Interim Decision #3033 

EER OF PULA 

In Exclusion Proceedings 

A-26873482 

Decided by Board September 22, 7987 

(1) An alien's manner of entry or attempted entry is a proper and relevant discretionary factor to consider in adjudicating asylum applications. 

(2) The circumvention of orderly refugee procedures can be a serious adverse factor 

in determining whether to grant asylum; however, it should not be considered in 

ouch a way that the practical effect is to deny relief in all cases. 

(3) The circumvention of the immigration laws is only one of a number of factors 

which should be balanced in exercising discretion, and the weight accorded to this 

factor may vsuy depending on the facts of a particular case. 

(4) The circumvention of orderly refugee procedures alone is insufficient to require 

the most unusual showing of countervailing equities. Matter of Salim, 18 I&N 

Dec. 311 (BIA 19821 modifiedEXCLUDABLE; Act of 1952—Sec. 212(aX19) [8 U.S.C. §1182(aX19)j—Seeks to enter 

by fraud or willful misrepresentation of a material 

fact 

Sec. 212(aX20) [8 U.S.C. § 1182(aX20))—No valid immigrant visa 

ON BEHALF OF APPLICANT: 

Joanna Miller Bukszpan, Esquire 

1414 Avenue of the Americas 

New York, New York 10019 

ON BEHALF OF SERVICE: 

Janice Podolny 

Appellate Counsel 

Alan L. Page 

General Attorney 

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

and Dissenting Opinion: Heilman, Board Member. 

In a decision dated December 1, 1986, the immigration judge 

found the aTplicant excludable under sections 212(a)(19) and (20) of 

the Immigration and Nationality Act, 8 U.S.C. §§1182(a)(19) and 

(20) (1982). He granted the applicant's applications for withholding 

of deportation to Albania and Yugoslavia under section 243(h) of 

the Act, 8 U.S.C. § 1253(h) (1982), but he denied the applicant's ap- 

.4 17 
Interim Decision #3033 

plication for asylum under section 208 of the Act, 8 U.S.C. § 1158 

(1982), and ordered that the applicant be excluded and deported 

from the United States. The applicant has appealed from the 

denial of his application for asylum. The. Immigration and Naturalization Service has appealed front the grant of the application for 

withholding of deportation to Yugoslavia. The applicant's appeal 

will be sustained, and the Service's appeal will be dismissed. 1 

The applicant is a 26-year-old married male native of Albania 

and citizen of Yugoslavia. He arrived in the United States on June 

5, 1986, and was placed in exclusion proceedings. The applicant 

does not contest on appeal his excludability under sections 

212(a)(19) and (20) of the Act. We are satisfied from a review of the 

record that the applicant received a fair hearing and that his excludability has been clearly established. The only issues to be decided by the present appeal are whether the immigration judge's 

denial of asylum and grant of withholding of deportation to Yugoslavia were proper. 

The applicant testified that he was born in Albania and fled to 

Yugoslavia with his family as a refugee when he was 5 years old. 

He said that he left Yugoslavia in 1986 to avoid further encounters 

with police officials who, on numerous occasions since 1979, had detained, interrogated, and physically abused himfor hours or days 

at a time. He stated that the police insisted that he was involved in 

the political activities of the Albanian minority in Yugoslavia, although he denied the accusation. lie said that the police sought information from him about such matters as his contacts with his Albanian family and friends, Albanian anti-government demonstrations, and discussions among local Albanian university students. 

He also testified that one of the periods of detention occurred in 

1982 after he approached Yugoslav authorities to request travel 

documents to visit his sister in the United States. The applicant explained that the police accused hint of planning to go to the United 

States to participate in anti-Yugoslav demonstrations with Albanians here. 

The applicant further advised that in 1985 Yugoslav authorities 

did issue him a titre de voyage 2 so he could travel out of the country, but the American Embassy denied his application for a visa. 

