Introduction

Asylum law in the United States rests on a deceptively simple proposition: the government will offer refuge to a person who cannot safely return home because of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.1 For most asylum seekers, the inquiry begins and ends with a single country — the country they fled. But for a growing number of applicants, the calculus is more complicated. They are nationals not of one country, but of two or more. They may have inherited a second citizenship at birth through a parent, acquired it through marriage, or picked it up by operation of a successor-state law after a country dissolved. They may never have set foot in that second country; they may not speak its language. The question that divides the Board of Immigration Appeals (BIA) from the United States Court of Appeals for the Second Circuit is whether such a person — a refugee by any ordinary understanding of the word — must also prove persecution in the second country before the United States will consider their asylum claim on the merits.

For nearly a decade, the answer outside the Second Circuit has been yes. In Matter of B-R-, 26 I. & N. Dec. 119 (BIA 2013), the Board announced what immigration judges now routinely call the “Dual Nationality Bar to Asylum”: a refugee-applicant who cannot show persecution in every country of nationality is not a “refugee” at all within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act (INA), and is therefore categorically ineligible for asylum.2 On June 28, 2022, in Zepeda-Lopez v. Garland, 38 F.4th 315 (2d Cir. 2022), the Second Circuit rejected that rule as contrary to the unambiguous text of the INA. Writing for a unanimous panel, Judge Denny Chin held that “to be considered a ‘refugee’ under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality.”3

This article traces that debate from its statutory and historical origins through Matter of B-R-, the Second Circuit’s response in Zepeda-Lopez, and the treatment (and non-treatment) of the question in other federal circuits. It concludes with practical guidance for attorneys and applicants navigating what, in the Second Circuit, is a transformed legal landscape — and, elsewhere in the country, a still-contested one. Readers seeking a shorter, more condensed summary of the two leading decisions can refer to our earlier posts on Matter of B-R- and on the ability of nationals of more than one country to win asylum.

Historical Background: The Refugee Act, the U.N. Convention, and the Roots of the Dual Nationality Question

A. The 1951 Convention and the 1967 Protocol

Modern refugee law is a post-war construct. The 1951 United Nations Convention Relating to the Status of Refugees4 defined a refugee as a person with a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion who “is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Article 1(A)(2) then added two further clauses of enormous significance to anyone with more than one passport. First, it provided that “the term ‘the country of his nationality’ shall mean each of the countries of which he is a national.” Second, it stated that “a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”5

In plain terms: under the Convention, a dual national is a refugee only if she has a well-founded fear of persecution in all of her countries of nationality (or if she has a valid, fear-based reason for not turning to one of them). The United States acceded to the 1967 Protocol — which incorporates by reference the 1951 Convention’s substantive provisions — in 1968.6 For more than a decade thereafter, the United States had international refugee obligations but no comprehensive domestic refugee statute to implement them.

B. The Refugee Act of 1980 and the Statutory Definition Congress Actually Chose

Congress filled that gap with the Refugee Act of 1980,7 which for the first time created a uniform statutory definition of “refugee” and a comprehensive asylum framework. The definition Congress enacted, codified at INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), tracked the Convention in most respects but departed from it in one respect that would become pivotal: Congress omitted the Convention’s multiple-nationality clauses. In their place, Congress used different — and, as the Second Circuit would later emphasize, carefully singular — language:

The term “refugee” means (A) any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .8

That small linguistic pivot — from the Convention’s “each of the countries of which he is a national” to the INA’s “that country,” singular — would be the fulcrum of the Zepeda-Lopez decision three decades later. For a general overview of how the modern statutory refugee definition operates, see our Overview of Refugee Status article.

