SALIM

Interim Decision #2922

MATTER OF SALIM

In Exclusion Proceedings

A-26110301

Decided by Board September 29, 1982

(1) Asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. 1158,

denied as a matter of discretion to excludable alien who arrived in the United States

with a fraudulent passport, despite grant of temporary withholding of deportation

to Afghanistan pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h). Under the

Refugee Act of 1980, 243(h) relief to eligible aliens is mandatory, but asylum is dis-

cretionary_

(2) The applicant's deportation to Afghanistan is temporarily withheld pursuant to sec-

tion 243(h) because that country is one of the countries to which the applicant may

now be deported pursuant to section 237(a) of the Act, 8 U.S. C. 1227(a), as amended

by the Immigration and Nationality Act Amendments of 1981. Deportation to Pakistan

is not withheld because 243(h) relief is "country specific" and no likelihood of perse-

cution in Pakistan has been established.

(3) Applicant sufficiently established that he may be singled out for persecution in his

native Afghanistan for opposing the ongoing Russian invasion and refusing to join

the Soviet. controlled Afghan army in its war against the Afghan rebels opposing the

invasion. State Department Bureau of Human Rights and Humanitarian Affairs (BHRHA)

.opinion supporting the alien's persecution claim given significant weight.

(4) In close persecution cases such as those in which the State Department BHRHA agrees

with the applicant's fears of persecution, the immigration judge should ordinarily con-

sider the discretion aspects of the asylum application to avoid a remand solely on that

issue.

EXCLUDABLE:

Order. Act of 1952—Sec. 212(a)(19)[8 U.S.C. 1182(a)(19)1—Entered the United States

by fraud or by willfully misrepresenting a material fact

Sec. 212(a)(20) [8 U.S.C. 1182(0(20)1—Not in possesion of a valid

unexpired visa or other valid entry document

ON BEHALF OF APPLICANT: ON BEHALF F SERVICE:

Barbara A.. Nelson, Esquire Joanna London

do Arthur Pollack, Esquire Acting Appellate

225 Broadway Trial Attorney

New York„ New York 10007

BY: Milhollan, Chairman, Maniatis, Dunne, and Morris, Board Members. Concurring

and Dissenting Opininn, VA C(72.-

all

Interim Decision #2922

The applicant appeals from the March 24, 1982, decision of the immi-

gration judge denying his applications for asylum pursuant to section

208 of the Immigration and Nationality Act, 8 U. S. C. 1158, and tempo-

rary withholding of deportation pursuant to section 243(h) of the Act, 8

U.S.C. 1253(h). The appeal will be sustained in part and dismissed in

part. The immigration judge's decision will be modified so as to deny the

application for political asylum as a matter of discretion but grant the

application for temporary with holding of deportation to Afghanistan.

The applicant's excludability under section 212(aX19) and 212(a)(24) of

the Act, 8 U.S.C. 1182(a)(19) and 1182(a)(20), is not at issue and was

conceded at the exclusion hearing on March 24, 1982 (Tr. p. 1). The

applicant arrived in the United States from Pakistan on February . 18,

1982, with someone else's passport which he had fraudulently purchased

in order to obtain a visa as a nonimmigrant visitor for business. See

section 101(a)(15)(B)(1), 8 U. S.C. 1101(a)(15)(BX1). He appeals from the

immigration judge's conclusion that he had not established the requisite

well-founded fear of persecution in his native Afghanistan' and there-

fore was ineligible for asylum and temporary withholding of deportation_

The immigration judge reached that conclusion despite a State Depart-

ment of Bureau of Human Rights and Humanitarian Affairs (BHRHA)

advisory opinion dated March 12, 1982, that the applicant had estab-

lished a well-founded fear of persecution in his native country (Ex.. 4).

