GHARADAGHI

Interim Decision #3001

MATTER OF GHARADAGIII

In Exclusion Proceedings

A-23299833

Decided by Board November 1, 1985

(1) An alien who circumvents the orderly procedures for obtaining refugee status

abroad may be granted asylum as a matter of discretion if he establishes suffi-

cient countervailing equities.

(2) Generally, it will be necessary to balance the positive and negative factors in

each case where an alien's circumvention of the orderly refugee procedures does

not involve a finding of fiaud under section 212(a)(19) of the Immigration and Na-

tionality Act, 8 U.S.C. § 1182(aX19) (1982). Matter of Shirdel, 19 I&N Dec. 33 (BIA

1984); and Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified.

EXCUTTIART.R At of 1952—Sec. 212(019) U.S.C. § 1182(aX19)]—Seeks to enter

by fraud or willful misrepresentation of a material

fact

Sec. 212(020) [8 U.S.C. § 1182(aX20)]—No valid immi-

grant visa

ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:

Kenneth A. Cohen, Esquire David Dixon

Goldome Bank Building Appellate Counsel

880 Military Road

Niagara Falls, New York 14304-0198 Michael Rocco

General Attorney

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a decision dated November 6, 1984, the immigration judge

found the applicant excludable under section 212(a)(20) of the im

migration and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982); denied

his application for asylum under section 208 of the Act, 8 U.S.C.

§ 1158 (1982), in the exercise of discretion; declined to rule on his

application for withholding of deportation under section 243(h) of

the Act, 8 U.S.C. § 1253(h) (1982); and ordered that he be excluded

and deported from the United States. The applicant has appealed

from the discretionary denial of asylum. The appeal will be dis-

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Interim Decision #3001

missed. The immigration judge's decision will be modified so as to

grant the application for withholding of deportation to Iran.

The applicant, a 24-year-old single male Armenian Christian, is a

native and citizen of Iran. He sought admission to the United

States on July 27, 1984, but did not appear to be clearly admi s sible.

At his hearing, the applicant conceded excludability under section

212(a)(20) of the Act. He also requested asylum and was found to

have established a well - founded fear of persecution. The immigra-

tion judge found that the applicant was not excludable under sec-

tion 212(a)(19) of the Act. The Service has not appealed this finding.

The applicant's excludability under section 212(a)(20) of the Act

and well-founded fear of persecution are not at issue.

In early 1980, the applicant's mother, brother, and sister left

Iran, accompanied by the applicant's father, and entered Spain.

Later that year, the applicant's mother, brother, and sister were

admitted to the United States, apparently as visitors for medical

purposes. Meanwhile, the applicant's father returned to Iran in an

attempt to assist the applicant to leave Iran. This attempt was un-

successful, although the applicant's father was able to leave Iran.

From Iran, the applicant's father went to Turkey and then to Bar-

celona, Spain. The applicant's father testified that, approximately 1

month after he had gone to the American consulate in Barcelona

and advised officials of his family in the United States, he was

given a visa. On December 31, 1981, the applicant's father was in-

definitely paroled into the United States.

On October 27, 1983, the applicant, without any travel docu-

ments, was able to escape from his native country and enter Paid-

stan. The applicant testified that, when he left Iran, he intended to

come to the United States because his family, which includes a

lawful permanent resident uncle, was here. He alleged that he did

not apply for asylum in Pakistan because he did not want to

remain there. The applicant stated that, after 2 months in Paki-

stan, he registered with the United Nations as a refugee in order to

obtain a document for security purposes and in order to find out

the procedure to come to the United States. The applicant admitted

that, because he wanted to come directly to the United States, he

was refused a travel document by the United Nations. The appli-

cant testified that the United Nations told him they could not send

him directly to the United States but might be able to send him to

a country in Europe, such as Austria or Italy, where he could do

something to come to the United States. The applicant indicated

that he did not know how long it would take a refugee to reach the

United States from Europe. During this time, the applicant's

family obtained legal assistance to facilitate the applicant's admis-

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Interim Decision #3001

sion to the United States. A Request for Asylum in the United

States (Form 1-589) was submitted to the United States consulate

in Pakistan but, apparently, was returned on the grounds that the

consulate did not process refugee applications and would not issue

a visa to an alien without a passport. Subsequently, the applicant

stated he heard rumors that Pakistan, was going to extradite Arme-

nian refugees to Iran. He purchased a Portuguese passport, depart-

ed from Pakistan in May 1984, 7 months after his entry, and flew

to Canada with stopovers in Milan and Rome, Italy. He stayed 1

and 1/2 hours in Milan to refuel and 4 hours in Rome, where he

changed planes. He stated that he did not seek refugee status in

Rome because he knew Iranians, in particular, a cousin, who had

made similar requests but had been denied relief. The applicant

also stated that he destroyed his passport en route.

