MATTER OF PULA
In Exclusion Proceedings
A-26873482
Decided by Board September 22, 1987
Interim Decision #3033
An alien‘s manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications. - The circumvention of orderly refugee procedures can be a serious adverse factor in determining whether to grant asylum; however, it should not be considered in such a way that the practical effect is to deny relief in all cases.
- The circumvention of the immigration laws is only one of a number of factors which should be balanced in exercising discretion, and the weight accorded to this factor may vary depending on the facts of a particular case.
- The circumvention of orderly refugee procedures alone is insufficient to require the most unusual showing of countervailing equities. Matter of Salim, 18 I&N Dec. 311 (BIA 1982), modified.
EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [
Sec. 212(a)(20) [
ON BEHALF OF APPLICANT:
Joanna Miller Bukszpan, Esquire
1414 Avenue of the Americas
New York, New York 10019
ON BEHALF OF SERVICE:
Janice Podolny
Appellate Counsel
Alan L. Page
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring and Dissenting Opinion: Heilman, Board Member.
In a decision dated December 1, 1986, the immigration judge found the applicant excludable under sections 212(a)(19) and (20) of the Immigration and Nationality Act,
The applicant is a 26-year-old married male native of Albania and citizen of Yugoslavia. He arrived in the United States on June 5, 1986, and was placed in exclusion proceedings. The applicant does not contest on appeal his excludability under sections 212(a)(19) and (20) of the Act. We are satisfied from a review of the record that the applicant received a fair hearing and that his excludability has been clearly established. The only issues to be decided by the present appeal are whether the immigration judge‘s denial of asylum and grant of withholding of deportation to Yugoslavia were proper.
The applicant testified that he was born in Albania and fled to Yugoslavia with his family as a refugee when he was 5 years old. He said that he left Yugoslavia in 1986 to avoid further encounters with police officials who, on numerous occasions since 1979, had detained, interrogated, and physically abused him for hours or days at a time. He stated that the police insisted that he was involved in the political activities of the Albanian minority in Yugoslavia, although he denied the accusation. He said that the police sought information from him about such matters as his contacts with his Albanian family and friends, Albanian anti-government demonstrations, and discussions among local Albanian university students. He also testified that one of the periods of detention occurred in 1982 after he approached Yugoslav authorities to request travel documents to visit his sister in the United States. The applicant explained that the police accused him of planning to go to the United States to participate in anti-Yugoslav demonstrations with Albanians here.
The applicant further advised that in 1985 Yugoslav authorities did issue him a titre de voyage2 so he could travel out of the country, but the American Embassy denied his application for a visa. According to the applicant, he was told at the embassy that the titre de voyage did not guarantee his return to Yugoslavia. The ap-
In addition, the applicant testified that he stayed in Brussels for 6 weeks with a man who had been a friend of his family in Albania and Yugoslavia. He said that his friend made a telephone call on his behalf to a refugee organization in Italy to inquire about whether he could obtain residency in an Italian refugee camp. According to the applicant, his friend was informed by the organization that citizens of Yugoslavia were not accepted as refugees in European states. The applicant also said that while he was in Brussels he applied for a tourist visa at the American Embassy, but his application was denied and he was told to go to Yugoslavia to apply for a visa. He testified that he did not ask for asylum at the American Embassy because he did not know that he could do so.
The applicant also stated that one day while he was discussing his situation in an Albanian coffee house in Belgium, a stranger there offered to sell him a titre de voyage for $1,000. He said that he gave the man his photograph and paid him the money 2 days later, when he returned with a titre de voyage issued by the Government of Belgium which had a tourist visa to the United States already entered. The applicant advised that the titre de voyage had been issued in the name of someone whom he did not know.
The applicant further testified that on June 5, 1986, he flew with his titre de voyage from Belgium to New York. He said that during a 2- to 3-hour stopover at the airport in Amsterdam, he mailed his Yugoslav passport to a cousin in the United States to avoid having it in his possession when he landed in New York. He explained that his inability to speak English made him concerned that immigration officials might discover the passport and put him on a plane to Yugoslavia before he could tell them about his desire for asylum. The applicant also stated that he did not dispose of the Yugoslav passport altogether because he planned to use it later to corroborate his account of events for his asylum request. In addition, the applicant advised that when he arrived in New York, lan-
The applicant also testified that he chose to flee to the United States because he had relatives here. He stated that he had a sister and two uncles who were lawful permanent residents of the United States, and cousins who were United States citizens. He further advised that his wife, who was still living in Yugoslavia with their daughter, also had an uncle and cousins in the United States. The record reflects that many of the applicant‘s relatives traveled from such places as upstate New York, Texas, and California on multiple occasions to attend the applicant‘s hearings in New York City.