We agree with the applicant that he has established the requisite

probability of persecution in Afghanistan. 2 The applicant contended that

he had been a member of the 1VIuja.hidin rebels in Kandahar and that two

of his brothers have been arrested by the Soviet controlled Babrak

regime for similar membership. Another brother was taken by Russian

' Under section 7 of the Immigration and Nationality Act Amendments of 1881, Pub.

L. 97-116, 95 Stat. 1611 (Dec. 29, 1981),•Afghanistan is one of the countries to which the

applicant may be deported pursuant to section 237(a) of the Act, 8 U.S.C. 1227(a)_ The

previous language limited deportation to the "country whence he came," Pakistan.. The

applicable portions of the newly enacted section read us follows:

(1)Any alien . . . arriving in the United States who is excluded shall be ... deported .. .

to the country in which the alien boarded the . . . aircraft on which he arrived in the

United States . . . .

(2) If the government of the country designated in paragraph (1) will not accept the

alien into its territory, the alien's deportation shall be directed by the Attorney General,

in his discretion and without necessarily giving any priority or preference because of

their order as herein set forth, either to—

(A) the country of which the alien is a subject, citizen, or national;

(B) the country in which lie was born:.

(C)the country in which he has a residence; or

(D)any country.which is willing to accept the alien into its territory, if deporta-

tion to any of the foregoing countries is impracticable, inadvisable, or impossible.

2 We therefore do not leach the applicant's contentions regarding Stevie v. Sava, C78

F.2d 401 (2 Cir. 1982); Cf. Matter of Dunar, 14 I&N Dec. 310 (BIA 1973).

312.

Interim Decision #2922

troops at Kandahar, and the applicant does not know his whereabouts or

whether he is still alive (Ex:. 3). The immediate reason for his fleeing

Afghanistan was that he refused to join the Soviet controlled Afghan

army in its war against Afghan rebels presently fighting against the

Soviet invasion (Tr. p. 3).

The State Department BHRHA conclusion that the applicant would

be persecuted is consistent with its report on Afghanistan in the 1981

Country Reports on Human-RightsPractices at 929, 931, Joint Commit-

tees of the Senate and House of Representatives, 97th Congress, 1st

Session (1981). 3 The report emphasizes that due to mass desertion by

Afghan soldiers who refuse to fight under Soviet command against their

compatriots, the army resorts to dragooning and forcibly impressing

into its forces men and boys as replacements. This clearly differs from

persecution claims by aliens who merely seek to avoid military service

in their country. See Komzc v. INS, 407 F.2d 102 (9 Cir. 1969). Under

the facts of this case, we attach significant weight to the State Depart-

ment's conclusion that this applicant would be persecuted if returned to

Afghanistan. Consequently, we conclude that. the applicant has estab-

lished a well-founded fear of persecution despite the immigration judge's

conclusion to the contrary. The immigration judge's specific finding that

the applicant left Afghanistan for mere economic reasons (i.j. dec. p. 3)

apparently stemmed from a misunderstanding of the applicant's testi-

mony that he came to the United States seeking employment (Tr. p. 7).

That statement was a repetition of his immediately preceding testimony

that he left Pakistan because he could not support his family left behind

in Afghanistan, while unemployed in Pakistan (Tr. p. 6). It was not an

explanation of why he left Afghanistan.

Having concluded that the applicant established the requisite likeli-

hood of persecution, a grant of temporary withholding of deportation to

Afghanistan is required in this case pursuant to section 243(h) of the Act

as amended by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.

162 (March 17, 1980). That section now specifies that "the Attorney

General shallnot deport or return any alien . . . to a country if the Attor-

ney General determines that such alien's life or freedom would be threat-

ened on account of . . . political opinion." Under section 243(h) as drafted

prior to the 1980 Amendment such relief was discretionary. 4

' A State Department BHRHA opinion supporting an alien's contention that he will be

persecuted in his native country should be given significant weight, particularly where

supporting evidence and testimony supports such a conclusion. See Matter of Saban,

18 I&N Dec. 70 (BIA 1981); Matter of Francois, 15 HEN Dec. 534 (BIA 1975).

4 The previous language of section 243(h) read: "the Attorney General is authorized to

withhold deportation." The case before us does not involve any issue of ineligibility for

relief under the grounds set forth in section 243(h)(2). Moreover, this applicant is not

deportable under the provision of section 241(a)(19) of the Act.

