Introduction

This article examines Board of Immigration Appeals (BIA) published decisions on applications for asylum, withholding of removal, and former suspension of deportation based on “economic persecution.” This article is part of a series of articles that also cover Federal appellate court decisions on the same issue (First through Fifth Circuits [see article] and Sixth through Ninth Circuits [see article]). Before reading this article or its sister articles, please see our introduction article to the series [see article]. The introduction provides background on the different governing standards for economic persecution claims and a general overview of the series. Furthermore, we recommend that you also consult our comprehensive article on the development of adjudicative standards for economic persecution claims since 1961 [see article].

Note on Structure of This Article

For each BIA decision, we will specify the ground on which the claimed economic persecution was based, the country of nationality of the applicant, and the standard applied. Please see the relevant section of the introductory article to the series for an overview of the different governing standards [see section]. When reading, please bear in mind that each case is assessed on an individualized basis, and an outcome in a past case does not guarantee an outcome in a future case.

For the instant article, it is worth bearing in mind that many of the older BIA decisions utilized a more stringent standard for economic persecution than the one that predominates today.

Board of Immigration Appeals Decisions

The Board of Immigration Appeals (BIA) is a component of the Department of Justice (DOJ) and the highest administrative body for interpreting the immigration laws. The BIA reviews on appeal the decisions of immigration judges. BIA decisions are binding on immigration judges and the Department of Homeland Security (DHS). Most BIA decisions may be appealed to Federal appellate courts. For-precedent decisions of the BIA may be entitled to administrative deference from Federal courts. Every decision that we will examine in this section is published and for-precedent.

Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced Sterilization)
Country: China
Standard(s) Applied: Matter of T-Z-

Respondent claimed fear of persecution based on assertion that he would face economic persecution for having had a second child abroad. The Board determined that if he was penalized at all, it would be in the form of “fines or other economic penalties.” 24 I&N Dec. at 191. The Board found that “[e]nforcement efforts resulting in moderate economic impact would not, in general, prove a well-founded fear of persecution.” See also Matter of J-H-S-, 24 I&N Dec. 196, 200 (BIA 2007) [PDF version].

Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion (Forced abortion)
Country: China
Standard(s) Applied: Matter of T-Z-, Matter of Laipenieks, Matter of Acosta

Matter of T-Z- adopted a new and comprehensive standard governing economic persecution claims [see section]. The Board applied the new standard to the facts of Matter of T-Z-.

In Matter of T-Z-, the respondent claimed that he and his wife had been threatened with the loss of his wife’s employment, fines, and other consequences if he or she refused to have an abortion or resisted having an abortion.

The Board found that the information in the record was insufficient to establish that the respondent’s wife was subjected to a forced abortion through economic persecution. For example, the Board found that the record did not indicate the respondent’s living circumstances, his wife’s income, or the minimum level of income they needed to provide for themselves. 27 I&N Dec. at 175-76. The Board remanded the record to the immigration judge and permitted the parties to “provide additional evidence regarding the respondent’s salary, the family’s living situation, and other factors relevant to whether the threatened economic harm in this case for refusal to undergo an abortion was such that they had faced a ‘deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.’” (Internal citation omitted.) Id. at 176.

Matter of H-M-, 20 I&N Dec. 683 (BIA 1993) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: Nicaragua
Standard(s) Applied: Noted that respondent relied on Kovac.

Although the Board did not specify which standard it employed in Matter of H-M-, it noted that the respondent’s brief cited to Kovac. 20 I&N Dec. at 687.

The respondent’s claims for asylum and withholding of deportation were based on the claim that he had suffered economic persecution through the loss of his ration card and deprivation of employment. The Board concluded that neither of these would constitute persecution (and, in addition, that even if they did, the respondent failed to establish that the persecution was connected to his political opinion). Id. at 691.

Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: Cuba
Standard{s) Applied: Dunat

The Board applied the Dunat standard in Matter of D-L- & A-M-. 20 I&N Dec. at 414.

Here, the Board found that a respondent did not establish a well-founded fear of persecution based on the refusal of Cuban Government officials to permit him to return to his job following his detention. Id. The Board noted that the respondent admitted that he still been able to make a living raising tobacco and rice on land that he owned, and that he had thus “failed to show that the Cuban Government had placed him in a situation so severe as to deprive him of a livelihood. Id.

Matter of Barrera, 19 I&N Dec. 837 (BIA 1989) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Particular Social Group
Country: Cuba
Standard(s) Applied: Cited to Kovac without discussion.

The Board determined that there was no evidence that “Marielitos” were “denied employment, education, housing, permission to travel, or other benefits of this sort” upon their return to Cuba. 19 I&N Dec. at 847. The Board cited to Kovac without further discussion. Id.