C. Early Administrative Practice: Firm Resettlement, Not a Dual Nationality Bar

The pre-1980 regulatory regime did not treat dual nationality as an automatic disqualifier from refugee status. Instead, it relied on a concept that would become central to Congress’s statutory design: firm resettlement. Under longstanding INS practice, an applicant was not cast out of refugee protection merely because he happened to hold a second passport; rather, refugee status was withheld if, after fleeing persecution, the applicant had actually resettled in another country — taken up residence there, worked there, built a life there. The most widely cited pre-Act example is Matter of Sun, 12 I. & N. Dec. 36 (Reg’l Comm’r 1966), in which the INS denied relief to an applicant who was a dual national of Communist China and Taiwan — not because of his Taiwanese citizenship as such, but because he had lived in Taiwan for thirteen years after fleeing China and was therefore firmly resettled.9

When Congress enacted the Refugee Act of 1980, it preserved this framework by codifying the firm resettlement concept as one of the statutory bars to asylum found at INA § 208(b)(2)(A)(vi). The Attorney General’s implementing regulations, issued shortly after the Act, followed settled practice in not treating dual citizenship per se as a bar unless the applicant had traveled to and established residence in the second country after fleeing persecution.10 Academic commentators have documented that Congress’s choice was made with a specific political backdrop in mind: the exodus of Soviet Jews, many of whom held or could claim Israeli citizenship under Israel’s Law of Return but who were not presumed to have “firmly resettled” in a country they had never entered.11

For roughly three decades after 1980, adjudicators treated the problem of dual nationality as one of firm resettlement — a substantive inquiry into the applicant’s actual ties to the second country — rather than as a categorical refugee-definition bar. That changed in 2013.

Matter of B-R- (BIA 2013): The Board Imports the Convention’s Exclusion Into the Statute

A. The Case and Its Facts

The respondent in Matter of B-R- was a journalist from Venezuela who sought asylum in the United States on account of threats and persecution he had experienced from elements of the Hugo Chávez regime.12 His Venezuelan claim was substantively strong. The complication was that his father had been a citizen of Spain, and under Spanish nationality law the respondent was — by operation of jus sanguinis — also a Spanish national. The respondent had never lived in Spain, did not work in Spain, and had no apparent independent claim of persecution in Spain. The immigration judge nonetheless ruled that he was required to prove a well-founded fear of persecution in both Venezuela and Spain in order to qualify as a “refugee” under INA § 101(a)(42)(A). Because he did not fear persecution in Spain, the IJ denied asylum, and the respondent appealed to the BIA.13

B. The Board’s Holding and Reasoning

A three-member panel of the BIA affirmed. The Board’s holding is succinct and sweeping: “An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a ‘refugee’ under section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42) (2006), and is ineligible for asylum.”14 The Board’s reasoning rested on several pillars.

Claim of statutory ambiguity. The Board first noted that “[t]he circumstance of dual nationality is not specifically addressed in [the INA’s refugee definition]” and concluded from that silence that the statute was ambiguous and warranted Chevron deference to the agency’s interpretation.15

Convention-based interpretation. Filling the perceived gap, the Board looked to Article 1(A)(2) of the 1951 Convention, noting that the Convention defines “the country of his nationality” to mean “each of the countries of which he is a national.”16. Because the United States had acceded to the Protocol, the Board reasoned, Congress must have meant the INA’s refugee definition to incorporate the Convention’s dual-nationality exclusion. It cited Senate Report No. 96-256, which stated that the 1980 Act’s refugee definition was “based directly upon the language of the Protocol.”

Structural argument from other INA provisions. The Board pointed to the firm-resettlement bar, the safe-third-country bar, and the asylum-termination provision at INA § 208(c)(2)(E) as reflecting a general statutory policy 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.”17 The Board placed particular weight on Tchitchui v. Holder, 657 F.3d 132 (2d Cir. 2011) (per curiam), in which the Second Circuit had observed, in the firm-resettlement context, that asylum is reserved for refugees “with nowhere else to turn.”18

Burden-shifting rule. The Board held that once the government produces evidence that the applicant is a national of a second country, the applicant bears the burden of showing that the alternative country of nationality will not provide protection.19 That showing can be made either by establishing a well-founded fear of persecution in the second country or by demonstrating some other reason the second country is unable or unwilling to protect the applicant.