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Interim Decision #2922

We next address the question of asylum which section 208(a) of the

Act provides is discretionary in nature. It specifically states that an

alien applicant "may be granted asylum in the discretion of the Attor-

ney General if the Attorney General determines that such alien is a

refugee within the, eaning of section 101(a)(42)(A) of the Act, 8 U.S.C.

1101(a)(42)(A)." (Emphasis supplied.) Once it is determined that the

requisite probability of 'persecution has been established for section

243(h) relief, such a conclusion is also binding on the issue of persecution

for purposes of asylum under section 208 of the Act. Matter of Lam,

18 I&N Dec. 15 (BIA 1981). Therefore, the applicant's statutory eligi-

bility for asylum has been established. However, the Service contends

that the application for political asylum in the United States should be

denied as a matter of discretion due to the circumstances of his arrival in

the United States with a fraudulently purchased passport bearing some-

one else's name. Similarly, the State DepartmentBHRHArecommended

in its advisory letter that the asylum application be denied for policy

considerations since the applicant misused our immigration laws to gain

an advantage over all other similarly situated Afghan refugees in Paki-

stan who are following the established procedures for legally immigrat-

ing to the United States.

This Board has not previously considered the exercise of discretion in

asylum cases where it was found that the alien would be persecuted if

returned to his native country. Until May 1979 neither immigration

judges nor this Board addressed asylum claims, as jurisdiction to adjudi-

cate asylum applications then lay exclusively with the District Directors.

The immigration judges and this Board only had jurisdiction to consider

applications for withholding of deportation under section 243(h). Effec-

tive May 19, 1979, however, the regulations gave authority to immigra-

tion judges and this Board to consider asylum applications made after

the commencement or completion of deportation proceedings. See 8

C.F.R. 108.3. Interim regulations promulgated pursuant to the Refu-

gee Act of 1980 similarly provide that asylum applications made after

the institution of exclusion or deportation proceedings shall be consid-

ered by immigration judges. See 8 C.F.R. 208.3(b) (effective June 1,

1980). In view of this Board's recent acquisition of jurisdiction over

asylum claims and the revision of the laws in this area in 1980, many

issues raised before the Board relating to asylum are issues of first

impression.

The language in section 208(a) specifying the discretionary nature of

asylum relief is clear, and since that section was enacted subsequent to

the 1967 Protocol it controls over any conflicting language in the proto-

col under the applicable rules of statutory interpretation. Consequently, .

under the present statute an otherwise eligibles alien whom the Attor

Aliens who persecuted others abroad and specified classes of criminals are precluded

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Interim Decision #2922

ney General determines that his life or freedom would be threatened in

his native country on account of race, religion, nationality, membership

in a particular social group, or political opinion is entitled to 243(h) relief

and may also be granted asylum relief, but only as a matter of discretion.

Section 243(h) relief is "country specific" and accordingly, the appli-

cant here would be presently protected from deportation to Afghanistan

pursuant to section 243(h). But that section would not prevent his exclu-

sion and deportation to Pakistan or any other hoipitable country under

section 237(a) if that country will accept him.'' In contrast, asylum is a

greater form of relief. When granted asylum the alien may be eligible to

apply for adjustment of status to that of a lawful permanent resident

pursuant to section 209 of the Act, 8 U.S.C. 1159, after residing here

one year, subject to numerical limitations and the applicable regulations.

See 8 C.F.R. 209. Considering this relationship between asylum and

243(h) relief, we now examine the discretionary factors in this case.

