LAM

Interim Decision #2857

MATTER OF LAM

In Deportation Proceedings

A-16032555

Decided by Board March 24, 1981

(I) An alien may qualify for asylum under the Refugee Act of 1980 if he establishes that he

is a "refugee'? within the meaning of section 101(a)(42)(A) of the Immigration and Na-

tionality Act, 8 U.S.C. 1101(a)(42)(A), that is, that he has a well-founded fear of persecu-

tion in the country of his nationality, or the country where he last resided, on account of

race, religion, nationality, membership in a particular social group, or political opinion.

(2) Where a finding has been made that an alien's life or freedom would be threatened in a

given country, and that his deportation to that country should thus be withheld under

section 243(h) of the Act, 8 U.S.C. 1253(h), then it should also be found that this

alien has a well-founded fear of persecution in that country for asylum purposes.

(3) An alien granted asylum may, after one year, apply under section 209, 8 U.S.C. 1159,

for adjustment of status, but an alien who has been granted withholding of deportation

has no such means for becoming a permanent resident.

(4) "Firm resettlement," although not specifically provided for in the statutes prior to the

1980 Refugee Act, is a concept which has long been part of our laws relating to refugees.

See Rosenberg v. Yee Chien Woo, 402 U.S. 49 (1971).

(5) An important distinction between withholding of deportation and asylum is that the

concept of firm resettlement is not relevant to section 243(h) applications, as a grant of

that relief bars deportation to only a single country, while finn resettlement is crucial to

asylum applications, as asylum in the 'United States will not even be granted if an alien

has been firmly resettled in a third place.

(6) Where the evidence of firm resettlement in Hong Kong is, ambiguous, in view of the

births of the alien's children in the People's Republic of China subsequent to his flight

from that country to Hong Kong, and where the question of firm resettlement was not

reached at the hearing below, the recordjs remanded to the immigration judge to enable

the parties to present evidence on that issue.

(7) The fear of a Communist takeover of Hong Kong is purely speculative, and where this

was the only basis for the respondent's withholding application as to Hong Kong, with-

holding from that place was properly denied.

Ch ans:

Order: Act of 1952—Sec. 241(a)(2)18 U.S.C. 125101(2)1—Nonimmigrant—remained longer

than permitted

Oh BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:

Jules Coven, Esquire Gerald S. Hurwitz

Lebenkoff and Coven Appellate Trial Attorney

One East 42nd Street

New York, New York 10017

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Interim Decision #2857

Br: Milhollan, Chairman; Maniatis, and Maguire, Board Members. Concurring and Dis-

senting Opinion: Appleman, Board Member

In a decision dated September 24, 1979, an immigration judge found

the respondent deportable as charged, granted his application for with-

holding of deportation from the People's Republic of China, pursuant to

section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h),

denied a 243(h) application from Hong Kong, and denied asylum. The

respondent's application for voluntary departure was also denied, and

he was ordered deported to Hong Kong.' This appeal followed. Oral

argument was heard before the Board on December 2, 1980. The record

will be remanded.

The respondent is a 41-year-old native of the People's Republic of

China, born in Foochow, China. According to his 1-589 "Request for

Asylum in the United States," he "fled from the Mainland of China to

Macau and entered Hong Kong secretly in 1961." The application fur-

ther reflects that his wife was born in and still lives in Foochow, China,

and four children, born in 1960, 1964, 1966, and 1969, all were born in

and now live in Foochow. The respondent entered the United States'on

June 15, 1974, as a nonimmigrant crewman, with a gong Kong seaman's

book. He was authorized to remain in this country until his vessel

departed, but in any event no longer than 29 diys. An Order to Show

Cause was issued against the respondent on June 20, 1977, charging him

with deportability as an overstay under section 241(a)(2) of the Act, 8

U.S.C. 1251(a)(2).

At a deportation hearing held on September 21, 1979, the respondent,

through counsel, admitted the allegations in the Order to Show Cause.