C. The Problems With the Board’s Analysis

The Board’s reasoning was vulnerable on several fronts, and commentators — including Professor Jon Bauer in his comprehensive study Multiple Nationality and Refugees, 47 Vand. J. Transnat’l L. 905 (2014) — were quick to point them out.20 First, the Board’s “ambiguity” finding was doing a great deal of work. The absence of an express provision for an edge case does not automatically render a statute ambiguous; the ordinary rules of English grammar may resolve the question. Second, the Board’s use of the Convention assumed what needed to be proved — that Congress had wordlessly incorporated a provision it conspicuously omitted. Third, and perhaps most importantly, the Board’s “policy” arguments drawn from the firm-resettlement and safe-third-country bars proved too much: those provisions already address the problem of applicants with other available safe havens, and reading them as also justifying a refugee-definition bar risked double-counting the same concern at two different steps of the analysis. The Second Circuit would seize on precisely these weaknesses a decade later.

Zepeda-Lopez v. Garland (2d Cir. 2022): The Second Circuit Rejects the Dual Nationality Bar

A. The Facts

Zepeda-Lopez arose from a consolidated proceeding involving three lead applicants — Carlos, Karla, and Melissa Isabel Zepeda-Lopez — and three derivative applicants. All were siblings or spouses/children of siblings. They were citizens of Honduras by birth; they were also citizens of Nicaragua through their mother. In February 2014, while living in Honduras, their family was the victim of a terrifying home invasion by Mara-18 — a violent transnational gang — in the course of which family members were assaulted and threatened at length. The family fled to the United States later that year.21

At their individual hearings before Immigration Judge Michael W. Straus, the Zepeda-Lopez family presented testimony that the IJ found credible. The IJ made the following dispositive findings: (i) the applicants had suffered past persecution in Honduras; (ii) that persecution was on account of a protected ground; and (iii) the Honduran government was unwilling and unable to protect them.22 Under ordinary principles, those findings would have established eligibility for asylum as a matter of statute. Yet the IJ denied asylum, citing the “Dual Nationality Bar to Asylum.” Under Matter of B-R-, the IJ explained, the applicants were required to establish a well-founded fear of persecution in both Honduras and Nicaragua. They had not shown fear of persecution in Nicaragua, and therefore — the IJ reasoned — they were not “refugees” at all. The IJ ordered them removed to Nicaragua. The BIA dismissed their appeal, and the family filed a petition for review with the Second Circuit.23

B. The Holding

A unanimous Second Circuit panel — Chief Judge Livingston and Judges Chin and Nardini, with Judge Chin writing — granted the petition, vacated the BIA’s decision, and remanded. The court’s holding states squarely that “to be considered a ‘refugee’ under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality,”24 and “[w]e thus reject the BIA’s interpretation in Matter of B-R-, 26 I. & N. Dec. 119 (B.I.A. 2013).”25

C. The Reasoning

The Second Circuit’s opinion proceeds in four analytic moves, each of which is worth unpacking for the practitioner.

  1. The statutory text is unambiguous. The court applied the familiar Chevron step-one inquiry: “Here, Congress has spoken directly to the precise question at issue. . . . [T]he INA unambiguously requires an applicant for asylum to show well-founded fear of persecution in any one country of the applicant’s nationality rather than in all such countries.”26 Where a statute is unambiguous, the BIA’s contrary reading “merits no deference.” The court gave close attention to the grammatical structure: the definition refers to a person “outside any country of such person’s nationality” and then requires that the person be “unable or unwilling to return to . . . that country.” “Any” followed by “that” — not “every” or “those countries” — marks a statutory structure that contemplates one specified country, not a catalogue of them.27
  2. Congress’s omission of the Convention’s dual-nationality clauses is dispositive. The Second Circuit emphasized that the Convention’s Article 1(A)(2) contains explicit language addressing multiple nationality — language that Congress knew about, had before it, and chose not to include. “As the INA excludes the explicit definition included in the UN Convention, it would be improper for a court to read it into the statute. We are thus bound to give the statutory text the only meaning that it can bear . . . .”28 The court observed that when Congress borrows from a treaty selectively, the omitted language cannot be reimported sub silentio.
  3. The Board’s structural arguments are doubled counted by Congress’s own statutory design. The Zepeda-Lopez court took particular care to address the Board’s argument that the firm-resettlement and safe-third-country provisions support the Board’s reading. The court’s response is central to understanding what Zepeda-Lopez does and does not do. Refugee status, the court explained, is “necessary, but not sufficient by itself, for a person to receive asylum.” Even after an applicant meets the refugee definition, the INA provides additional screens. The firm-resettlement bar “weeds out asylum applicants who have a safe homeland to turn to”;25 the safe-third-country bar is available by regulation; and the ultimate grant of asylum remains discretionary and is governed by the “totality of the circumstances.”29 Congress, in other words, already has a mechanism for addressing the concern that animated Matter of B-R- — it is simply that Congress placed that mechanism at the eligibility and discretionary stages, not at the threshold refugee-definition step. For our explanation of how the firm-resettlement bar and other asylum disqualifiers operate in practice, see our article on Bars to Eligibility for Asylum.
  4. The Board’s reading produces absurd results. Finally, the court invoked a practical point that will be familiar to anyone who has represented asylum seekers from successor states. Because citizenship can be inherited by jus sanguinis, a person can be a “national” of a country in which she has never set foot. “It is impossible,” the court observed, “for an asylum applicant to ‘return’ to a country where she has never been.”30 Yet Matter of B-R- would require precisely that, forcing applicants to generate a persecution record in a country with which they have no meaningful connection. The court concluded that such a reading was neither commanded by the text nor consistent with the statute’s humanitarian purpose.