According to the applicant, he was told at the embassy that the 

titre de voyage did not guarantee his return to Yugoslavia. The apThis decision was originally entered on August 6, 1987. We have reopened on 

our own motion for the limited purpose of Incorporating revisions fur publicaLivu. 

2 A titre de voyage is a travel document issued in lieu of a passport under provisions of the United Nations Convention Relating to the Status of Refugees, July 29, 

1951, 189 U.N.T.S. 150. 

468 
Interim Decision 4t3038 

plicant testified that he subsequently relinquished his refugee 

status and reluctantly accepted Yugoslav citizenship in order to 

qualify for a Yugoslav passport. He said that he left Yugoslavia on 

April 20, 1986, as soon as he managed to obtain the passport. He 

stated that he took a train to Brussels, Belgium, although he had 

made application to Yugoslav authorities only for permission to 

visit Turkey. He testified that he believed that the authorities 

would have denied him the passport if they had known that he intended to go to the United States. He also said that he was afraid 

to apply again for a visa at the American Embassy because most of 

the employees there were Yugoslav nationals who might be agents 

for the Government of Yugoslavia. 

In addition, the applicant testified that he stayed in Brussels for 

6 weeks with a man who had been a friend of his family in Albania 

and Yugoslavia. He said that his friend made a telephone call on 

his behalf to a refugee organization in Italy to inquire about 

whether he could obtain residency in an Italian refugee camp. According to the applicant, his friend was informed by the organization that citizens of Yugoslavia were not accepted as refugees in 

European states. The applicant also said that while he was in Brussels he applied for a tourist visa at the American Embassy, but his 

application was denied and he was told to go to Yugoslavia to apply 

for a visa. He testified that he did not ask for asylum at the American Embassy because he did not know that he could do so. 

The applicant also stated that one day while he was discussing 

his situation in an Albanian coffee house in Belgium, a stranger 

there offered to sell him a titre de voyage for $1,000. He said that 

he gave the man his photograph and paid him the money 2 days 

later, when he returned with a titre de voyage issued by the Government of Belgium which had a tourist visa to the United States 

already entered. The applicant advised that the titre de voyage had 

been issued in the name of someone whom he did not know. 

The applicant further testified that on June 5, 1986, he flew with 

his titre de voyage from Belgium to New York. He said that during 

a 2- to 3-hour stopover at the airport in Amsterdam, he mailed his 

Yugoslav passport to a cousin in the 'United States to avoid having 

it in his possession when he landed in New York. He explained 

that his inability to speak English made him concerned that immig-ration officials might discover the passport and put him on a 

plane to Yugoslavia before he could tell them about his desire for 

asylum. The applicant also stated that he did not dispose of the 

Yugoslav passport altogether because he planned to use it later to 

corroborate his account of events for his asylum request. In addition, the applicant advised that when he arrived in New York, lanA4Q 
Interim Decision #3033 

guage differences did in fact prevent him and the immigration officer from communicating and, as a result, he did not tell the officer 

anything or sign any statements. 

The applicant also testified that he chose to flee to the United 

States because he had relatives here. He stated that he had a sister 

and two uncles who were lawful permanent residents of the United 

States, and cousins who were United States citizens. He further advised that his wife, who was still living in Yugoslavia with their 

daughter, also had an uncle and cousins in the United States. The 

record reflects that, many of the applicant's relatives traveled from 

such places as upstate New York, Texas, and California on multiple occasions to attend the applicant's hearings in New York City. 

In his decision, the immigration judge stated that if the facts as 

described by the applicant were true, they established without a 

doubt that the applicant had been persecuted in the past and faced 

a clear probability of persecution in the future. The immigration 

judge then made a specific finding that the applicant's testimony 

was credible, noting that he had observed the applicant testify for 

approximately 8 hours over a period of 2 days. He accordingly 

found that the applicant had established his eligibility for withholding of deportation to Yugoslavia and Albania. The immigration 

judge further found, however, that the applicant was not eligible 

for asylum. as a matter of discretion because the equity of his many 

relatives legally in the United States did not overcome the adverse 

factor of his having sought admission to the United States by use 

of a purchased travel. document. 