He was found deportable based on these admissions. He declined to

designate a country of deportation. The immigration judge named the

People's Republic of China as the country of deportation, and the trial

attorney for the Immigration and Naturalization Service designated

Hong Kong. The respondent thereupon applied for withholding of

deportation and for asylum. The Service did not oppose withholding of

deportation from the People's Republic, and withholding from that coun-

try wan accordingly granted by the immigration judge. 2 However, the

' The immigration judge's first order was an order of deportation to the People's Repub-

lic of China, the respondent's place of birth. However, as withholding from that country

was granted, the effective order of deportation was to Hong Kong.

2 We have been informed by the Service that the government will now attempt to

deport aliens to the People's Republic of China, and that applications for withholding of

deportation from that country should not, under Service policy, be conceded by the

Service trial attorneys. A grant of section 243dd relief is merely a stay of deportation.

Should substantial changes occur in the country from which such relief is granted, or if, for

other reasons, the grant should need to be reevaluated, the Service can move for reopening.

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Interim Decision #2857

immigratipn judge found no clear probability of persecution in Hong

Kong, so he denied withholding from that place. The immigration judge's

orders further reflect that the requests for political asylum as to both

the People's Republic and Hong Kong were denied. The decision does

not discuss the asylum applications, however.

By granting the respondent's application for withholding of deporta-

tion from the People's Republic of China, the immigration judge acknowl-

edged that the respondent's "life" or freedom would be threatened in

such country on account of race, religion, nationality, membership in a

particular social group, or political opinion." Section 243(h)(1) of the

Act, as amended by the Refugee Act of 1980. His application for asylum,

for the same country, is therefore given stature as based on an apparent

well-founded fear of persecution. The immigration judge's failure to set

forth the reasons for denying asylum in this case leaves the Board

without guidance as to his findings and makes even more essential our

own careful analysis of the record. See Dolenz v. Shaughneley, 206

F2d 892 (2 Or. 1953).

An alien may qualify for asylum under the Refugee Act of 1980 if it is

determined that he is a "refugee" within the meaning of section

101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)

(42)(A). That section defines a refugee as

any person who is outside any country of such person's nationality or, in the case of a

person having no nationality, is outside any country in which such perton last habitually

resided, and who is unable or unwillingto return to, and is unable or unwilling to avail

himself or herself of the protection ot 'hat

• 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.

Thus, as a first step in establishing eligibility for relief, an alien must

show persecution on account of one or,more of these same five reasons,

whether he is applying for asylum or for withholding. 3 We note also that

the form used to apply for asylum, the 1-589, is often used for withhold-

ing applications as well. Moreover, the regulations provide that asylum

requests made after the institution of exclusion or deportation proceed-

ings "shall be considered as requests for withholding . ." 8 C.F.R.

A more change of "policy," however, unsupported by a statement of reasons or supporting

evidence, would not ordinarily warrant ieopening. Were it not for other considerations,

reopening of this case would not be warranted.

Although section 243(h) was amended by the Refugee Act to Substitute "life or free-

dom would be threatened" for "persecution," we have, after -examining the legislative

history of the new Act, held that this broader choice of words hi the Refugee Act was not

intended to change the prior law requiring persecution by the government in the country

to which the alien is returnable (or persecution at the hands of an organization or person

from which the government cannot or will not protect the alien). See M fter'of

17 I&N Dec. 542 (BIA 1980). Similarly, we do not believe that the use of We wor d

"persecution" in section 101(a)(42)(A), instead of "life or freedom would be threatened," as

in section 243(h), is a significant distinction between withholding of deportation and asylum.

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Interim Decision #2857

208.3(b) (effective June 1, 1980). Given these considerations, we hold

that where a finding has been made that an alien's life or freedom would

be threatened in a given country, and that his deportation to that coun-

try should thus be withheld, then it should also be found that this alien

has a well-founded fear of persecution in that country for asylum

purposes.