D. The Scope of the Holding — What Zepeda-Lopez Does Not Do

It is equally important to understand the limits of Zepeda-Lopez. First, the decision binds only immigration judges and the BIA sitting in cases arising within the jurisdiction of the Second Circuit — New York, Connecticut, and Vermont. Outside those three states, Matter of B-R- continues to govern unless and until another court of appeals or the BIA itself recognizes Zepeda-Lopez’s reasoning as binding or persuasive. Second, Zepeda-Lopez does not alter the firm-resettlement bar, the safe-third-country bar, or the discretionary component of asylum. A dual national who satisfies the refugee definition under Zepeda-Lopez can still be found ineligible for asylum if she has firmly resettled in her second country of nationality, and can still be denied as a matter of discretion based on the totality of her ties to that country.31 Third, the decision does not affect the statutory provision at INA § 208(c)(2)(E), which authorizes termination of asylum status if, after a grant, the asylee acquires a new nationality and enjoys that country’s protection.

Treatment of the Dual Nationality Question in Other Circuits

Perhaps the most important structural fact about the dual nationality question after 2022 is what has not happened: no other court of appeals has adopted Zepeda-Lopez’s reasoning in a precedential decision, and no other court of appeals has issued a published opinion squarely disagreeing with it. The Second Circuit stands alone. Understanding why requires a look at how the issue has reached (and not reached) the other circuits.

A. The Ninth Circuit: Dual-Nationality Reasoning in Dicta

The Ninth Circuit has approached the dual-nationality issue most directly in Jang v. Lynch, 812 F.3d 1187 (9th Cir. 2015), a case concerning a North Korean applicant who had acquired (or could claim) South Korean citizenship. In a discussion of the interplay between the North Korean Human Rights Act of 2004 and the firm-resettlement bar, the Ninth Circuit observed in passing that “[t]o receive asylum, a person of dual nationality must demonstrate a well-founded fear of persecution in both countries.”32 That statement, however, was not the holding of Jang. The actual issue before the court was whether the firm-resettlement bar applied notwithstanding 22 U.S.C. § 7842(b); the case was ultimately decided on firm-resettlement grounds, and the Ninth Circuit denied the petition for that reason. The dual-nationality gloss was dicta, and it was stated without any analysis of the statutory text or legislative history that drove the Zepeda-Lopez opinion. Our earlier analysis of Jang v. Lynch expands on that decision’s reasoning and the role of the North Korean Human Rights Act in the refugee framework.

Because Jang’s dual-nationality statement is dicta — and because the Ninth Circuit has not revisited the question in a precedential decision since Zepeda-Lopez — a Ninth Circuit panel confronted with the issue in a case where the firm-resettlement bar does not apply could, in principle, find Zepeda-Lopez’s textualist analysis persuasive.

