The Board of Immigration Appeals (BIA) — the DOJ tribunal that reviews immigration decisions — issued an opinion last week in Matter of B-S-A-N-, adopting two commonsense rules it has nonetheless shied away from in the past: (1) nationals of “highly developed, democratic countries that broadly respect and protect human rights” usually don’t need U.S. protection; and (2) citizens of the European Union (EU) “are presumptively ineligible for a discretionary grant of asylum in the United States” because they can usually move to any of the other 26 member states. The real question is what took so long?
B-S-A-N-
The respondent, identified only as “B-S-A-N-” due to regulations that bar the disclosure of information relating to asylum applications, was born in France and is a dual citizen of both France and the western African country of Gabon.
She entered the United States as a nonimmigrant student more than 10 years ago, in August 2016, but “failed to attend school as required”.
Nearly two years after she was admitted, B-S-A-N- filed an “affirmative” asylum application with USCIS, and a year later (in July 2019), DHS placed her into removal proceedings.
As relief from removal, she filed a “defensive” application with the immigration judge (IJ) seeking asylum under section 208 of the Immigration and Nationality Act (INA), withholding of removal under section 241(b)(3) of the INA (“statutory withholding”), and protection under Article III of the Convention Against Torture (CAT).
In its 2013 opinion in Matter of B-R-, the Board held that aliens who are citizens or nationals of two or more countries but have no fear of persecution in at least one of those countries aren’t “refugees” as defined in section 101(a)(42) of the INA, a condition precedent to being granted asylum.
Consequently, B-S-A-N- was required to prove that she would be persecuted in both Gabon and France to receive the protections she sought.
To satisfy that requirement, she contended that if she were returned to Gabon (where she lived most of her life), “she will be harmed based on her family’s opposition to the rule of Ali Bongo, the former president of Gabon, and his Gabonese Democratic Party (‘PDG’)”, but if she were sent to France instead, “agents of the Gabonese Government would find and harm her” there.
Matter of B-S-A-N-
As proof she would be harmed in France, the respondent pointed generally to the “diplomatic, military, and economic ties between France and Gabon” and more specifically alleged that when her cousin tried to renew his Gabonese passport in France after participating in a protest, the Gabonese government confiscated it.
The BIA concluded B-S-A-N- failed to explain how the ties between Paris and its former colony “demonstrate that Gabonese officials in France would have the desire and ability to target her for persecution”, held that the seizure of her cousin’s passport issue “does not amount to persecution as a matter of law”, and found that she failed to show how that purported incident was in any way tied to her — particularly because “her two sisters have lived unharmed in France for many years” despite their perceived opposition to the PDG.
Consequently, the BIA denied her applications and ordered her removed to France, the country of removal designated by the IJ.
“Asylum Claims by Nationals of Safe Countries”
If that had been the sum total of the Board’s analysis, it likely wouldn’t have published its decision, but it went further, using this case to address what has long been the elephant in the asylum room: the degree to which adjudicators must consider claims made by nationals of objectively “safe countries”.
While applications from such countries aren’t the norm, they aren’t uncommon, either.
For example, in FY 2023 (the last year DOJ published statistics on immigration court asylum adjudications by nationality), IJs issued decisions on seven applications from the Czech Republic, five from Estonia, six from France, seven from Germany, four from Greece, six from Ireland, five from Italy, seven from Japan, four from Norway, 10 from Spain, five from the United Kingdom, 14 from Hungary — and 94 from Poland.
None were granted, but then none of them were denied either, suggesting they all received some other relief or (more likely) received voluntary departure in lieu of removal and that they had simply applied for asylum to extend their unlawful stays in the United States.
Case in point is B-S-A-N-, who has been here unlawfully for at least seven years while her case played out.
Not surprisingly therefore — but with refreshing bluntness nonetheless — the BIA in Matter of B-S-A-N- concluded that, “This case illustrates the meritless nature of asylum claims by nationals of highly developed democratic countries, such as France, that are widely recognized for their human rights protections.”
Summarizing why “meritless” asylum claims are an issue in immigration court, an exasperated Board noted that:
Meritless asylum claims by nationals of highly developed, democratic countries that provide effective protection to their citizens constitute an abuse of the asylum process, waste scarce adjudicatory resources, and unfairly deprive bona fide refugees of timely consideration of their claims.
Consequently, it held that IJs “should generally deny asylum applications filed by nationals of highly developed, democratic countries that broadly respect and protect human rights, except in extraordinary circumstances involving national security or foreign policy considerations”.
“Absent such extraordinary circumstances,” the BIA concluded, “it will generally be appropriate for [IJs] to pretermit” — that is, deny without a full hearing — “asylum applications filed by nationals of those countries, typically at the master calendar stage.”
Note that the Board did not limit its holding to asylum, a humanitarian protection IJs may deny in the exercise of discretion even if applicants satisfy all of the statutory asylum requirements in section 208 of the INA.
The same rule, the BIA held, should also apply to statutory withholding and CAT applications, each of which is a “mandatory” protection IJs must grant to aliens who establish eligibility under the INA and regulations regardless of any discretionary concerns.
That’s because, as the BIA concluded, statutory withholding and CAT “require a greater likelihood of harm, and in the CAT context, ‘a greater degree of governmental complicity than is required to establish a government is unable or unwilling to protect a respondent in the asylum context’”.
Does anyone seriously believe “torture” is an issue in France, Greece, or Poland?
The “Nice” List of Countries
To eliminate any doubts, the BIA listed the countries to which this holding should apply, including: all 27 members of the EU; “Iceland, Liechtenstein, Norway, and Switzerland”, three nations “associated with the EU through the European Economic Area or European Free Trade Area”; Monaco, Andorra, and San Marino, each a “European microstate”; and the UK, Canada, Australia, New Zealand, Japan, and South Korea.
“All of these countries”, the Board explained, “are widely recognized for their extensive human rights protections, democratic values, peaceful transfer of power traditions, fair and effective justice systems, and highly developed economies”.
The Special EU Presumption
Moreover, the BIA held that the fact that nationals of “any EU country have a right to reside in any other EU country” would “further obviat[e] any claim that they need to seek protection in the United States”.
In that vein, the BIA in essence extended the “dual-national” logic in Matter of B-R- to all EU nationals, holding that such aliens “would not be entitled to asylum as matter of discretion unless” they can prove they “cannot safely reside in any of the other 26 member states of the European Union”, a likely insurmountable burden given EU nationals are, with only limited restrictions, “entitled to indefinitely reside lawfully in any EU member state and thereby obtain safe haven”.
Eliminating Asylum Abuses
This isn’t the first BIA opinion in the past two years to address a glaringly obvious abuse of our generous asylum system and streamline the immigration court adjudication process, and likely won’t be the last.
The question isn’t why the Board of Immigration Appeals is now telling IJs to cut short asylum claims filed by nationals of countries with “extensive human rights protections” and “fair and effective justice systems” — it’s why it’s taken the BIA decades to finally do so.