In his decision, the immigration judge stated that if the facts as described by the applicant were true, they established without a doubt that the applicant had been persecuted in the past and faced a clear probability of persecution in the future. The immigration judge then made a specific finding that the applicant‘s testimony was credible, noting that he had observed the applicant testify for approximately 8 hours over a period of 2 days. He accordingly found that the applicant had established his eligibility for withholding of deportation to Yugoslavia and Albania. The immigration judge further found, however, that the applicant was not eligible for asylum as a matter of discretion because the equity of his many relatives legally in the United States did not overcome the adverse factor of his having sought admission to the United States by use of a purchased travel document.
On appeal, the Service contends that the applicant has not established his eligibility for asylum or withholding of deportation to Yugoslavia because his testimony is not credible. It is argued that the applicant‘s persecution claim rests primarily on his own self-serving statements, that discrepancies exist between his testimony and his written asylum application, and that some of the facts to which he testified, such as his receipt of Yugoslav citizenship and a Yugoslav passport, are inconsistent with a clear probability or a well-founded fear of persecution. In addition, the Service maintains that the immigration judge correctly denied asylum in the exercise of discretion because the applicant sought admission to the United States with a false travel document.
The applicant asserts on appeal that there is no basis to disturb the immigration judge‘s credibility finding, and that he merits asylum on both statutory and discretionary grounds. He contends that the immigration judge gave undue weight to his manner of attempted entry in denying asylum in the exercise of discretion. He argues that in Matter of Salim, 18 I&N Dec. 311 (BIA 1982), the
The applicant bears the evidentiary burdens of proof and persuasion in any application for withholding of deportation under section 243(h) or asylum under section 208 of the Act. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985);
To be eligible for withholding of deportation pursuant to section 243(h) of the Act, an alien‘s facts must show a clear probability of persecution in the country designated for deportation, on account of race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407 (1984). This means that the alien‘s facts must establish that it is more likely than not he would be subject to persecution for one of the grounds specified. Id.
To be eligible for asylum under section 208 of the Act, an alien must meet the definition of a “refugee,” which requires him to show persecution or a well-founded fear of persecution in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 101(a)(42)(A) of the Act,
We find no merit in the assertion by the Service that the immigration judge erred in assessing the applicant‘s credibility. The immigration judge found the applicant to be credible after observing his demeanor and listening to his testimony for 8 hours over a period of 2 days. The finding of an immigration judge with respect to the credibility of witnesses appearing before him will ordinarily be given great weight. Wing Ding Chan v. INS, 631 F.2d 978 (D.C. Cir. 1980), cert. denied, 450 U.S. 921 (1981); Vasquez-Mondragon v. INS, 560 F.2d 1225 (5th Cir. 1977); Matter of Magana, 17 I&N Dec. 111 (BIA 1979); Matter of Teng, 15 I&N Dec. 516 (BIA 1975); Matter of T-, 7 I&N Dec. 417 (BIA 1957). We have carefully examined the record in this case and conclude that the immigration judge‘s determination is correct. In view of the detail, consistency, and candor of the applicant‘s lengthy testimony, we do not find that his credibility is impeached by the minor discrepancies in his written asylum application, which was prepared with the assistance of interpreters.
We further agree with the immigration judge‘s conclusion that if the applicant‘s testimony is true, it establishes that the applicant has been persecuted. We have considered the Service‘s argument that some of the actions of Yugoslav authorities towards the applicant, i.e., granting him citizenship and issuing him a passport, appear inconsistent with an intent to persecute. Yet because the record reflects that those authorities nevertheless have persecuted the applicant, these apparent inconsistencies in treatment provide an insufficient basis, under the facts of this case, for rejecting the applicant‘s persecution claim. We conclude, therefore, that a reasonable person in the applicant‘s circumstances would fear persecution if returned to Yugoslavia, and that the applicant has established his statutory eligibility for asylum.