The applicant arrived in Canada in May 1984 and applied for ref-

ugee status. He stated that he was given $140 per month suste-

nance from the Canadian Government. He further stated that he

decided to leave Canada because he was uncertain as to the length

of time it would take to adjudicate his application and because his

Canadian attorney advised that, although he would be able to visit,

he would be unable to live permanently with his family in the

United States. Prior to adjudication of his Canadian application,

and on the date scheduled for his hearing, L e, July 27, 1984, the

applicant sought admission to the United States. The record indi-

cates that the applicant was a passenger riding in the front seat of

an automobile driven by an American Indian. The applicant stated

that he had known this man approximately 1 week, had met with

him three times, and had paid him $500 to go to New York City.

He further stated that he intended to travel from New York to his

family's home. The applicant advised that, when initially stopped

by immigration officials at the Canadian United States border, he

-

gave a name the Indian had instructed him to use. The applicant

further advised that he provided his true identity when taken to

another room. by immigration officials.

Except for specified purposes, the applicant has not been permit-

ted physically to enter the United States. He remains in Canada.

The immigration judge found that the applicant did. not warrant

a discretionary grant of asylum in view of his deliberate avoidance

of obtaining proper refugee status in Pakistan and in Rome, Italy,

and of his deliberate avoidance of the assistance of the Canadian

Government.

On appeal, the applicant argues that he merits a favorable exer-

cise of discretion. He contends that, as the absence of a finding of

fraud under section 212(2)(19) of the Act is decisive, his case is dis-

Interim Decision *3001

tinguishable from Matter of Salim, 18 I&N Dec. 311 (BIA 1982).

The applicant also points out that he did not fraudulently enter

Canada. He emphasizes that his immediate family is in the United

States, that his father could offer him employment, and that he

has been separated from his ftimily for at least 4 years.

The Service argues that Matter of Salim, supra, is not totally

based on a fraudulent entry into the United States, but on the

fraudulent avoidance of refugee procedures.

In Matter of Salim, supra, asylum under section 208 of the Act

was denied as a matter of discretion because the alien was excluda-

ble under section 212(a)(19) of the Act and because the alien at-

tempted to circumvent the orderly procedures provided for refugees

to immigrate lawfully. The fraudulent avoidance of orderly refugee

procedures was found to be an extremely adverse factor, which

could only be overcome with the most unusual showing of counter-

vailing equities.

In Matter of Shirdel, 19 MN Dec. 33 (BIA 1984), asylum was

denied as a matter of discretion to aliens who were excludable

under section 212(a)(19) of the Act, for seeking to enter by fraud,

and who had circumvented the orderly procedures for obtaining

refugee status abroad. In denying asylum, we pointed out that a

finding of excludability under section 212(a)(19) was not determina-

tive. The critical factor was that, by using fraudulent passports, the

aliens improperly bypassed the orderly procedures prescribed for

obtaining refugee status abroad. We concluded that the aliens in

,

those proceedings, whose only relatives in this country were other

asylum applicants who had arrived at the same time, had not pre-

sented sufficient countervailing equities to merit discretionary

relief. See Sarkis v. Sava, 599 F. Supp. 724 (E.D.N.Y. 1984); Walai v.

INS, 552 F. Supp. 998 (S.D.N.Y. 1982).

An alien who circumvents the orderly procedures for obtaining

refugee status is not precluded from obtaining a discretionary

grant of asylum. However, as noted in Shirdel and Salim, supra,

the alien must establish that he has sufficient countervailing equi-

ties to warrant the favorable exercise of discretion. Generally, it

will be necessary to balance the positive and negative factors in

each case, particularly where a finding of fraud is not involved.

The applicant has not established that his asylum application

should be granted as a matter of discretion. On the record before

us, we conclude that the applicant has circumvented the orderly

procedures established for refugees to immigrate lawfully to the

United States. Rather than fleeing persecution, per se, the appli-

cant's overriding purpose in seeking admission to this country is

reunification with his immediate family. The applicant's first safe

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Interim Decision #3001

haven was Pakistan where he remained approximately 7 months.

While in Pakistan, the applicant initially applied for refugee status

with the United Nations. He was refused a travel document, how-

ever, not because he failed to qualify, but because he did not want

to comply with the United Nations procedure by which refugees

are sent directly to Europe, not to the United States. Further, after

his unsuccessful attempt to obtain refugee status from the United

States consulate in Pakistan, the applicant puxchased a fraudulent

passport on which he traveled to Canada via Rome. We have con-

sidered the applicant's claim that, when he was in Pakistan, he

was fearful of being extradited to Iran but, under the circum-

stances before us, do not find it to be persuasive. The applicant was

in Rome approximately 4 hours, had changed planes, and, through

the advice of a cousin as well as the United Nations, was aware

that he could seek refugee status from the United States Govern-

ment in that city. The applicant did not apply for such status, how-

ever, apparently because his cousin's claim had been rejected. The

applicant has made no allegation that he fears or would be subject

to persecution in Italy. The applicant continued his journey to

Canada where he was given financial assistance from the Canadian

Government. He also was given a hearing regarding his application

for refugee status but failed to attend because he did not want to

wait for an adjudication which could take months and because he

wanted to be reunited with his immediate family. The applicant

has made no allegation that he fears or would be subject to perse-

cution in Canada.