Matter of Man, 12 I&N Dec 305 (BIA 1967) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: United Kingdom (Hong Kong)
Standard(s) Applied: Cited to Matter of Vardjan, 10 I&N Dec. 567 (BIA 1965) (see below), which relied on Dunat standard.

Respondent argued that he would be subject to economic persecution by the British Government, which then controlled Hong Kong, if he were returned there. 10 I&N Dec. at 305. However, he presented no evidence of past persecution and stated only that it was “common knowledge” that he would be subjected to future economic persecution. The Board rejected his claim because he failed to meet his burden of proof. Id. The Board also rejected his claim that he would be subjected to persecution by the Chinese Government should it take over Hong Kong because that claim was merely speculative. Id. at 306.

Matter of Nagy, 11 I&N Dec. 888 (BIA 1966) [PDF version]

Claimed Grounds Upon Which Economic Persecution Was Based: Religious and Political Opinion
Country: People’s Republic of Hungary
Standard(s) Applied: Dunat

Respondent claimed that she had a fear of economic persecution based on her being Roman Catholic. 11 I&N Dec. at 890. To support her claim, she attributed her inability to secure a job for six months after graduating high school, and then only a dishwashing job at a pharmaceutical factory, to her attending a Roman Catholic Church. Id. Furthermore, when she obtained a job, it was to wash bottles at a pharmaceutical factory. Id.

However, the Board rejected her claims. The Board noted that she did not address the possibility that her difficulty in finding a job, and the type of job that she did find, reflected the lack of opportunity for people with her level of educational attainment rather than her religion. Id. It also added that the record indicated she was given work of an “administrative nature” at the pharmaceutical factory and permitted to attend a commercial chemistry school. Id. The Board concluded that these facts did not support “a claim of complete deprivation of economic opportunity” under Dunat. In addition, the Board noted that respondent’s parents were also practicing Roman Catholics and were gainfully employed. Id.

Matter of Salama, 11 I&N Dec. 536 (BIA 1966) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Religion
Country: United Arab Republic (Egypt)
Standard(s) Applied: Not specified

Respondent, a physician, claimed that he would be persecuted for his Jewish faith in Egypt. 11 I&N Dec. at 536. The Board determined that there was evidence that “the Medical Association of Egypt had directed the Egyptian populace to refrain from consulting Jewish surgeons and physicians for any cause, and that Jewish professional men have been dropped from the rolls of professional societies…” Id. The Board found this sufficient to establish that the respondent would face persecution in Egypt due to religion.

Matter of Salama was cited to by the Board in setting forth its economic persecution standard in Matter of Acosta.

Matter of Vardjan, 10 I&N Dec. 567 (BIA 1965) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Political Opinion
Country: Yugoslavia
Standard(s) Applied: Dunat

Respondent claimed a fear of economic persecution based on her political opinion. 27 I&N Dec. 574. She testified that her mother’s farmland had been confiscated by Yugoslav authorities without compensation. Id. Furthermore, she added that she would be unable to find other work in Yugoslavia because there was no private work and the government would not want to employ her. Id.

The Board rejected respondent’s claims. First, it found that she did not establish that the lack of compensation for the land taking was due to her political opinion, and that in any case, it would not amount to “physical persecution” under the Dunat standard. Id. The Board acknowledged that due to the respondent’s age and limited skills, her employment opportunities may be restricted in Yugoslavia. Id. Furthermore, it added that for a variety of reasons, the government of Yugoslavia may restrict her ability to find new employment. Id. However, the Board found these factors insufficient under the Dunat standard because she would not be “totally without means of support” and that “subsistence at a low level does not meet the statutory standard for persecution.” Id.

Matter of Eusaph, 10 I&N Dec. 453 (BIA 1964) [PDF version]

Claimed Ground Upon Which Economic Persecution Was Based: Race and Religion
Country: India
Standard(s) Applied: Dunat

Respondent, who was Pakistani, claimed that he would be persecuted if deported to India. 10 I&N Dec. at 455. However, the record indicated that the respondent had in the past worked as a crewman in India and had not been persecuted on economic grounds or given reason to believe that he would be persecuted on such grounds in the future. Id. The Board also noted that he had admitted that he would have voluntarily returned to India a few years earlier if the Indian consulate had granted him documents. Id.

Conclusion

Matter of T-Z- serves as the most influential standard for adjudicating economic persecution claims today. However, as the Board itself noted in Matter of T-Z-, many circuit courts had been applying largely similar standards prior to its issuance [see article]. The older BIA decisions that applied the stricter Dunat standard remain precedential, and taken in context, provide additional examples of how the Board has applied the higher standard to economic persecution claims. An alien who is considering seeking relief in the form of asylum and/or withholding of removal should always consult with an experienced immigration attorney. To learn more about asylum, please see our full selection of articles [see category]. Please also see our introductory article to statutory withholding of removal [see article].