Interim Decision #2922 

MATTER OF SALIM 

In Exclusion Proceedings 

A-26110301 

Decided by Board September 29, 1982 

(1) Asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. 1158, 

denied as a matter of discretion to excludable alien who arrived in the United States 

with a fraudulent passport, despite grant of temporary withholding of deportation 

to Afghanistan pursuant to section 243(h) of the Act, 8 U.S.C. 1253(h). Under the 

Refugee Act of 1980, 243(h) relief to eligible aliens is mandatory, but asylum is discretionary_ 

(2) The applicant's deportation to Afghanistan is temporarily withheld pursuant to section 243(h) because that country is one of the countries to which the applicant may 

now be deported pursuant to section 237(a) of the Act, 8 U.S. C. 1227(a), as amended 

by the Immigration and Nationality Act Amendments of 1981. Deportation to Pakistan 

is not withheld because 243(h) relief is "country specific" and no likelihood of persecution in Pakistan has been established. 

(3) Applicant sufficiently established that he may be singled out for persecution in his 

native Afghanistan for opposing the ongoing Russian invasion and refusing to join 

the Soviet. controlled Afghan army in its war against the Afghan rebels opposing the 

invasion. State Department Bureau of Human Rights and Humanitarian Affairs (BHRHA) 

.opinion supporting the alien's persecution claim given significant weight. 

(4) In close persecution cases such as those in which the State Department BHRHA agrees 

with the applicant's fears of persecution, the immigration judge should ordinarily consider the discretion aspects of the asylum application to avoid a remand solely on that 

issue. 

EXCLUDABLE: 

Order. Act of 1952—Sec. 212(a)(19)[8 U.S.C. 1182(a)(19)1—Entered the United States 

by fraud or by willfully misrepresenting a material fact 

Sec. 212(a)(20) [8 U.S.C. 1182(0(20)1—Not in possesion of a valid 

unexpired visa or other valid entry document 

ON BEHALF OF APPLICANT: ON BEHALF F SERVICE: 

Barbara A.. Nelson, Esquire Joanna London 

do Arthur Pollack, Esquire Acting Appellate 

225 Broadway Trial Attorney 

New York„ New York 10007 

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

and Dissenting Opininn, VA C(72.- 

all 
Interim Decision #2922 

The applicant appeals from the March 24, 1982, decision of the immigration judge denying his applications for asylum pursuant to section 

208 of the Immigration and Nationality Act, 8 U. S. C. 1158, and temporary withholding of deportation pursuant to section 243(h) of the Act, 8 

U.S.C. 1253(h). The appeal will be sustained in part and dismissed in 

part. The immigration judge's decision will be modified so as to deny the 

application for political asylum as a matter of discretion but grant the 

application for temporary with holding of deportation to Afghanistan. 

The applicant's excludability under section 212(aX19) and 212(a)(24) of 

the Act, 8 U.S.C. 1182(a)(19) and 1182(a)(20), is not at issue and was 

conceded at the exclusion hearing on March 24, 1982 (Tr. p. 1). The 

applicant arrived in the United States from Pakistan on February .18, 

1982, with someone else's passport which he had fraudulently purchased 

in order to obtain a visa as a nonimmigrant visitor for business. See 

section 101(a)(15)(B)(1), 8 U. S.C. 1101(a)(15)(BX1). He appeals from the 

immigration judge's conclusion that he had not established the requisite 

well-founded fear of persecution in his native Afghanistan' and therefore was ineligible for asylum and temporary withholding of deportation_ 

The immigration judge reached that conclusion despite a State Department of Bureau of Human Rights and Humanitarian Affairs (BHRHA) 

advisory opinion dated March 12, 1982, that the applicant had established a well-founded fear of persecution in his native country (Ex.. 4). 

We agree with the applicant that he has established the requisite 

probability of persecution in Afghanistan. 2The applicant contended that 

he had been a member of the 1VIuja.hidin rebels in Kandahar and that two 

of his brothers have been arrested by the Soviet controlled Babrak 

regime for similar membership. Another brother was taken by Russian 

' Under section 7 of the Immigration and Nationality Act Amendments of 1881, Pub. 

L. 97-116, 95 Stat. 1611 (Dec. 29, 1981),•Afghanistan is one of the countries to which the 

applicant may be deported pursuant to section 237(a) of the Act, 8 U.S.C. 1227(a)_ The 

previous language limited deportation to the "country whence he came," Pakistan.. The 

applicable portions of the newly enacted section read us follows: 

(1) Any alien . . . arriving in the United States who is excluded shall be ... deported .. . 

to the country in which the alien boarded the . . . aircraft on which he arrived in the 

United States . . . . 