On appeal, the Service contends that the applicant has not established his eligibility for asylum or withholding of deportation to 

Yugoslavia because his testimony is not credible. It is argued that 

the applicant's persecution claim rests primarily on his own selfserving statements, that discrepancies exist between his testimony 

and his written asylum application, and that some of the facts to 

which he testified, such as his receipt of Yugoslav citizenship and a 

Yugoslav passport, are inconsistent with a clear probability or a 

well-founded fear of persecution. In addition, the Service maintains 

that the iramigration judge correctly denied asylum in the exercise 

of discretion because the applicant sought admission to the United 

States with a false travel document. 

The applicant asserts on appeal that there is no basis to disturb 

the immigration judge's credibility finding, and that he merits 

asylum on both statutory and discretionary grounds. He contends 

that the immigration judge gave undue weight to his manner of attempted entry in denying asylum in the exercise of discretion. He 

argues that in Matter of Salim, 18 I&N Dec. 311 (13IA 1982), the 

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Interim Decision #3033 

Board of Immigration Appeals failed to consider that section 208(a) 

of the Act is "entry-blind." According to the applicant, the phrase 

"irrespective of such alien's status" in section 208(a) implies that 

Congress did not intend for the manner of entry or attempted 

entry to be relevant in determining eligibility for asylum. He maintains that while manner of entry may be considered as one of 

many factoxs in exercising discretion, it should not be used as the 

primary and overriding basis for denial. 

The applicant bears the evidentiary burdens of proof and persuasion in any application for withholding of deportation under section 243(h) or asylum under section 208 of the Act. Matter of 

Acosta, 19 I&N Dec. 211 (BIA 1985); 8 C.F.R. §§ 208.5, 242.17(c) 

(1987). 

To be eligible for withholding of deportation pursuant to section 

243(h) of the Act, an alien's facts must show a clear probability of 

persecution in the country designated for deportation, on account 

of race, religion, nationality, membership in a paxticular social 

group, or political opinion. INS v. Stevie, 467 U.S. 407 (1984). This 

means that the alien's facts must establish that it is more likely 

than not he would be subject to persecution for one of the grounds 

specified. rd. 

To be eligible for asylum under section 208 of the Act, an alien 

must meet the definition of a "refugee," which requires him to 

show persecution or a well-founded fear of persecution in a particular country on account of race, religion, nationality, membership in 

a particular social group, or political opinion. Section 101(aX42)(A) 

of the Act, 8 U.S.C. § 1101(a)(42XA) (1982); section 208 of the Act. 

The burden of proof required to establish eligibility for asylum is 

lower than that required for withholding of deportation. INS v. 

Cardoza-Fonseca, 480 U.S. 421 (1987). An applicant for asylum has 

established a well-founded fear if he shows that a reasonable 

person in his circumstances would fear persecution for one of the 

five grounds specified in the Act Matter of Mogharrabi, 19 I&N 

Dec. 439 (MIA. 1987). Further, asylum, unlike withholding of deportation, may be denied in the exercise of discretion to an alien who 

establishes statutory eligibility for the relief. INS v. Cardoza-Fonseca, supra; Matter of Mogharrabi, supra. 

We find no merit in the assertion by the Service that the immigration judge erred in assessing the applicant's credibility. The immigration judge found the applicant to be credible after observing 

his demeanor and listening to his testimony for 8 hours over a 

period of 2 days. The finding of an immigration judge with respect 

to the credibility of witnesses appearing before him will ordinarily 

be given great weight. Wing Ding Chan v. INS, 681 F.2d 978 (D.C. 

