B-R-, 26 I&N Dec. 119 (BIA 2013)

Cite as 26 I&N Dec. 119 (BIA 2013) Interim Decision #3780
Matter of B-R-, Respondent
Decided May 3, 2013
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
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.
FOR RESPONDENT: Matthew Boyd Weber, Esquire, Miami, Florida
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
In a decision dated July 11, 2011, an Immigration Judge denied the
respondent’s applications for relief and ordered him removed from the
United States. The respondent has appealed from that decision, challenging
only the denial of his application for asylum under section 208
of the Immigration and Nationality Act, 8 U.S.C. § 1158 (2006). 1
respondent’s request for oral argument is denied, and his appeal will be
The respondent is a native and citizen of Venezuela who was admitted
to the United States on June 28, 2009, as a nonimmigrant visitor and
remained beyond the date of his authorized stay. In April 2010, the
respondent filed an application for asylum, asserting that he was a journalist
in Venezuela and was attacked and threatened by pro-Chavez groups. The
Department of Homeland Security (“DHS”) issued a notice to appear on
May 26, 2010, charging that the respondent is removable under section
237(a)(1)(B) of the Act, 8 U.S.C. § 1227(a)(1)(B) (2006), as an alien who
remained in the United States longer than permitted.
1 The Immigration Judge concluded that the respondent did not establish a claim for
withholding of removal from Venezuela. The respondent has declined to contest that
determination on appeal.Cite as 26 I&N Dec. 119 (BIA 2013) Interim Decision #3780
At his hearing, the respondent conceded removability and applied for
relief from removal based on his claimed fear of returning to Venezuela.
The DHS submitted evidence that the respondent was a citizen of Spain by
birth, because his father was born in Spain and was a citizen of that country.
The Immigration Judge requested briefs from the parties on the issue of the
respondent’s nationality. The respondent filed a brief in which he argued
that even if he was a dual national of Venezuela and Spain, he did not have
to establish a well-founded fear from both countries to be eligible for
On March 11, 2011, the Immigration Judge issued an interim order,
which she subsequently incorporated by reference into her July 11, 2011,
decision. In the interim order, she determined that “the Respondent may be
a national of Spain due to his father’s citizenship and nationality” and that
“if he is in fact found to be a dual national of both [Spain and Venezuela],”
he would have to establish a well-founded fear of returning to both
The Immigration Judge subsequently received testimony from the
respondent and his wife. While the respondent did not concede the factual
issue of his nationality, he admitted that his father was a citizen of Spain.
Based on the evidence in the record, the Immigration Judge found that the
respondent was a citizen or national of Spain, as well as Venezuela. The
respondent did not express a fear of persecution in Spain. Since the
respondent could safely live in Spain, the Immigration Judge concluded
that he was not a “refugee,” as that term is defined in section 101(a)(42) of
the Act, 8 U.S.C. § 1101(a)(42) (2006).2
On appeal, the respondent does not contest that he is a citizen or
national of Spain based on his father’s birth and citizenship. Rather, he
argues that his asylum claim is not prevented by either the “safe third
country” exception in section 208(a)(2)(A) of the Act or the “firm
resettlement” exception in section 208(b)(2)(A)(vi). The respondent further
contends that the statutory definition of a “refugee” does not require that an
alien claim persecution in every country to which he may be returned. He
interprets the phrase “any country” in section 101(a)(42) of the Act to mean
that he need only fear returning to one of the countries in which he has
nationality or citizenship.
Section 101(a)(42) of the Act provides in pertinent part:
The term “refugee” means (A) any person who is outside any country of such
person’s nationality . . . 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 . . . .Cite as 26 I&N Dec. 119 (BIA 2013) Interim Decision #3780
We agree with the respondent that the “safe third country” and “firm
resettlement” exceptions do not apply to his circumstances.3 Nevertheless,
we agree with the Immigration Judge that the respondent is not a “refugee”
as contemplated by the Act, because he is a citizen or national of a country
to which he does not fear returning.
The circumstance of dual nationality is not specifically addressed in
section 101(a)(42) of the Act. The legislative history of the provision
affords some guidance, however. Section 101(a)(42) of the Act was added
by section 201(a) of the Refugee Act of 1980, Pub. L. No. 96-912, 94 Stat.
102, 102. In setting forth the definition of a “refugee,” 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, available at
http://www.unhcr.org/3b66c2aa10.html (“Convention”).4
See S. Rep. No.
