United States law gives the U.S. Attorney General, the Secretary of the Department of Homeland Security, and DHS officials1 the discretion to grant asylum to a person who meets the statutory definition of “refugee,” so long as that person meets other eligibility factors. As we mentioned in another post, refugee and asylee applicants bear the burden2 of proving they meet the definition and those factors. Future posts will discuss the nature of that burden.
The INA defines “refugee” as:
[A]ny 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 person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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.INA §101(a)(42)(A); 8 USC §1101(a)(42)(A)
This article describes the meaning of “nationality” and being “outside any country of [one’s] nationality” within the context of the statutory definition above.
To succeed in a claim for asylum, the applicant must show that she is outside her country of nationality and that her persecution claim originates from that country. If the applicant is stateless, she must indicate her country of last habitual residence.
“Nationality,” within the context of the INA, means a person’s citizenship or state of permanent allegiance. See INA §101(a)(21)/8 USC 1101(a)(21) (defining “national” as “a person owing permanent allegiance to a state”). The BIA looks at that INA definition when resolving questions over whether an applicant should be considered a national of a particular country. In one unpublished opinion, the BIA explained that “nationality” may further mean the applicant’s country of origin or usual place of abode. See Matter of Fatoumata Toure, No. A24 876 244, 1990 Immig. Rptr. LEXIS 1435, *17 (BIA June 26, 1990) (“[t]he Act’s use of the phrase ‘return to’ suggests that a country of nationality was contemplated as a country of origin, or at least the person’s usual place of abode”); see also Jon Bauer, Multiple Nationality and Refugees, 47 Vand. J. Transnat’l L. 905, 932 n. 105 (2014) (discussing Toure as one of the first cases where BIA opined on the dual citizenship issue in the asylum context).
Courts have defined “residence” as “the place of general abode, which is a person’s principal, actual dwelling in fact, without regard to intent.” Tesfamichael v. Gonzales, 469 F.3d 109, 115 (5th Cir. 2006) (citing 8 U.S.C. § 1101(a)(33)).
Nationality as a threshold question
Courts consider an applicant’s nationality as a vital threshold issue: If the immigration judge (IJ) or the Board of Immigration Appeals (BIA) fail to resolve questions concerning the applicant’s nationality, such failure can be grounds for a remand. See e.g., Wangchuck v. DHS, 448 F.3d 524, 528-29 (2d Cir. 2006) (remanding where the IJ failed to decide the asylum applicant’s country of nationality or last habitual residence, which the court considered a threshold issue); Kin Wan Tso v. United States Department of Justice, 251 F. App’x 51 (2d Cir. 2007) (remanding where the IJ and BIA both denied the applicant’s asylum claim without first addressing the issue of whether Hong Kong, where the applicant originated, is a country for purposes of deciding the claim); Thile v. Garland, 991 F.3d 328, 333 (1st Cir. 2021) (“[A] threshold determination to any decision on an asylum application is establishing the country of such person’s nationality or, for those without nationality, the country in which such person last habitually resided.”) (internal quotation marks removed). See also Matter of K–R–Y– and K–C–S–, 24 I&N Dec. 133 (BIA 2007) (describing how the United States Court of Appeals for the Ninth Circuit granted remand, which the U.S. Government sought, for the BIA to resolve whether former North Korean citizens who were then granted South Korean citizenship can still avail of asylum protections from persecution in North Korea).
Requirements for dual or multiple nationals
Most applicants for asylum should have no trouble identifying their country of nationality. But additional requirements may arise for applicants who hold dual or multiple nationalities. Specifically, an applicant who is a dual national or dual citizen bears the burden of establishing she is unable or unwilling to return to both countries of nationality because of persecution or a well-founded fear of persecution from both countries.
The BIA identified that rule in Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), where it held that an individual does not qualify as a refugee if she is a citizen of more than one country and cannot show persecution or the well-founded fear of persecution in one of those countries. The applicant in that case was a Venezuelan citizen who sought asylum protection after being attacked and threatened by pro-Chavez groups. See id. at 119. During the hearing, the IJ found the applicant was also a citizen of Spain, in addition to Venezuela, because of his father’s Spanish citizenship. Id. The applicant admitted he did not fear persecution in Spain. Id. The IJ decided the applicant did not qualify as a refugee. Id.
On review of the applicant’s appeal, the BIA recognized the INA did not specifically address the issue of dual nationality. Id. at 121. But the BIA noted the INA’s legislative history relied on the 1951 U.N. Convention, and the Convention’s art. 1(A)(2) stated:
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Based on that provision, the BIA concluded the applicant was not eligible for asylum since he had not “availed himself of the protection of” Spain.