This holding, however, does not mean that any alien who has been

granted 243(h) relief will also be granted asylum. Despite the similari-

ties between these two forms of relief, and despite the fact that the two

terms have often been used interchangeably, there remain some differ-

ences between asylum and withholding of deportation.' For example, an

alien granted asylum may after 1 year apply for adjustment of status

under section 209 of the Immigration and Nationality Act, 8 U.S.C.

1159, whereas an alien who has only been granted withholding of depor-

tation has no such means available for becoming a permanent resident.

A distinction which is very important in the present case is the fact

that the concept of firm resettlement is a crucial issue with regard to

asylum applications, but is not relevant to 24:3(h) applications. This is so

because withholding of deportation is country-specific, barring deporta-

tion only to a single place.' Thus, if theie is any other place to which an

alien may he deported under section 243(a), such deportation may be

effected without regard to whether or not he may have resettled in that

other place. Asylum will not even be granted, however, where the alien

has been firmly resettled in a third place.

A showing that an alien will be persecuted in a given country will not

necessarily result in his being granted asylum. There are several rea-

sons why an alien with a valid persecution claim might be denied asylum.

Asylum could be denied if the alien comes within one of the undesirable

groups described in section 243(h)(2) and 8 C.F.R. 208.8(0(1)(iii)-(vi).

4 Prior to May 1979, neither immigration judges nor this Board were required to address

asylum claims, as jurisdiction to adjudicate asylum applications then lay exclusively with

the District Directors. Previously, then, we were not called upon to discuss the differ.

ences between asylum and 243(h) relief: we needed only to concern ourselves with applica-

tions for withholding of deportation. Effective May 19, 1979, however, the regulations

gave authority to immigration judges and this Board to consider asylum applications made

after the commencement or completion of deportation proceedings. See 8 C.F.H. 108.3.

Interim regulations promulgated pursuant to the Refugee Act of 1980 similarly provide

that asylum applications made after the institution of exclusion or deportation proceedings

shall be considered by immigration judges. See 8 C.F.R. 208.3(h) (effective June 1, 1980).

As we have only quite recently acquired jurisdiction over asylum claims, we are only just

now beginning to resolve some of the Problems caused by this addition to our jurisdiction,

including the problem of determining exactly how withholding of deportation and asylum

are to fit together.

6 Section 245(h)(1) provides that an alien shall not be deported or returned "to a country

if the Attorney General determines that such alien's life or freedom would be threatened

in such country . ." (Emphasis added.)

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Interim Decision #2857

Or, as referred to above, an alien can be denied asylum if he has been

firmly resettled in another country. ,See section 207(c)(1) of the Act; 8

C. F.R. 20$.8(0(1)(ii); 8 C.F. R. 208.14.

"Firm resettlement," although, not specifically provided for in the

statutes prior to the 1980 Refugee Act, is a concept which has long been

part of our laws relating to refugees. The predecessor statute, for

instance, section 203(a)(7), 8 U.S.C. 1153(a)(7) (repealed by section

203(e)(3) of the Refugee Act), failed to specifically mention the "firmly

resettled" concept. The Supreme Court, however, when faced with the

issue, found that this was a proper factor to consider in determining

whether an alien was fleeing persecution and entitled to refugee status

under section 203(a)(7). The Court noted that the doctrine of firm reset-

tlement was inherent in the "central theme of 23 years of refugee

legislation—the creation of a haven for the world's homeless people."

Rosenberg v. Yee Chien Woo, 402 U.S. 49, 55 (1971). See also Chinese

American Civic Council v. Attorney General of United States, 566

F.2d 321, 325 (D.C. Cir. 1977); Shen v. Esperdy, 428 F.2d 293 (2 Cir.

197(1); Kai Fung Chan v. Kiley, 454 F.Supp. 34 (S.D.N. Y. 1978). Thus,

the inclusion in the new legislation of the firm resettlement doctrine is

consistent with past recognition of the doctrine and its importance.