B. The Eighth Circuit: Firm Resettlement, Not the Dual Nationality Bar

In Rife v. Ashcroft, 374 F.3d 606 (8th Cir. 2004), the Eighth Circuit considered an asylum claim by applicants who had fled Azerbaijan, traveled to Israel, and were granted Israeli citizenship under the Law of Return before ultimately coming to the United States. The court applied the firm-resettlement framework to resolve the case, not a threshold dual-nationality bar.33 Rife predates Matter of B-R- but is consistent with the pre-2013 approach and, by implication, supports Zepeda-Lopez’s conclusion that Congress embedded the “safe homeland” concept in firm resettlement, not in the refugee definition itself.

C. The Second Circuit’s Own Prior Case Law: Tchitchui and Sall

Two Second Circuit decisions that long predate Zepeda-Lopez are frequently cited on this topic. In Sall v. Gonzales, 437 F.3d 229 (2d Cir. 2006) (per curiam), the court articulated what is now a familiar formulation: “The United States offers asylum to refugees not to provide them with a broader choice of safe homelands, but rather, to protect those arrivals with nowhere else to turn.”34 In Tchitchui v. Holder, 657 F.3d 132 (2d Cir. 2011), the court repeated that formulation in the firm-resettlement context and held that significant pre-flight ties to a third country could establish firm resettlement.35 The Board in Matter of B-R- cited Tchitchui for the proposition that the refugee definition should be construed to exclude those with a safe alternative. The Zepeda-Lopez panel rejected that extrapolation. Tchitchui and Sall describe what firm resettlement does; they do not expand the refugee definition beyond its plain statutory text.

D. Other Circuits: No Published Decisions Squarely on Point

Research reveals no published decision from the First, Third, Fourth, Fifth, Sixth, Seventh, Tenth, Eleventh, or D.C. Circuits in which a panel has squarely confronted Matter of B-R- and either adopted or rejected Zepeda-Lopez’s reasoning. The question has arisen occasionally in unpublished, non-precedential dispositions, but these are not binding on future panels and have largely proceeded by assuming Matter of B-R- without independent analysis. Practically, this means that outside the Second Circuit, adjudicators are still bound by the BIA’s precedent in Matter of B-R- as a matter of agency practice, even as a well-developed body of circuit authority on that question remains conspicuously absent.

E. The Post-Loper Bright Landscape

One further doctrinal development bears emphasis. On June 28, 2024 — two years to the day after Zepeda-Lopez — the Supreme Court decided Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruling Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).36 Under Loper Bright, federal courts may no longer defer to an agency’s “reasonable” interpretation of an ambiguous statute; the courts must instead exercise independent judgment as to the “best meaning” of the statutory text, according agency views only the weight they command on their merits under Skidmore v. Swift & Co., 323 U.S. 134 (1944).37

Two implications for the dual-nationality question follow. First, any argument the BIA might have made that Matter of B-R- is entitled to Chevron deference — a pillar of the Board’s reasoning — has lost its foundation. Second, because Zepeda-Lopez itself rested on the statute’s unambiguity (a Chevron step-one holding), its analysis is entirely compatible with — indeed, fortified by — the post-Loper Bright regime. An applicant arguing in any circuit today that Matter of B-R- should not bind the reviewing court can point both to Zepeda-Lopez’s statutory analysis and to Loper Bright’s rejection of reflexive Chevron deference. Although Loper Bright did not automatically overrule earlier decisions applying Chevron,38 a BIA precedent resting on a contestable “ambiguity” finding is especially vulnerable to renewed challenge.

Practical Implications for Applicants and Practitioners

A. Cases Within the Second Circuit

For cases arising in New York, Connecticut, or Vermont, Zepeda-Lopez controls. An applicant who has established a well-founded fear of persecution in one country of nationality has satisfied the “refugee” definition in INA § 101(a)(42)(A); no additional showing with respect to any other country of nationality is required at the refugee-definition stage. The practical consequence is that adjudicators in the Second Circuit cannot deny asylum at the threshold for failure to establish persecution in a second country of nationality. Our published Ability of Nationals of More Than One Country To Win Asylum analysis discusses these jurisdictional parameters in more detail.

Practitioners should, however, be clear-eyed about what still must be proven. Second Circuit applicants who are dual nationals should expect the government to raise — and should be prepared to rebut — the firm-resettlement bar, the safe-third-country bar, and discretionary factors drawn from the applicant’s ties to the second country of nationality. A helpful mental model is to treat Second Circuit dual-nationality cases as ordinary asylum cases in which firm resettlement is often a live issue.

