he returned to Venezuela.

The DHS submitted evidence that the respondent was not only a citizen of Venezuela, but also of Spain. The DHS showed that the respondent had Spanish citizenship by birth through his father, who had been born in Spain and had Spanish citizenship.

The Immigration Judge requested further briefing on the respondent's nationality. The respondent argued that even if it was the case that he had Spanish citizenship, he was not required to establish that he had a well-founded fear of persecution in both countries in order to be eligible for asylum.

On March 11, 2011, the Immigration Judge issued an interim order that would be part of her final decision. She determined that, if the respondent was a dual national of Spain and Venezuela, he would be required to establish a well-founded fear of persecution in both countries in order to qualify for asylum status.

The respondent in further testimony did not concede that he was a national of Spain, although he did acknowledge that his father had Spanish citizenship.

In her final decision, the Immigration Judge determined that the evidence established that the respondent had both Venezuelan and Spanish citizenship. Because the respondent did not express a fear of persecution in Spain, the Immigration Judge concluded that the respondent did not meet the statutory definition of “refugee” under section 101(a)(42) of the INA.

Appeal to the BIA and Issues: 26 I&N Dec. at 120

The respondent appealed the Immigration Judge's decision to the BIA. On appeal, he did not contest that he had Spanish citizenship. Instead, he argued that his claim for asylum was nevertheless not barred under the “safe third country” bar found in section 208(a)(2)(A) of the INA or the “firm resettlement” bar found in section 208(b)(2)(A)(vi). He also argued that the statutory definition of “refugee” in section 101(a)(42) of the INA does not require that an applicant for asylum prove that he or she would face persecution in every country to which he or she may be returned. Rather, he interpreted the provision as applying to an individual who fears returning to only one of the countries in which he or she has citizenship.

Board's Analysis and Conclusion: 26 I&N Dec. at 121-122

The Board agreed with the respondent that neither the “safe third country” nor the “firm resettlement” bars applied to the respondent's case. However, the Board agreed with the Immigration Judge that the respondent's Spanish citizenship, combined with the fact that he did not fear persecution in Spain, meant that he did not meet the statutory definition of refugee in section 101(a)(42), and he thus was not eligible for asylum.

The Board noted that dual nationality is not explicitly addressed in the “refugee” definition found in section 101(a)(42). However, the Board looked to the legislative history of the provision, which it found instructive. The Board noted that in enacting section 101(a)(42) in 1980, “Congress explicitly relied on language in the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150…” The Convention definition of refugees stated that the term “country of his nationality” means all countries of nationality in the case of an individual with multiple countries of nationality. Furthermore, it stated that an individual with more than one country of nationality may only be deemed to lack the protection of his or her country of nationality if he or she can establish a well-founded fear of persecution in all of the countries of nationality. The Board also found that this construction “is consistent with the history of the Refugee Act” as it had existed prior to 1980.

The Board found that, in the instant case, the respondent had the option of residing in Spain as a Spanish citizen and national.

As a general rule, the Board stated that:

“Once nationality is established, it is the alien's burden to demonstrate that the alternative country of nationality will not offer protection.”

The Board noted that the respondent did not argue that he had unsuccessfully endeavored to “avail[] himself to the protection of” Spain. For this reason, the Board held that the respondent did not sustain his burden of establishing that he met the statutory definition of “refugee,” and by extension, had established his eligibility for asylum in the United States.

The Board added to its analysis by addressing the purpose of asylum protection. The Board cited to the decision of the United States Court of Appeals for the Second Circuit in Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011) [PDF version], wherein the Second Circuit noted that the purpose of asylum is to protect those who meet the definition of “refugee” and who have nowhere safe to return. Although the Board did not find that the firm resettlement and safe third country bars applied to the instant case, the Board noted that the existence of these provisions further support the idea that an individual who has a country of nationality to which he or she can return without fear of persecution is not a “refugee” under the INA. The Board also cited to section 208(c)(2)(E) of the INA, which permits the DHS to terminate asylum if the asylee acquires a new country of nationality and enjoys the protection of that country.

Finally, the Board noted section 241(b)(2)(D)(ii), which permits the Secretary of Homeland Security to remove an alien to “a country” of which the alien is a “national, subject, or citizen,” unless that country will not accept the alien. Citing to Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007) [PDF version], the Board interpreted “a country” as meaning any country of which the alien is a national, subject, or citizen.

Because the respondent did not express any fear of persecution in Spain, the Board found that he was not a “refugee” notwithstanding his fear of persecution in Venezuela. For this reason, the Board dismissed the respondent's appeal.

Conclusion

The Matter of B-R- is an important decision regarding the definition of “refugee,” which affects both asylum and refugee applications. In the event that an asylum applicant has more than one nationality, Matter of B-R- requires the applicant to account for all countries of nationality in his or her application. This could be done by establishing a fear of persecution in each country of nationality. The Board also provided a second path, through which the individual could endeavor to show that the second country would not offer him or her protection.

An applicant who is considering seeking asylum protection in the United States should consult with an experienced immigration attorney. Asylum applications are complicated, especially when there are factors such as the individual having multiple nationalities. An attorney will be able to assess the individual's situation and determine what paths for relief, if any, may be available.

Although the issues are different, dual nationality issues often arise in applications for Temporary Protected Status (TPS). Please see our full article to learn about dual nationality in the TPS context [see article].