(2) If the government of the country designated in paragraph (1) will not accept the 

alien into its territory, the alien's deportation shall be directed by the Attorney General, 

in his discretion and without necessarily giving any priority or preference because of 

their order as herein set forth, either to— 

(A) the country of which the alien is a subject, citizen, or national; 

(B) the country in which lie was born:. 

(C) the country in which he has a residence; or 

(D) any country.which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible. 

2We therefore do not leach the applicant's contentions regarding Stevie v. Sava, C78 

F.2d 401 (2 Cir. 1982); Cf. Matter of Dunar, 14 I&N Dec. 310 (BIA 1973). 

312. 
Interim Decision #2922 

troops at Kandahar, and the applicant does not know his whereabouts or 

whether he is still alive (Ex:. 3). The immediate reason for his fleeing 

Afghanistan was that he refused to join the Soviet controlled Afghan 

army in its war against Afghan rebels presently fighting against the 

Soviet invasion (Tr. p. 3). 

The State Department BHRHA conclusion that the applicant would 

be persecuted is consistent with its report on Afghanistan in the 1981 

Country Reports on Human-RightsPractices at 929, 931, Joint Committees of the Senate and House of Representatives, 97th Congress, 1st 

Session (1981). 3The report emphasizes that due to mass desertion by 

Afghan soldiers who refuse to fight under Soviet command against their 

compatriots, the army resorts to dragooning and forcibly impressing 

into its forces men and boys as replacements. This clearly differs from 

persecution claims by aliens who merely seek to avoid military service 

in their country. See Komzc v. INS, 407 F.2d 102 (9 Cir. 1969). Under 

the facts of this case, we attach significant weight to the State Department's conclusion that this applicant would be persecuted if returned to 

Afghanistan. Consequently, we conclude that. the applicant has established a well-founded fear of persecution despite the immigration judge's 

conclusion to the contrary. The immigration judge's specific finding that 

the applicant left Afghanistan for mere economic reasons (i.j. dec. p. 3) 

apparently stemmed from a misunderstanding of the applicant's testimony that he came to the United States seeking employment (Tr. p. 7). 

That statement was a repetition of his immediately preceding testimony 

that he left Pakistan because he could not support his family left behind 

in Afghanistan, while unemployed in Pakistan (Tr. p. 6). It was not an 

explanation of why he left Afghanistan. 

Having concluded that the applicant established the requisite likelihood of persecution, a grant of temporary withholding of deportation to 

Afghanistan is required in this case pursuant to section 243(h) of the Act 

as amended by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 

162 (March 17, 1980). That section now specifies that "the Attorney 

General shallnot deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened on account of . . . political opinion." Under section 243(h) as drafted 

prior to the 1980 Amendment such relief was discretionary. 4 

' A State Department BHRHA opinion supporting an alien's contention that he will be 

persecuted in his native country should be given significant weight, particularly where 

supporting evidence and testimony supports such a conclusion. See Matter of Saban, 

18 I&N Dec. 70 (BIA 1981); Matter of Francois, 15 HEN Dec. 534 (BIA 1975). 

4The previous language of section 243(h) read: "the Attorney General is authorized to 

withhold deportation." The case before us does not involve any issue of ineligibility for 

relief under the grounds set forth in section 243(h)(2). Moreover, this applicant is not 

deportable under the provision of section 241(a)(19) of the Act. 

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Interim Decision #2922 

We next address the question of asylum which section 208(a) of the 

Act provides is discretionary in nature. It specifically states that an 

alien applicant "may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a 

refugee within the, eaning of section 101(a)(42)(A) of the Act, 8 U.S.C. 

1101(a)(42)(A)." (Emphasis supplied.) Once it is determined that the 

requisite probability of 'persecution has been established for section 

243(h) relief, such a conclusion is also binding on the issue of persecution 

for purposes of asylum under section 208 of the Act. Matter of Lam, 

18 I&N Dec. 15 (BIA 1981). Therefore, the applicant's statutory eligibility for asylum has been established. However, the Service contends 

that the application for political asylum in the United States should be 

denied as a matter of discretion due to the circumstances of his arrival in 

the United States with a fraudulently purchased passport bearing someone else's name. Similarly, the State DepartmentBHRHArecommended 

in its advisory letter that the asylum application be denied for policy 

considerations since the applicant misused our immigration laws to gain 

an advantage over all other similarly situated Afghan refugees in Pakistan who are following the established procedures for legally immigrating to the United States. 