B. Cases Outside the Second Circuit

Matter of B-R- remains binding BIA precedent in the rest of the country. Applicants who can establish persecution in only one of their countries of nationality should expect adjudicators to apply the dual-nationality bar unless and until the circuit of the applicant’s venue recognizes Zepeda-Lopez. Two strategies follow.

First, the applicant should consider whether a well-founded fear of persecution in the second country can, in fact, be established. Even a relatively modest showing of country-conditions evidence, combined with individualized risk (for example, the applicant’s political profile, ethnicity, or prior activism that would extend to the second country) can sometimes satisfy the Board’s burden-shifting framework.

Second, counsel should preserve the argument for circuit review. Even outside the Second Circuit, a petition for review presents an opportunity to ask the reviewing circuit either (a) to adopt Zepeda-Lopez’s reasoning as a matter of first impression, or (b) to find Matter of B-R- no longer entitled to deference under Loper Bright. Both arguments should be raised before the immigration judge and preserved on administrative appeal. A reference to the Board’s lack of textual foundation and to Judge Chin’s careful statutory analysis will be far more effective if it first appears in a properly preserved record.

A few additional considerations are worth flagging regardless of venue. Dual nationality can be relevant to the discretionary grant of asylum even where Matter of B-R- does not apply. The BIA’s framework in Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987), directs adjudicators to consider the totality of the circumstances, including the availability of protection elsewhere. Matter of Soleimani, 20 I. & N. Dec. 99 (BIA 1989), illustrates how discretionary principles can appropriately weigh a dual national’s ties to a second country of nationality (including language, family, and prior connections), without categorically excluding the applicant from the refugee definition.39

Finally, counsel should remember that internal relocation, past persecution presumptions, and return trips to the country of nationality are distinct doctrinal questions that may arise alongside the dual-nationality issue. For related resources, see our articles on internal relocation, persecution and asylum law, and readmission of asylees and refugees after international travel.

D. Documentation Strategy for Dual-National Applicants

In a case where the government may raise the B-R- bar, the record matters. Counsel should build the record to address, at a minimum: (i) the applicant’s actual connection (or lack of connection) to the second country of nationality, including whether the applicant has ever lived, worked, studied, or maintained family ties there; (ii) whether the applicant has ever held or used travel documents issued by the second country; (iii) whether there is any basis — under country-conditions materials — to conclude that the second country would not protect the applicant (for example, because the applicant’s protected characteristic is cognizable there); (iv) whether acceptance of the second nationality is practically or legally available to the applicant without exposing her to refoulement; and (v) whether acquiring the second nationality would require return to, or contact with, the persecuting state. Experienced counsel can translate these facts into either a firm-resettlement rebuttal or, in jurisdictions where B-R- still applies, evidence that the second country will not provide meaningful protection.

Conclusion

The debate over dual nationality in United States asylum law ultimately turns on a question of statutory fidelity. Did Congress, when it enacted the Refugee Act of 1980, incorporate by silence a clause from the 1951 Convention that it had every opportunity to adopt and chose not to? The BIA answered yes in Matter of B-R-. The Second Circuit, in Zepeda-Lopez v. Garland, answered no — and its answer is a careful, textualist one that rests on the unambiguous language Congress enacted.

For the moment, Zepeda-Lopez is the law in the Second Circuit and a persuasive authority everywhere else. Matter of B-R- remains binding BIA precedent elsewhere, but its doctrinal foundation — Chevron deference to an assertedly ambiguous statute — has been substantially weakened by Loper Bright. Whether the other circuits will ultimately follow the Second Circuit, or whether the BIA will revisit Matter of B-R- in a future published decision, is an open question. In the meantime, every dual-national asylum applicant — and every attorney representing one — needs to understand both regimes, because which one applies will turn on the accident of geography.

How Our Firm Can Help

The Law Offices of Grinberg & Segal, PLLC has extensive experience representing asylum seekers with complex nationality issues before the immigration courts, the BIA, and the federal courts of appeals, including the Second Circuit. If you are a dual national who has fled persecution in one country of citizenship and are considering an asylum application — or if you are an attorney handling such a case and want to discuss strategy — please contact our office for a consultation. To learn more about our asylum practice, see our Asylum & Refugee Protection resource page.