The question remaining, then, is whether the respondent in the pres-

ent case has been firmly resettled in Hong Kong. The regulations give

some guidance in this area.' However, the question of firm resettlement

is one of fact. The respondent has requested reopening so that he may

litigate this issue before the immigration judge. His request has not

been accompanied by any substantial offer of proof. However, despite

his flight to Hong Kong in 1961 and his possession of a Hong Kong

crewman book, his children were not born there, but were born in

Mainland China, and his wile appears not to have joined him in 'Hong

Kong. Thus, we are unable on the record before us to determine whether

or not he has been firmly resettled in Hong Kong. The issue does not

appear to have been reached at the hearing below. A remand is there-

fore necessary to enable the respondent and the Service to present

evidence on the question of fret resettlement. In addition to the guide-

lines provided by the regulations relating to the , 1980 Refugee Act,

there is a considerable body of case law regarding firm resettlement

under previous statutes, which should be of some help in reaching a

decision on this issue.

The applicable regulations provide:

A refugee is considered to be "firmly resettled" if he has been offered resident status,

citizenship. or some other type of permanent resettlement by another nation and has

traveled to and entered that nation as a consequence of his flight from persecution,

unless the refugee establishes, to the satisfaction of the United States Government

officer reviewing the case, that the conditions of his residence in that nation have been

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Interim Decision #2857

We note for the record that the immigration judge's denial of withhold-

ing of deportation from Hong Kong was correct. The respondent has

appareiatly lived there off and on for a number of years, and there is

nothing to show that he was ever in any way persecuted in Hong Kong.

The respondent's asylum/withholding application reflects that he fears

returning to Hong Kong only because, "I am afraid Hong Kong will be

taken over by the Communists." This fear is purely speculative, and is

insufficient to warrant a grant of 243(h) relief as to Hong Kong. If,

therefore, it. is found that the respondent has been firmly resettled in

Hong Kong, there is nothing to prevent his return to that place.

For the reasons stated above, we will remand the record to the immi-

gration judge for further proceedings.

ORDER: The record is remanded to the immigration judge for

further proceedings consistent with the foregoing opinion.

CONCURRING AND DISSENTING OPINION: Irving A. Appleman, Board

Member

I dissent from that portion of the majority decision which holds that

where a finding has been made that an alien's life or freedom would be

threatened in a given country, so that deportation to that country should

be withheld, it automatically follows that the alien has established a

well-founded fear of persecution in that country for asylum purposes.

Experience has shown that with respect to deportation to Mainland

China (PRC), it has been common practice for the Service to concede

"persecution" under section 243(h) for purposes of disposing of a case,

because the Government had neither the ability nor the intention at the

time to deport to the People's Republic of China. See footnote 2, majority,

this case; see also Matter of Funs, 17 I&N Dec. 354 (BIA 1980). This is

precisely what happened in this case. There was no exposition or explo-

ration whatsoever of the facts bearing on the relief. Under these

circumstances, I would not give the finding of persecution the conclu-

sive effect on this aspect of the asylum application it was accorded by

the majority. While it obviously is entitled to some weight, it is conceiv-

so substantially and consciously restricted by the authorities of that country that he has

not in fact been resettled. In making this determination, the officer shall consider, in

light of the conditions under which, other residents of the country live, the type of

housing, whether permanent or temporary, made available to the refugee, the types

and extent of employment available to the refugee. and the extent to which the refugee

has received permission to hold property and to enjoy other rights and privileges(such

as travel documentation, education, public relief, or naturalization) available to others

resident in the country. S C.F.R. 207.1(b). See also 8 C.F.R. 208.14 (effective June 1,

1980).

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Interim Decision #2857

able that in another case, the evidence may clearly show the finding to

have been unwarranted.

With respect to resettlement, if the record in a case were reasonably

clear, I would not be disposed to remand solely for evidence on this

issue, in the absence of at least an offer of proof of a useful purpose to be

served by such a remand. However, if this respondent's children were

born in Mainland China as a result of his visits there, it not only raises a

question as to the reality of the threat to his life or freedom in the

People's Republic of China, but also whether he was firmly settled in

Hong Kong despite residence since 1961. Because of the obvious ambigu-

ities of the record, I am willing to go along with the remand in this case.

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