Ai stated above, the Board had never before considered a discretion-

ary denial of asylum relief. However, the lack of direct precedents does

not mean that useful guidelines are unavailable. For example, 8 G.F.R.

208.8(f)(1) precludes the District Director from granting asylum relief to

specific classes of applicants, and 8 C.F.R. 208.8(f)(2) states that the

District Director shall consider- all relevant factors such as whether an

outstanding offer of resettlement is available to the applicant in a third

country and the public interest involved in the specific case. The

regulations, in essence, summarize the specific preclusion in the Act

against aliens who persecuted others abroad with this Board's and the

judicially developed principles for the exercise of discretionary relief

from deportation. See Rosenberg v. Woo, 402 U.S. 49 (1971). Although

those regulations are addressed to the District Director and are not

binding on this Board, we consider them as useful guidelines in the

exercise of discretion over asylum requests.

Attempting entry into the United States by way of fraudulently

obtained documentation has consistently been considered a strong nega-

tive discretionary factor. See &Wand v. INS, 669 F.2d 1157 (6 Cir.

1982). This applicant is excludable under section 212(a)(19) of the Act.

We note that section 212(a)(19) excludability would require a waiver

pursuant to section 209(c), 8 U.S.C. 1159(c), for refugee. adjustment of

status cases.' Finally, as the Service and the State Department letter

from obtaining 243(h) relief. See Matter of Rodriguez-Palma, 17 I&N Dec..465 (BIA

1980); Matter of Martinez-Rivera, 18 1&N Dec. 75 (BIA 1981); Matter of Sangster-

Garcia, 17 I&N Dec. 592 (BIA 1980); Compare, Matter of Frentescu, 18 I&N Dec. 244

(BIA 1982).

3eutiun 237(a). See note 1 above.

' Under the terms of section 209(c), the provisions of sections 212(a)(14), (15), (20), (21),

(25), and (32), do not apply to an alien seeking adjustment of status under section 209. The

315

Interim Decision #2922

suggested, the public interest requires that we do not condone this

applicant's attempt to circumvent the orderly procedures that our gov-

ernment has provided for refugees to immigrate lawfully. The fraudu-

lent passport was obtained after the applicant had escaped from

Afghanistan, with ,the sole purpose of reaching this country ahead of all

the other refugees awaiting their turn abroad. This is not the case

where an alien was forced to resort to fraudulently obtained documenta-

tion in order to escape or prevent being returned to the country in which

he fears persecution. See Matter of Mg, 17- I&N Dec. 536 (BIA 1980).

This Board fmds that the fraudulent avoidance of the orderly refugee

procedures that this country has established is an extremely adverse

factor which can only be overcome with the most unusual showing of

countervailing equities. This case before us does not present such

equities. Consequently, the application for asylum relief will be denied

as a matter of discretion.

A final issue remains in this case. At oral argument counsel for this

applicant argues that if asylum is denied as a matter of discretion on the

basis of the record before us, a remand for a further finding on the

discretionary issue should be ordered. He contends that the applicant

has been cooperating with United States authorities combating the grow-

ing use of the subterfuge of obtaining fraudulent passports to improp-

erly obtain nonimmigrant visas abroad, fly into the United States and

file asylum applications.

First, we note that no evidence has been offered to that effect. No

government official recommends that his alleged cooperation be consid-

ered favorably in this asylum application so as to overcome the heavily

negative factors in this case. .In any event, attempting to enter the

United States by using fraudulent documents is a felony pursuant to 18

U.S.C. 1546. By cooperating with United States authorities in their

investigation this alien might gain clemency from such authorities and

avoid prosecution. More importantly, even if we accept the representa-

tion in this regard as true, such cooperation is not a sufficient significant

factor to warrant granting asylum relief as a matter of discretion in this

case. The motion to remand • will accordingly be denied.