Please note that this article is for informational purposes only and does not constitute legal advice. Immigration law changes frequently, and individual cases turn on their specific facts. An experienced immigration attorney should be consulted before making decisions regarding an asylum application.

  1. 8 U.S.C. § 1101(a)(42)(A); see also INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). For an introduction to the statutory asylum framework, see Seeking Asylum in the United States (myattorneyusa.com).
  2. Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013) (“An alien who is a citizen or national of more than one country but has no fear of persecution in one of those countries does not qualify as a ‘refugee’ under [INA § 101(a)(42)] . . . and is ineligible for asylum.”).
  3. Zepeda-Lopez v. Garland, 38 F.4th 315, 318 (2d Cir. 2022).
  4. Convention Relating to the Status of Refugees, opened for signature July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) [hereinafter “1951 Convention”].
  5. 1951 Convention art. 1(A)(2).
  6. Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968).
  7. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 U.S.C., including 8 U.S.C. §§ 1101(a)(42), 1157–1159).
  8. 8 U.S.C. § 1101(a)(42)(A) (emphasis added).
  9. Matter of Sun, 12 I. & N. Dec. 36, 38–39 (Reg’l Comm’r 1966); see also Matter of A-G-G-, 25 I. & N. Dec. 486, 490–91 (BIA 2011) (discussing Sun as an exemplar of pre-1980 firm-resettlement practice).
  10. Dep’t of Justice, INS, Refugee and Asylum Procedures, 45 Fed. Reg. 37,392, 37,393–95 (June 2, 1980) (interim rule codified at 8 C.F.R. §§ 207.1(b), 208.8(f)(1)(ii), 208.14).
  11. Jon Bauer, Multiple Nationality and Refugees, 47 Vand. J. Transnat’l L. 905, 976 (2014) (tracing the Soviet-Jewish refugee context that shaped the 1980 Act’s treatment of dual nationals).
  12. Matter of B-R-, 26 I. & N. Dec. at 119–20.
  13. Id. at 120.
  14. Id. at 122.
  15. Id. at 121; see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
  16. Matter of B-R-, 26 I. & N. Dec. at 121 (citing 1951 Convention art. 1(A)(2
  17. Id. at 121–22.
  18. Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011) (per curiam) (quoting Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per curiam). For a discussion of Matter of B-R-‘s burden-shifting framework, see Matter of B-R-, 26 I&N Dec. 119 (BIA 2013): Asylum/Refugee Applications and Dual Nationality (myattorneyusa.com).
  19. Matter of B-R-, 26 I. & N. Dec. at 122.
  20. Bauer, supra note 11, at 907–08, 913–17.
  21. Zepeda-Lopez, 38 F.4th at 318–19.
  22. Id. at 319.
  23. Id.
  24. Id. at 318.
  25. Id. at 323.
  26. Id. at 320.
  27. Id. at 320–22.
  28. Id. at 321–22.
  29. INA §§ 208(a)(2), 208(b)(2), 208(c)(2)(E), 8 U.S.C. §§ 1158(a)(2), 1158(b)(2), 1158(c)(2)(E); see generally Bars to Eligibility for Asylum (myattorneyusa.com).
  30. Zepeda-Lopez, 38 F.4th at 321.
  31. For a practitioner-oriented discussion of these bars and their interplay with Zepeda-Lopez, see Ability of Nationals of More Than One Country To Win Asylum (myattorneyusa.com).
  32. Jang v. Lynch, 812 F.3d 1187, 1191 (9th Cir. 2015). For further analysis see Jang v. Lynch: North Korean Citizens Who Become South Korean Citizens Are Subject to the Firm Resettlement Bar (myattorneyusa.com).
  33. Rife v. Ashcroft, 374 F.3d 606, 611–12 (8th Cir. 2004).
  34. Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006) (per curiam).
  35. Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011) (per curiam).
  36. Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).
  37. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
  38. Loper Bright, 603 U.S. at 412 (“[W]e do not call into question prior cases that relied on the Chevron framework.”).
  39. Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987); Matter of Soleimani, 20 I. & N. Dec. 99 (BIA 1989).