We recognize that the applicant did not attempt to use his Portu-

guese passport to procure a visa from the United States by fraud.

Similarly, the applicant did not attempt to enter the United States

with a fraudulent visa or passport; nor did he attempt to enter

Canada with a fraudulent visa or passport. Nevertheless, the find-

ing of a lack of fraud pursuant to section 212(a)(19) of the Act,

while not a negative factor, cannot, in these circumstances, be con-

sidered to be a positive factor. It should be pointed out that, on the

basis of a fraudulent passport, not only was the applicant able to

travel to Canada, but he also was ultimately able to obtain physical

presence in that country. Through this mechanism, he also was

able to arrive at our border. Further, in order to obtain admission

into the United States, the applicant initially provided a false

name and used a smuggler.

We are sympathetic with the circumstances surrounding the ap-

plicant's separation from his parents, sister, and brother and with

the applicant's desire to be reunited with them. We note that the

applicant has not seen his mother, sister, and brother since he was

Interim Decision #3001

19, more than 5 years ago. With the exception of approximately 1

hour after his hearing, the applicant has not seen his father since

he was 20, more than 4 years ago. Specifically, the applicant has

not seen his father since the unsuccessful attempt to get the appli-

cant out of Iran and reunited with his immediate family. Further,

the applicant's father has resided in the United States since De-

cember 31, 1981, while the applicant's mother, brother, and sister

have resided in the United States since 1980. Notwithstanding the

presence of family members in the United States, including a

lawful permanent resident uncle, however, none of the applicant's

immediate family has been accorded status as a United States citi-

zen or lawful permanent resident. It appears that each member of

the applicant's immediate family is an asylum applicant.

Considering all of the circumstances in these proceedings, includ-

ing the physical presence of immediate family members in the

United States whose asylum applications are as yet unadjudicated,

as well as the applicant's deliberate avoidance of prescribed refu-

gee procedures, we are unable to conclude that the applicant has

established sufficient equities to outweigh the negative factors in

the record.

One additional matter must be addressed.. In view of the appli-

cant's physical presence in Canada, the immigration judge found

that it was unnecessary to adjudicate the application for withhold-

ing of deportation. We do not agree.

The fact that the applicant in these proceedings is physically out-

side the United States is not determinative. Legally, all aliens in

exclusion proceedings are considered to be physically outside this

country. See generally Landon v. Plasencia, 459 U.S. 21 (1932).

Under the regulations, asylum requests shall also be considered as

requests for withholding exclusion or deportation. pursuant to sec-

tion 243(h) of the Act. 8 C.F.R. § 208.3(b) (1985). This provision is

mandatory. It does not permit the immigration judge or the Board

to ignore an application for withholding of deportation properly

filed on Form 1-589. See generally Matter of Dea, 18 I&N Dec. 269

(B1A 1982). Further, the application may be made either in exclu-

sion or in deportation proceedings. See 8 C.F.R. §§ 208.3(b), 208.9,

208.10, 208.11 (1985). The record reflects that the applicant has

properly filed a request for asylum and, concomitantly, a request

for withholding of deportation, on Form 1-589.

We have held that the well-founded-fear standard for asylum and

the clear-probability standard for withholding of deportation are

not meaningfully different and, in practical application, converge.

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); see Sankar v. INS,

757 F.2d 532 (3d Cir. 1985); Rejaie v. INS, 691 F.2d 139 (3d Cir.

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Interim Decision #3001

1982); Matter of Salim, supra; see also Matter of Larn, 18 I&N Dec.

15 (BIA 1981). But see Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th

Cir. 1985); Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984)

(well-founded-fear standard more generous than the clear-probabili-

ty standard); Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA

1985) (adopting the Cardoza-Fonseca standard in cases within the

jurisdiction of the United States Court of Appeals for the Ninth

Circuit). The applicant has established a well-founded fear of perse-

cution. On the record before us, we conclude that the applicant

similarly has established that his life or freedom will be threatened

for one or more of the grounds specified in the Act. We further con-

clude that his application for withholding of deportation to Iran

must be granted.

Accordingly, the appeal will be dismissed. However, the appli-

cant's application for withholding of deportation to Iran will be

granted.

ORDER: The appeal is dismissed.

FURTHER ORDER: The applicant's deportation to Iran is

temporarily withheld as provided by section 243(h) of the Act.

317