This Board has not previously considered the exercise of discretion in 

asylum cases where it was found that the alien would be persecuted if 

returned to his native country. Until May 1979 neither immigration 

judges nor this Board addressed asylum claims, as jurisdiction to adjudicate asylum applications then lay exclusively with the District Directors. 

The immigration judges and this Board only had jurisdiction to consider 

applications for withholding of deportation under section 243(h). 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.R. 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(b) (effective June 1, 

1980). In view of this Board's recent acquisition of jurisdiction over 

asylum claims and the revision of the laws in this area in 1980, many 

issues raised before the Board relating to asylum are issues of first 

impression. 

The language in section 208(a) specifying the discretionary nature of 

asylum relief is clear, and since that section was enacted subsequent to 

the 1967 Protocol it controls over any conflicting language in the protocol under the applicable rules of statutory interpretation. Consequently, . 

under the present statute an otherwise eligibles alien whom the Attor 

Aliens who persecuted others abroad and specified classes of criminals are precluded 

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Interim Decision #2922 

ney General determines that his life or freedom would be threatened in 

his native country on account of race, religion, nationality, membership 

in a particular social group, or political opinion is entitled to 243(h) relief 

and may also be granted asylum relief, but only as a matter of discretion. 

Section 243(h) relief is "country specific" and accordingly, the applicant here would be presently protected from deportation to Afghanistan 

pursuant to section 243(h). But that section would not prevent his exclusion and deportation to Pakistan or any other hoipitable country under 

section 237(a) if that country will accept him.'' In contrast, asylum is a 

greater form of relief. When granted asylum the alien may be eligible to 

apply for adjustment of status to that of a lawful permanent resident 

pursuant to section 209 of the Act, 8 U.S.C. 1159, after residing here 

one year, subject to numerical limitations and the applicable regulations. 

See 8 C.F.R. 209. Considering this relationship between asylum and 

243(h) relief, we now examine the discretionary factors in this case. 

Ai stated above, the Board had never before considered a discretionary denial of asylum relief. However, the lack of direct precedents does 

not mean that useful guidelines are unavailable. For example, 8 G.F.R. 

208.8(f)(1) precludes the District Director from granting asylum relief to 

specific classes of applicants, and 8 C.F.R. 208.8(f)(2) states that the 

District Director shall consider- all relevant factors such as whether an 

outstanding offer of resettlement is available to the applicant in a third 

country and the public interest involved in the specific case. The 

regulations, in essence, summarize the specific preclusion in the Act 

against aliens who persecuted others abroad with this Board's and the 

judicially developed principles for the exercise of discretionary relief 

from deportation. See Rosenberg v. Woo, 402 U.S. 49 (1971). Although 

those regulations are addressed to the District Director and are not 

binding on this Board, we consider them as useful guidelines in the 

exercise of discretion over asylum requests. 

Attempting entry into the United States by way of fraudulently 

obtained documentation has consistently been considered a strong negative discretionary factor. See &Wand v. INS, 669 F.2d 1157 (6 Cir. 

1982). This applicant is excludable under section 212(a)(19) of the Act. 

We note that section 212(a)(19) excludability would require a waiver 

pursuant to section 209(c), 8 U.S.C. 1159(c), for refugee. adjustment of 

status cases.' Finally, as the Service and the State Department letter 

from obtaining 243(h) relief. See Matter of Rodriguez-Palma, 17 I&N Dec..465 (BIA 

1980); Matter of Martinez-Rivera, 18 1&N Dec. 75 (BIA 1981); Matter of SangsterGarcia, 17 I&N Dec. 592 (BIA 1980); Compare, Matter of Frentescu, 18 I&N Dec. 244 

(BIA 1982). 

3eutiun 237(a). See note 1 above. 

' Under the terms of section 209(c), the provisions of sections 212(a)(14), (15), (20), (21), 

(25), and (32), do not apply to an alien seeking adjustment of status under section 209. The 

315 
Interim Decision #2922 

suggested, the public interest requires that we do not condone this 

applicant's attempt to circumvent the orderly procedures that our government has provided for refugees to immigrate lawfully. The fraudulent passport was obtained after the applicant had escaped from 

Afghanistan, with ,the sole purpose of reaching this country ahead of all 

the other refugees awaiting their turn abroad. This is not the case 

where an alien was forced to resort to fraudulently obtained documentation in order to escape or prevent being returned to the country in which 

he fears persecution. See Matter of Mg, 17- I&N Dec. 536 (BIA 1980). 

