26 I. & N. Dec. 119
BIA2013Background
- Respondent: Venezuelan national admitted to the U.S. as a nonimmigrant in 2009, overstayed and applied for asylum in 2010 claiming persecution in Venezuela as a journalist.
- DHS charged removability for unlawful presence and submitted evidence respondent also held Spanish nationality through his father.
- Immigration Judge found respondent to be a dual national (Venezuela and Spain); respondent did not express fear of persecution in Spain.
- IJ ruled that because respondent could safely reside in Spain, he was not a "refugee" under INA §101(a)(42) and denied asylum; respondent did not appeal withholding-of-removal denial.
- BIA affirmed: safe-third-country and firm-resettlement exceptions did not apply, but dual nationality that provides a safe alternative country bars refugee status absent showing that the other country will not protect the alien.
Issues
| Issue | Respondent's Argument | DHS/Government Argument | Held |
|---|---|---|---|
| Whether a dual national who fears persecution in one country but not the other qualifies as a "refugee" under INA §101(a)(42) | Respondent: "Any country" in the statute means fear need only be shown for one country of nationality | Government: If an alien is a national of another country that will protect him, he is not a refugee | Held: Alien is not a refugee if he is a national of another country that can protect him and he has not shown that country will not offer protection |
| Whether safe-third-country or firm-resettlement bars apply | Respondent: These exceptions do not apply here | Government: N/A (BIA agreed they did not apply) | Held: Exceptions not applicable (no bilateral agreement with Spain; no evidence of firm resettlement in Spain) |
| Burden of proof on alternative nationality protection | Respondent: Need not show protection unavailable in other nationality country | Government: Alien must show the alternative national country will not protect him | Held: Once nationality established, alien must demonstrate that the other country will not protect him |
| Scope of Secretary's removal authority regarding multiple nationalities | Respondent: N/A | Government: Secretary may remove to any country of which alien is a national | Held: "A country" language permits removal to any one country of the alien's nationality |
Key Cases Cited
- Tchitchui v. Holder, 657 F.3d 132 (2d Cir. 2011) (asylum protects those with no other safe homeland)
- Sall v. Gonzales, 437 F.3d 229 (2d Cir. 2006) (asylum aims to protect refugees with nowhere else to turn)
- Jama v. Immigration and Customs Enforcement, 543 U.S. 335 (2005) (Secretary/Attorney General authority over removal destinations)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (U.S. incorporation of refugee definitions under international instruments)