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: 

Jules Coven, Esquire 

Lebenkoff and Coven 

One East 42nd Street 

New York, New York 10017 

ON BEHALF OF SERVICE: 

Gerald S. Hurwitz 

Appellate Trial Attorney 

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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. 2However, 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. 3We 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 conceivso 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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