471 
Interim Decision #3033 

Cir. 1980), cert. denied, 450 U.S. 921 (1981); Vasquez-Mondragon v. 

INS, 560 F.2d 1225 (5th Cir. 1977); Matter of Magana, 17 I&N Dec. 

111 (BIA 1979); Matter of Tens, 15 I&N Dec. 516 (BIA 1975); Matter 

of T-, 7 I&N Dec. 417 (BIA 1957). We have carefully examined the 

record in this case and conclude that the immigration judge's determination is correct. In view of the, detail, consistency, and 

candor of the applicant's lengthy testimony, we do not find that his 

credibility is impeached by the minor discrepancies in his written 

asylum application, which was prepared with the assistance of interpreters. 

We further agree with the immigration judge's conclusion that if 

the applicant's testimony is true, it establishes that the applicant 

has been persecuted. We have considered the Service's argument 

that some of the actions of Yugoslav authorities towards the applicant, i.e., granting him citizenship and issuing him a passport, 

appear inconsistent with an intent to persecute. Yet because the 

record reflects that those authorities nevertheless have persecuted 

the applicant, these apparent inconsistencies in treatment provide 

an insufficient basis, under the facts of this case, for rejecting the 

applicant's persecution claim We conclude, therefore, that a reasonable person in the applicant's circumstances would fear persecution if returned to Yugoslavia, and that the applicant has established his statutory eligibility for asylum. 

We turn now to the issue of whether the applicant merits asylum 

in the exercise of discretion. In Matter of Salim, supra, we denied 

asylum as a matter of discretion to an alien who was excludable 

under section 212(a)(19) of the Act and who attempted to circumvent the orderly procedures provided for refugees to immigrate 

lawfully. We found the fraudulent avoidance of orderly refugee 

procedures to be an extremely adverse factor which could only be 

overcome with the most unusual showing of countervailing equities. 

The applicant argues that the decision in Matter of Salim, supra, 

improperly considered the alien's manner of attempted entry, because it overlooked language in section 208(a) of the Act, "irrespective of such alien's status," which makes the manner of entry irrelevant to eligibility for asylum. We reject the applicant's argument. 

Section 208(a) of the Act provides: 

The Attorney General shall establish a procedure for an alien physically present 

in the United Slates or at a land border or port of entry, irreopective of ouch 

alien's status, to apply for asylum, and the alien may be granted asylum in the 

discretion of the Attorney General if the Attorney General determines that such 

alien is a refugee within the meaning of section 101(aX42XA). 

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Interim Decision #3033 

Section 208(a) consists of only one sentence, which contains two 

independent clauses linked by the conjunction "and." A careful 

reading of the language of this section reveals that the phrase "irrespective of such alien's status" modifies only the word "alien" in 

the first clause of the sentence. The function of that phrase is to 

ensure that the procedure established by the Attorney General for 

asylum applications includes provisions for adjudicating applications from any alien present in the United States or at a land 

border or port of entry, "irrespective of such alien's status." cf. Yiu 

Sing Chun v. Sava, '708 F.2d 869 (2d Cir. 1983); Matter of Waldei, 19 

I&N Dec. 189 (BIA 1984) (discussing whether an alien in the status 

of a stowaway is entitled under section 208(a) to a hearing before 

an immigration judge on his application for asylum). The phrase 

does not apply to the second clause of the sentence, which is independent and separate from the first clause. This second clause contains authorization for the Attorney General to grant asylum applications at his discretion. The only express qualification on the exercise of this discretion is that the alien be a refugee within the 

meaning of section 101(aX42)(A). Thus, while section 208(a) provides 

that an asylum application be accepted from an alien "irrespective 

of such alien's status," no language in that section precludes the 

consideration of the alien's status in granting or denying the application in the exercise of discretion. 