North Korean citizens
The requirement of proving persecution or fear of persecution from all countries of one’s nationality do not apply to North Korean applicants who might have a claim to South Korean citizenship. In enacting the North Korean Human Rights Act, Congress clarified that asylum applicants from North Korea remain eligible for asylum despite “any legal right to citizenship they may enjoy” in South Korea. See North Korean Human Rights Act of 2004, Pub. L. No. 108-333, §302(a), 118 Stat. 1287. But if a North Korean citizen avails herself of that legal right and becomes a South Korean citizen, she may lose eligibility for U.S. asylum. See Matter of K–R–Y– and K–C–S–, 24 I&N Dec. 133 (BIA 2007) (finding that natives of North Korea, who became citizens of South Korea, could not establish eligibility for asylum because of their firm resettlement in South Korea).
Citizens of European Union (EU) states who might qualify for citizenship in other EU states likely do not have to demonstrate persecution or a well-founded fear of persecution in those other states to be eligible for U.S. asylum. But an offer of permanent residence in another EU country may raise questions related to the firm resettlement bar to asylum. We will discuss the firm resettlement bar in a later post.
Additional notes for applicants
Those applying for asylum should note that, when determining the applicant’s citizenship or nationality, courts and immigration officers may consider how the state in question views the applicant’s status with respect to that state. See Dhoumo v. BIA, 416 F.3d 172, 173 (2d Cir. 2005) (“Nationality is a status conferred by a state, and will generally be recognized by other states provided it is supported by a ‘genuine link’ between the individual and the conferring state.”) (citing Restatement (Third) of Foreign Relations § 211). Courts and officers also may consider whether the applicant holds a passport, and if so, whether the issuing country’s laws provide for reasons other than nationality when it issued that passport. See, e.g., Palavra v. INS, 287 F.3d 690, 694 (8th Cir. 2002) (finding that BIA failed to perform adequate fact-finding when it did not consider applicants’ testimony that their passports had been issued as a humanitarian accommodation). That said, courts also recognize that while passports are evidence of citizenship, such evidence “may be overcome by sufficient evidence that the holder of the passport is not a citizen” of the issuing country. Id. (quoting Matter of Maccaud, 14 I N Dec. 429, 431, 1973 WL 29472 (1973)).
Applicants should note that residence alone in a third country—without gaining nationality in that country, or factors that determine firm resettlement there—will not trigger the requirement to show persecution, or the well-founded fear of persecution, in that country. But courts or officers might look at the nature of the applicant’s residence to determine whether the applicant has firmly resettled in that country, which would be a bar to asylum.
Finally: Courts and officials would consider applicants who cannot establish their nationality as stateless, and their eligibility for asylum would be based on their country of last habitual residence. See, e.g., Dulane v. I.N.S, 46 F.3d 988, 999 (10th Cir. 1995) (“Who can state Dulane’s nationality with certainty? … More likely, Dulane is ‘stateless,’ a condition which a person becomes most often by expulsion or flight from his native country, or by change of national sovereignty, which has made him a stateless refugee.”).
- Congress extended the discretion to grant asylum to the DHS Secretary and DHS officials through the Homeland Security Act of 2002, Pub. L. No. 107-296, §§456, 1512, 1517, 116 Stat. 2135, 2200, 2310, & 2311.
- See More contemporary statutes that shape U.S. asylum law, under “The Real ID Act”.
Table of Authorities
- 74 INA §101(a)(42)(A); 8 USC §1101(a)(42)(A)
- North Korean Human Rights Act of 2004, Pub. L. No. 108-333, §302(a), 118 Stat. 1287
- Dhoumo v. BIA, 416 F.3d 172 (2d Cir. 2005)
- Dulane v. I.N.S, 46 F.3d 988 (10th Cir. 1995)
- Palavra v. INS, 287 F.3d 690 (8th Cir. 2002)
- Tesfamichael v. Gonzales, 469 F.3d 109 (5th Cir. 2006)
- Thile v. Garland, 991 F.3d 328 (1st Cir. 2021)
- Matter of Fatoumata Toure, No. A24 876 244, 1990 Immig. Rptr. LEXIS 1435, *17 (BIA June 26, 1990)
- Matter of B-R-, 26 I&N Dec. 119 (BIA 2013)
- Matter of K-R-Y- and K-C-S-, 24 I&N Dec. 133 (BIA 2007)
- Matter of Maccaud, 14 I N Dec. 429, 1973 WL 29472 (1973)
- Restatement (Third) of Foreign Relations § 211
- Jon Bauer, Multiple Nationality and Refugees, 47 Vand. J. Transnat’l L. 905 (2014)