96-256, at 14-15 (1979), reprinted in 1980 U.S.C.C.A.N. 141, at 154-55,
1979 WL 10382 (Leg. Hist.) (“Section 201(a) of the bill provides a new
refugee definition which basically conforms to that of the United Nations
Convention and Protocol Relating to the Status of Refugees.”). In defining
the term “refugee,” the Convention stated:
In the case of a person who has more than one nationality, the term “the
country of his nationality” shall mean each of the countries of which he
is a national, and 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.
Convention art. 1(A)(2) (emphasis added).
This construction of the statute is consistent with the history of the
Refugee Act. Prior to 1980, refugee status was limited to certain specific
countries. The Senate Report to the Refugee Act of 1980 also clarifies that
the phrase “any country” in section 101(a)(42) of the Act referred to the
elimination of the geographical and ideological restrictions in the former
section 203(a)(7) of the Act, 8 U.S.C. § 1153(a)(7) (1976), which had
limited conditional entrant refugees to those from certain Middle Eastern or
3 There is no bilateral agreement between the United States and Spain concerning
removal of aliens, as required by the safe third country exception. See section
208(a)(2)(A) of the Act. There is also no evidence that the respondent was “firmly
resettled” in Spain prior to arriving in the United States. See section 208(b)(2)(A)(vi) of
the Act; 8 C.F.R. § 1208.15 (2012).
4 The 1951 Convention was incorporated into the 1967 Protocol Relating to the Status of
Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.S.T. 267 (entered
into force Oct. 4, 1967; for United States Nov. 1, 1968). The United States is a party to
the 1967 Protocol. See INS v. Cardoza-Fonseca, 480 U.S. 421, 438 n.21 (1987).Cite as 26 I&N Dec. 119 (BIA 2013) Interim Decision #3780
Communist countries. S. Rep. No. 96-256, at 4, 15, 1980 U.S.C.C.A.N. at
144, 155. Accordingly, the most reasonable reading of the word “any” in
the “refugee” definition is to allow aliens from any country to qualify as a
refugee, not just those from the Middle East or Communist countries.
In this case, the respondent has the option to reside in Spain as a citizen
or national of that country. Once nationality is established, it is the alien’s
burden to demonstrate that the alternative country of nationality will
not offer him protection. The respondent does not make an argument
that he has unsuccessfully “availed himself of the protection of” Spain.
Convention art. 1(A)(2). Therefore he is not a “refugee” as that term is
defined in section 101(a)(42) of the Act, and he is not eligible for asylum in
the United States.
“[T]he core regulatory purpose of asylum . . . is ‘not to provide
[applicants] with a broader choice of safe homelands,’ but rather, to ‘protect
[refugees] with nowhere else to turn.’” Tchitchui v. Holder, 657 F.3d 132,
137 (2d Cir. 2011) (quoting Sall v. Gonzales, 437 F.3d 229, 233 (2d Cir.
2006)); see also Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 668-69 (BIA
2012). This principle comports with the language of the 1951 Convention
and is further reflected in the firm resettlement and safe third country
provisions of the Act. Moreover, section 208(c)(2)(E) of the Act provides
that a grant of asylum may be terminated if the alien has “acquired a new
nationality and enjoys the protection of the country of his or her new
nationality.” These provisions all limit an alien’s ability to claim asylum in
the United States when other safe options are available.
The Secretary of Homeland Security has the authority to “remove the
alien to a country of which the alien is a subject, national, or citizen unless
the government of the country . . . is not willing to accept the alien into the
country.” Section 241(b)(2)(D)(ii) of the Act, 8 U.S.C. § 1231(b)(2)(D)(ii)
(2006) (emphasis added); see also Jama v. Immigration and Customs
Enforcement, 543 U.S. 335, 338–42 & n.1 (2005) (discussing the
Secretary’s removal authority, which was vested in the Attorney General
prior to March 1, 2003). Considering the language and design of the statute
as a whole, we read the phrase “a country” to allow the Secretary to remove
an alien to any country of which the alien is a subject, national, or citizen.
See Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007). By using
“a” rather than “the,” Congress indicated that an alien can physically be
removed to only one country, even though there may be more than one
Regardless of the respondent’s claimed fear of returning to Venezuela,
he did not express any fear of persecution in Spain. Therefore the
Immigration Judge properly concluded that the respondent is ineligible for
asylum. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.