Yet while we find that an alien's manner of entry or attempted 

entry is a proper and relevant discretionary factor to consider in 

adjudicating asylum applications, we agree with the applicant that 

Matter of Salim, supra, places too much emphasis on the circumvention of orderly refugee procedures. This circumvention can be a 

serious adverse factor, but it should not be considered in such a 

way that the practical effect is to deny relief in virtually all cases. 

This factor is only one of a number of factors which should be balanced in exercising discretion, and the weight accorded to this 

factor may vary depending on the facts of a particular case. We 

therefore withdraw from Matter of Sctlinz insofar as it suggests that 

the circumvention of orderly refugee procedures alone is sufficient 

to require the most unusual showing of countervailing equities. 

Instead of focusing only on the circumvention of orderly refugee 

procedures, the totality of the circumstances and actions of an 

alien in his flight from the country where he fears persecution 

should be examined in determining whether a favorable exercise of 

discretion is warranted. Among those factors which should be considered are whether the alien passed through any other countries 

or arrived in the United States directly from his country, whether 

orderly refugee procedures were in fact available to help him in 

Ar7Q 
Interim Decision #3083 

any country he passed through, and whether he made any attempts to seek asylum before coming to the United States In addition, the length of time the alien remained in a third country, and 

his living conditions, safety, and potential for long-term residency 

there are also relevant. For example, an alien who is forced to 

remain in hiding to elude persecutors, or who faces imminent deportation back to the country where he fears persecution, may not 

have found a safe haven even though he has escaped to another 

country. Further, whether the alien has relatives legally in the 

United. States or other personal ties to this country which motivated him. to seek asylum here rather than elsewhere is another factor 

to consider. In this regard, the extent of the alien's ties to any 

other countries where he does not fear persecution should also be 

examined. Moreover, if the alien engaged in fraud to circumvent 

orderly refugee procedures, the seriousness of the fraud should be 

considered. The use of fraudulent documents to escape the country 

of persecution itself is not a significant adverse factor while, at the 

other a ictreme, entry under the assumed identity of .a United States 

citizen with a United States passport, which was fraudulently obtained by the alien from the United States Government, is very serious fraud. 

In addition to the circumstances and actions of the alien in his 

flight from the country where he fears persecution, general humanitarian considerations, such.as an alien's tender age or poor health, 

may also be relevant in a discretionary determination. A situation 

of particular concern involves an alien who has established his 

statutory eligibility for asylum but cannot meet the higher burden 

required for withholding of deportation. Deportation to a country 

where the alien may be persecuted thus becomes a strong possibility. In such a case, the discretionary factors should be carefully 

evaluated in light of the unusually harsh consequences which may 

befall an alien who has established a well-founded fear of persecution; the danger of persecution should generally outweigh all but 

the most egregious of adverse factors. 

Each of the factors mentioned above will not, of course, be found 

in every case. An applicant for asylum has the burden of establishing that the favorable exercise of discretion is warranted. Matter of 

Shirde2, 19 I&N Dec. 33 (BIA 1984). Therefore, the alien should 

present evidence on any relevant factors which he believes support 

the favorable exercise of discretion in his case. In the absence of 

any adverse factors, however, asylum should be granted in the exercise of discretion. 

In the case before us, the applicant attempted to enter the 

United. States with a fraudulent document. Yet we note that the 

474 
Interim Decision #3033 

applicant had inquired about obtaining refugee status in Europe, 

only to be informed that the Yugoslav citizenship which he had recently accepted presented an obstacle to his being recognized by 