This Board fmds that the fraudulent avoidance of the orderly refugee 

procedures that this country has established is an extremely adverse 

factor which can only be overcome with the most unusual showing of 

countervailing equities. This case before us does not present such 

equities. Consequently, the application for asylum relief will be denied 

as a matter of discretion. 

A final issue remains in this case. At oral argument counsel for this 

applicant argues that if asylum is denied as a matter of discretion on the 

basis of the record before us, a remand for a further finding on the 

discretionary issue should be ordered. He contends that the applicant 

has been cooperating with United States authorities combating the growing use of the subterfuge of obtaining fraudulent passports to improperly obtain nonimmigrant visas abroad, fly into the United States and 

file asylum applications. 

First, we note that no evidence has been offered to that effect. No 

government official recommends that his alleged cooperation be considered favorably in this asylum application so as to overcome the heavily 

negative factors in this case. .In any event, attempting to enter the 

United States by using fraudulent documents is a felony pursuant to 18 

U.S.C. 1546. By cooperating with United States authorities in their 

investigation this alien might gain clemency from such authorities and 

avoid prosecution. More importantly, even if we accept the representation in this regard as true, such cooperation is not a sufficient significant 

factor to warrant granting asylum relief as a matter of discretion in this 

case. The motion to remand • will accordingly be denied. 

We finally note that the record of unfavorable discretionary factors 

was unusually well documented in this case, and therefore, sufficiently 

ripe for our review. In close persecution cases, however, such as those 

in which the State Department BHRHA agrees with an applicant's 

fears of persecution, the immigration judge should ordinarily consider 

Attorney General "may waive any other provision of such section (other than paragraphs 

• (27), (29), or (33) and other than so much of paragraph (23) as relates to trafficking in 

narcotics) with respect to such an alien for humanitarian purposes, to assure family unity, 

or when it is otherwise in the public interest." (Emphasis added). 

316 
Interim Decision #2922 

the discretion aspects of the asylum case to avoid a remand solely on 

that 

ORDER: The appeal from the denial of asylum relief will be dismissed, the appeal from the denial of 243(h) relief to Afghanistan will 

be sustained and the motion to remand denied. 

FURTHER ORDER: The applicant is excluded and deported to 

Pakistan. 

FURTHER ORDER: The applicant's deportation to Afghanistan 

pursuant to sections 237(a)(2XA) and (B) if the government of Pakistan 

refuses to accept his deportation to that country pursuant to section 

237(a)(1), will be temporarily withheld as provided by section 243(h) of 

the Act. 

CONCURRING AND DISSENTING OPINION: Fr,ed W. Vacca, Board Member 

I respectfully concur in part and dissent in part. 

The immigration judge found the applicant excludable under section 

212(a)(19) and (20) of the Immigration and Nationality Act, 8 U.S.C. 

1182(a)(19) and (20), as an immigrant who procured his visa by fraud and 

who was not in possession of a valid unexpired visa or other necessary 

documents at the time of his application for admission to the United 

States. The applicant applied for asylum under section 208 of the Act, 8 

U.S.C. 1158, and withholding of deportation under section 243(h) of the 

Act, 8 U.S.C; 1253(h). The immigration judge denied his applications. 

The applicant appealed. In its decision, the majority of the members of 

the Board of Immigration Appeals dismiss ed the appeal from the denial 

of asylum relief, sustained the appeal from the denial of withholding of 

deportation, and denied the applicant's motion to remand the record of 

proceedings. The majority ordered the applicant excluded and• deported 

to Pakistan and further ordered that the applicant's deportation to 

Afghanistan be temporarily withheld as provided in section 243(h) of the 

Act. I concur in the conclusions of the majority that the applicant is 

excludable as charged, that his asylum application should be denied and 

that his motion to remand should be denied.. However, I do not agree 

that Cie applicant has met his burden of establishing statutory eligibility 

for withholding of deportation and believe that the majority erred by 

granting that relief. • 

The record reveals that the applicant is a 27—year-old native and citizen of Afghanistan who entered PakiStan in Jannary.of 1982 and resided • 

there for less. than:one month.. The applicant •departed Pakistan. and 

arrived: in the United States on February 18; .1982.. In support, of.his 

applications •fort asylum and withholding. of deportation, the applicant 

testified at his hearing that he left Afghanistan because he is an. anti317 
Interim Decision #2922 