We finally note that the record of unfavorable discretionary factors

was unusually well documented in this case, and therefore, sufficiently

ripe for our review. In close persecution cases, however, such as those

in which the State Department BHRHA agrees with an applicant's

fears of persecution, the immigration judge should ordinarily consider

Attorney General "may waive any other provision of such section (other than paragraphs

• (27), (29), or (33) and other than so much of paragraph (23) as relates to trafficking in

narcotics) with respect to such an alien for humanitarian purposes, to assure family unity,

or when it is otherwise in the public interest." (Emphasis added).

316

Interim Decision #2922

the discretion aspects of the asylum case to avoid a remand solely on

that

ORDER: The appeal from the denial of asylum relief will be dis-

missed, the appeal from the denial of 243(h) relief to Afghanistan will

be sustained and the motion to remand denied.

FURTHER ORDER: The applicant is excluded and deported to

Pakistan.

FURTHER ORDER: The applicant's deportation to Afghanistan

pursuant to sections 237(a)(2XA) and (B) if the government of Pakistan

refuses to accept his deportation to that country pursuant to section

237(a)(1), will be temporarily withheld as provided by section 243(h) of

the Act.

CONCURRING AND DISSENTING OPINION: Fr,ed W. Vacca, Board Member

I respectfully concur in part and dissent in part.

The immigration judge found the applicant excludable under section

212(a)(19) and (20) of the Immigration and Nationality Act, 8 U.S.C.

1182(a)(19) and (20), as an immigrant who procured his visa by fraud and

who was not in possession of a valid unexpired visa or other necessary

documents at the time of his application for admission to the United

States. The applicant applied for asylum under section 208 of the Act, 8

U.S.C. 1158, and withholding of deportation under section 243(h) of the

Act, 8 U.S.C; 1253(h). The immigration judge denied his applications.

The applicant appealed. In its decision, the majority of the members of

the Board of Immigration Appeals dismiss ed the appeal from the denial

of asylum relief, sustained the appeal from the denial of withholding of

deportation, and denied the applicant's motion to remand the record of

proceedings. The majority ordered the applicant excluded and • deported

to Pakistan and further ordered that the applicant's deportation to

Afghanistan be temporarily withheld as provided in section 243(h) of the

Act. I concur in the conclusions of the majority that the applicant is

excludable as charged, that his asylum application should be denied and

that his motion to remand should be denied.. However, I do not agree

that Cie applicant has met his burden of establishing statutory eligibility

for withholding of deportation and believe that the majority erred by

granting that relief. •

The record reveals that the applicant is a 27—year-old native and citi-

zen of Afghanistan who entered PakiStan in Jannary.of 1982 and resided •

there for less. than:one month.. The applicant •departed Pakistan. and

arrived: in the United States on February 18; .1982.. In support, of.his

applications •fort asylum and withholding. of deportation, the applicant

testified at his hearing that he left Afghanistan because he is an. anti-

317

Interim Decision #2922

communist and feared that the existing government would incarcerate

or otherwise harm him because he refused to join the government's

army. He further testified that he belonged to a rebel organization in

Afghanistan known as the "Mujahidin" and that he aided that organiza-

tion by distributing leaflets and papers. The applicant related that two

of his brothers were employed by the previous regime in Afghanistan,

that they opposed the present regime, and that because of that opposi-

tion they were imprisoned by that government. The applicant also stated

that another brother went into the Russian Army, that he has not heard

from him since that time, and that he does not know the whereabouts of

that brothernhe applicant testified that he left his family in Afghani-

stan when he went to Pakistan. He also stated that he departed Paid-

stan for the United States because he did not desire to live in Pakistan,

that there was nothing for him to do there, and that he did not have

enough money to buy land in Pakistan. Apart from his testimony, and

his written application for asylum, the applicant offered no other evi-

dence to support his claim.