European countries as a refugee. Further, the record reflects that 

the applicant resorted to the purchase of the fraudulent document 

only after he was unsuccessful in several attempts at acquiring a 

visa to enter the United States legally to ask for asylum. We find 

no basis for doubting the applicant's testimony that he failed to request asylum at the American Embassy because he did not know 

that he could do so. In addition, the applicant remained in Belgium 

for only 6 weeks and was in the Netherlands for only a few hours; 

it does not appear that he was entitled to remain permanently in 

either country. Moreover, he decided to seek asylum in the United 

States because he had many relatives legally in the United States 

to whom he could turn for assistance. Although only the applicant's sister would typically be characterized as a "close" relative, 

the record reflects that many of his other relatives are also particularly supportive and concerned about him. We note that the applicant seems to have no significant ties to any other countries except 

for Albania and Yugoslavia, where he fears persecution. Based on 

the foregoing factors, therefore, we find that asylum should be 

granted in the exercise of discretion. We further find it unnecessary to decide whether the applicant has also established a clear 

probability of persecution in Yugoslavia for the purpose of section 

243(h) of the Act. See Matter of Mogharrabi, supra. 

Accordingly, the applicant's appeal will be sustained and the 

Service's appeal will be dismissed. 

ORDER: The applicant's appeal is sustained and the Service's 

appeal is dismissed. 

FURTHER ORDER: The applicant is granted asylum pursuant to section 208 of the Immigration and Nationality Act, as 

amended, and the exclusion proceedings are terminated. 

Concurring in Part and Dissenting in Part: Michael J. Heilman 

Board Member 

In my view, this decision is headed in the right direction, the rejection of the unfortunate series of decisions starting with Matter 

of Salim, 18 I&N Dec. 311 (BIA 1982), in which so much emphasis 

was based on "circumvention" of the overseas refugee process, and 

on the manner of entry or attempted entry into the United States. 

These decisions were unfortunate because they betrayed a basic 

misunderstanding of the nature of the overseas refugee program 

A'7 
Interim Decision #3033 

and, most essentially, the criteria a person had to meet to even be 

considered for the program, much less to qualify. 

Equally as important, those decisions disregarded the clear language and clear purpose of section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982). The majority in this decision 

continues to disregard that language and purpose. Specifically, the 

phrase "irrespective of such alien's status" is interpreted by the 

majority as governing the procedures used to adjudicate asylum applications. I do not follow the logic of this approach. If the purpose 

of the phrase is as described by the majority, then it is simply surplus, as it adds nothing granamatienlly to that subsection, which 

could just as well read a "procedure for an alien physically present 

in the United States or at a land border or port of entry, to apply 

for asylum." 

In my estimation, that subsection makes more sense if that 

phrase is read to describe the alien, not the procedure for adjudicating the asylum claim This is so for two reasons. The first is the 

fact that there have been different procedures for different aliens 

to apply for asylum depending on their status and other factors. If 

this language required a single procedure, then it has never been 

implemented in that manner. 

Secondly, the purpose of the asylum provision would be better 

served by abandoning the fixation with the manner in which the 

asylum applicant has arrived in the United States or at a port of 

entry. The asylum provisions are humanitarian in their essence 

and indeed recognize that the forces which impel persons to seek 

refuge may be so overwhelming that the "normal" immigration 

laws cannot be applied in their usual manner. This fact was J.ecognized in the United Nations Convention and Protocol Relating to 

the Status of Refugees,' the international agreement which the 

asylum provisions implement. Not only did the Convention recognize the abnormal situations which give rise to refugee flows, it 

specifically forbade its signatories in Article 31 from penalizing a 

person who violated a signatory's borders, if the person presented 

himself promptly after arrival_ Since the United States is a signatory to the Protocol and purports to apply the asylum and refugee 

laws consistently with that agreement, there seems little justification for the approach taken. by the majority. 

I United Nations Convention Relating to the Status of Refugees, July 28, 1951, 

189 U.N.T.S. 150; United Nations Protocol Relating to the Status of Refugees, Jan. 

31, 1967, [1968] 19 U.S.T. 6223, No. 6577, 606 U.N.T.S. 268. 

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Interim Decision #3033 

While I concur with the conclusion reached in this appeal, I do 

not join that part of the decision which interprets the phrase "irrespective of such alien's status." Asylum should be denied in the exercise of discretion only in exceptional circumstances. 

477