We turn now to the issue of whether the applicant merits asylum in the exercise of discretion. In Matter of Salim, supra, we denied asylum as a matter of discretion to an alien who was excludable under section 212(a)(19) of the Act and who attempted to circumvent the orderly procedures provided for refugees to immigrate lawfully. We found the fraudulent avoidance of orderly refugee procedures to be an extremely adverse factor which could only be overcome with the most unusual showing of countervailing equities.
The applicant argues that the decision in Matter of Salim, supra, improperly considered the alien‘s manner of attempted entry, because it overlooked language in section 208(a) of the Act, “irrespective of such alien‘s status,” which makes the manner of entry irrelevant to eligibility for asylum. We reject the applicant‘s argument. Section 208(a) of the Act provides:
The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien‘s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A).
Yet while we find that an alien‘s manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications, we agree with the applicant that Matter of Salim, supra, places too much emphasis on the circumvention of orderly refugee procedures. This circumvention can be a serious adverse factor, but it should not be considered in such a way that the practical effect is to deny relief in virtually all cases. This factor is only one of a number of factors which should be balanced in exercising discretion, and the weight accorded to this factor may vary depending on the facts of a particular case. We therefore withdraw from Matter of Salim insofar as it suggests that the circumvention of orderly refugee procedures alone is sufficient to require the most unusual showing of countervailing equities.
Instead of focusing only on the circumvention of orderly refugee procedures, the totality of the circumstances and actions of an alien in his flight from the country where he fears persecution should be examined in determining whether a favorable exercise of discretion is warranted. Among those factors which should be considered are whether the alien passed through any other countries or arrived in the United States directly from his country, whether orderly refugee procedures were in fact available to help him in
In addition to the circumstances and actions of the alien in his flight from the country where he fears persecution, general humanitarian considerations, such as an alien‘s tender age or poor health, may also be relevant in a discretionary determination. A situation of particular concern involves an alien who has established his statutory eligibility for asylum but cannot meet the higher burden required for withholding of deportation. Deportation to a country where the alien may be persecuted thus becomes a strong possibility. In such a case, the discretionary factors should be carefully evaluated in light of the unusually harsh consequences which may befall an alien who has established a well-founded fear of persecution; the danger of persecution should generally outweigh all but the most egregious of adverse factors.
Each of the factors mentioned above will not, of course, be found in every case. An applicant for asylum has the burden of establishing that the favorable exercise of discretion is warranted. Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). Therefore, the alien should present evidence on any relevant factors which he believes support the favorable exercise of discretion in his case. In the absence of any adverse factors, however, asylum should be granted in the exercise of discretion.
In the case before us, the applicant attempted to enter the United States with a fraudulent document. Yet we note that the
Accordingly, the applicant‘s appeal will be sustained and the Service‘s appeal will be dismissed.
ORDER: The applicant‘s appeal is sustained and the Service‘s appeal is dismissed.
FURTHER ORDER: The applicant is granted asylum pursuant to section 208 of the Immigration and Nationality Act, as amended, and the exclusion proceedings are terminated.
MATTER OF PULA
Interim Decision #3033
Michael J. Heilman, Board Member
Equally as important, those decisions disregarded the clear language and clear purpose of section 208 of the Immigration and Nationality Act,
In my estimation, that subsection makes more sense if that phrase is read to describe the alien, not the procedure for adjudicating the asylum claim. This is so for two reasons. The first is the fact that there have been different procedures for different aliens to apply for asylum depending on their status and other factors. If this language required a single procedure, then it has never been implemented in that manner.
Secondly, the purpose of the asylum provision would be better served by abandoning the fixation with the manner in which the asylum applicant has arrived in the United States or at a port of entry. The asylum provisions are humanitarian in their essence and indeed recognize that the forces which impel persons to seek refuge may be so overwhelming that the “normal” immigration laws cannot be applied in their usual manner. This fact was recognized in the United Nations Convention and Protocol Relating to the Status of Refugees,1 the international agreement which the asylum provisions implement. Not only did the Convention recognize the abnormal situations which give rise to refugee flows, it specifically forbade its signatories in Article 31 from penalizing a person who violated a signatory‘s borders, if the person presented himself promptly after arrival. Since the United States is a signatory to the Protocol and purports to apply the asylum and refugee laws consistently with that agreement, there seems little justification for the approach taken by the majority.