A letter from the Bureau of Human Rights and Humanitarian Affairs,

Department of State, dated March 12, 1982, is of record. That letter

which was written at the request of the Immigration and Naturalization

Service informs the reader that since the 1979 Soviet invasion of

Afghanistan, more than three million Afghans fled into neighboring

countries where they have obtained temporary refuge. The State Depart-

ment letter contains no specific information relating to the applicant or

his activities in Afghanistan. It did contain the opinion that the appli-

cant has established a well-founded fear of persecution in Afghanistan.

However, it is clear from a reading of the letter that this opinion was

predicated upon the assumption that the information provided by the

applicant in his application for asylum (Form 1-589) is true. It does not

appear that the opinion was based on specific, independent information

known to the Department of State.

An applicant for asylum or withholding of deportation must show

that, if deported, he would likely be subject to persecution based on his

race, religion, nationality, membership in a particular social group, or

political opinion. Section 208(a) of the Act. See section 243(h) of the Act;

Matter of McMullen, 17 I&N Dee. 542 (BIA 1980), reed on other

grounds, 658 F.2d 1312 (9 Cir. 1981). An undocumented assertion or an

apprehension which is purely subjective is not sufficient to support a

persecution claim under the statute. An applicant must present objec-

tive evidence that he has a well-founded fear that he is likely to be

singled out for persecution by government officials in the country of

deportation. See McMullen v. INS, supra; Kashani v. INS, 547 F.2d

376 (7 Cir. 1977); Stevie v. Sava, 678 F.2d 491 Cir. 1982); Matter of

Chumpitazi, 16 I&N Dec. 629 (BIA 1978).

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Interim Decision #2922

Upon a review of this record, I find that the applicant has failed to

establish his persecution claim. The transcript of the mina , is of the

exclusion hearing shows that only the applicant testified. Apart from

the submission of his asylum application, no other documents were fur-

nished by the applicant in support of his claim. I find not a single item of

probative, objective evidence in the record to satisfactorily corroborate

the applicant's story. The applicant's testimony is that he is an anti-

communist, that he refused to join the Afghan army and that, for these

reasons, he believes he would be in danger from the present regime in

Afghanistan if returned to that country. The record, however, contains

no corroborative evidence of a particularized nature to establish that he

was politically active in Afghanistan, that he opposed the present gov-

ernment in that country or, for that matter, that he fled Afghanistan to

avoid service in the army.

, A letter of the Department of State relating to a persecution claim is

admissible into evidence in these proceedings. Pereira-Diaz v. INS, 551

F.2d 1149 (9 Cir. 1977); Matter of Francois, 15 I&N Dec. 534 (BIA

1075). However, such letters are advisory in nature and not binding on

the Board of Immigration Appeals. Matter of Exilus 18 I&N Dec. 276

(BIA 1982). The weight to be accorded an advisory opinion will be

determined by examining its probative quality. In this case, the advi-

sory opinion contains no particularized information concerning the ap-

plicant or his activities in Afghanistan. The letter is also devoid of

specific reasons for the opinion other than the expressed reliance on the

assumption that the applicant's story is true. In view of these circum-

stances, I find that the advisory opinion has little or no probative value

and, therefore, I choose not to rely upon it in my consideration of the

applicant's claim for withholding of deportation. The reliance of the

majority on the advisory opinion of the Department of State and the

1981 Country Reports on Human Rights Practices, Joint Committees of

the Senate and House of Representatives, 97th Congress, 1st Session

(1981)1 is, in my view, unwarranted in light of the generalized nature of

the opinion and the report and the fact that the applicant has offered

nothing more than a bare and unsubstantiated claim of persecution.

For the above reasons, I would find that the applicant has not met his

burden of proof and would deny his applications for asylum and withhold-

ing of deportation. Accordingly, I would dismiss his appeal and deny his

motion to remand the record of these proceedings.

' I note that the Country Reports on Human Rights Practices cited by the majority in

its decision do not identify the applicant or relate specifically to the applicant or his

activities in Afghanistan.

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