Matter of B-S-A-N-: The Board Tells Judges to Generally Deny Asylum to Nationals of Developed Democracies

This decision does not reach most of our clients, and that is the first thing to say about it. It matters for two reasons: it names the countries it covers, and it shows how the Board is now using discretion and pretermission together.

The case and the holdings

The applicant was a dual citizen of France and Gabon, raised in Gabon, who feared that agents of the Gabonese government, tied to the party of former president Ali Bongo, might reach her in France. The judge denied asylum, withholding and CAT; the Board, after supplemental briefing on discretion, dismissed the appeal. It found no objectively reasonable fear in France under Matter of B-R-, and then announced two rules. The first is quoted above. The second: “European Union citizens are presumptively ineligible for a discretionary grant of asylum in the United States because they are entitled to indefinitely reside lawfully in any EU member state.”

The Board listed the countries it has in mind: the EU member states, Iceland, Liechtenstein, Norway and Switzerland, the microstates of Monaco, Andorra and San Marino, the United Kingdom, Canada, Australia, New Zealand, Japan and South Korea. It said the list reflects “current conditions” and may be added to or reduced. It extended the approach to withholding and CAT, and endorsed deciding such cases at the master calendar under Matter of H-A-A-V-. It rejected the Ninth Circuit’s “disfavored group” analysis in a footnote.

Who it does not reach

No Latin American country appears on the list. A Venezuelan, Cuban, Nicaraguan or Colombian applicant is not affected by the rule itself. The decision bears on those cases indirectly, in two ways. It confirms that the Board is willing to resolve asylum claims by category and in discretion, and it builds on the same pretermission framework we wrote about last month. And it affects applicants who hold a second nationality in one of the listed countries — a Venezuelan with Spanish or Italian citizenship, for instance, a common situation in Miami. For that person, the Board’s rule is that the European passport presumptively answers the asylum question.

There is one caveat for South Americans. In a footnote, the Board said judges weighing discretion “may similarly consider other bilateral or multilateral residence agreements affecting non-EU nationals, such as the Mercosur Residence Agreement covering certain South American countries.” Whether that footnote will be applied to a Colombian or Venezuelan applicant who could reside elsewhere in South America is an open question, and one to be prepared for.

Dual nationals with a pending claim should know which passports they hold and raise the issue with counsel before the government does.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. How dual nationality or a safe-country presumption applies to a given case depends on its facts. Consult a qualified immigration attorney. This website is attorney advertising.