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 Nationality Act, 8 U.S.C. 1101(a)(42)(A), that is, that he has a well-founded fear of persecution 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, withholding 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 Dissenting Opinion: Appleman, Board Member
In a decision dated September 24, 1979, an immigration judge found
the respondent deportable as charged, granted his application for withholding 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 further 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 country 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 Republic 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 deportation from the People's Republic of China, the immigration judge acknowledged 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 withholding applications as well. Moreover, the regulations provide that asylum
requests made after the institution of exclusion or deportation proceedings "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 freedom 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 country 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 similarities between these two forms of relief, and despite the fact that the two
terms have often been used interchangeably, there remain some differences 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 deportation 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 deportation 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 reasons 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 applications 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 resettlement 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 present 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 therefore necessary to enable the respondent and the Service to present
evidence on the question of fret resettlement. In addition to the guidelines 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 withholding 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 immigration 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 exploration whatsoever of the facts bearing on the relief. Under these
circumstances, I would not give the finding of persecution the conclusive 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 ambiguities of the record, I am willing to go along with the remand in this case.
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