communist and feared that the existing government would incarcerate 

or otherwise harm him because he refused to join the government's 

army. He further testified that he belonged to a rebel organization in 

Afghanistan known as the "Mujahidin" and that he aided that organization by distributing leaflets and papers. The applicant related that two 

of his brothers were employed by the previous regime in Afghanistan, 

that they opposed the present regime, and that because of that opposition they were imprisoned by that government. The applicant also stated 

that another brother went into the Russian Army, that he has not heard 

from him since that time, and that he does not know the whereabouts of 

that brothernhe applicant testified that he left his family in Afghanistan when he went to Pakistan. He also stated that he departed Paidstan for the United States because he did not desire to live in Pakistan, 

that there was nothing for him to do there, and that he did not have 

enough money to buy land in Pakistan. Apart from his testimony, and 

his written application for asylum, the applicant offered no other evidence to support his claim. 

A letter from the Bureau of Human Rights and Humanitarian Affairs, 

Department of State, dated March 12, 1982, is of record. That letter 

which was written at the request of the Immigration and Naturalization 

Service informs the reader that since the 1979 Soviet invasion of 

Afghanistan, more than three million Afghans fled into neighboring 

countries where they have obtained temporary refuge. The State Department letter contains no specific information relating to the applicant or 

his activities in Afghanistan. It did contain the opinion that the applicant has established a well-founded fear of persecution in Afghanistan. 

However, it is clear from a reading of the letter that this opinion was 

predicated upon the assumption that the information provided by the 

applicant in his application for asylum (Form 1-589) is true. It does not 

appear that the opinion was based on specific, independent information 

known to the Department of State. 

An applicant for asylum or withholding of deportation must show 

that, if deported, he would likely be subject to persecution based on his 

race, religion, nationality, membership in a particular social group, or 

political opinion. Section 208(a) of the Act. See section 243(h) of the Act; 

Matter of McMullen, 17 I&N Dee. 542 (BIA 1980), reed on other 

grounds, 658 F.2d 1312 (9 Cir. 1981). An undocumented assertion or an 

apprehension which is purely subjective is not sufficient to support a 

persecution claim under the statute. An applicant must present objective evidence that he has a well-founded fear that he is likely to be 

singled out for persecution by government officials in the country of 

deportation. See McMullen v. INS, supra; Kashani v. INS, 547 F.2d 

376 (7 Cir. 1977); Stevie v. Sava, 678 F.2d 491 Cir. 1982); Matter of 

Chumpitazi, 16 I&N Dec. 629 (BIA 1978). 

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Interim Decision #2922 

Upon a review of this record, I find that the applicant has failed to 

establish his persecution claim. The transcript of the mina ,is of the 

exclusion hearing shows that only the applicant testified. Apart from 

the submission of his asylum application, no other documents were furnished by the applicant in support of his claim. I find not a single item of 

probative, objective evidence in the record to satisfactorily corroborate 

the applicant's story. The applicant's testimony is that he is an anticommunist, that he refused to join the Afghan army and that, for these 

reasons, he believes he would be in danger from the present regime in 

Afghanistan if returned to that country. The record, however, contains 

no corroborative evidence of a particularized nature to establish that he 

was politically active in Afghanistan, that he opposed the present government in that country or, for that matter, that he fled Afghanistan to 

avoid service in the army. 

, A letter of the Department of State relating to a persecution claim is 

admissible into evidence in these proceedings. Pereira-Diaz v. INS, 551 

F.2d 1149 (9 Cir. 1977); Matter of Francois, 15 I&N Dec. 534 (BIA 

1075). However, such letters are advisory in nature and not binding on 

the Board of Immigration Appeals. Matter of Exilus 18 I&N Dec. 276 

(BIA 1982). The weight to be accorded an advisory opinion will be 

determined by examining its probative quality. In this case, the advisory opinion contains no particularized information concerning the applicant or his activities in Afghanistan. The letter is also devoid of 

specific reasons for the opinion other than the expressed reliance on the 

assumption that the applicant's story is true. In view of these circumstances, I find that the advisory opinion has little or no probative value 

and, therefore, I choose not to rely upon it in my consideration of the 

applicant's claim for withholding of deportation. The reliance of the 

majority on the advisory opinion of the Department of State and the 

1981 Country Reports on Human Rights Practices, Joint Committees of 

the Senate and House of Representatives, 97th Congress, 1st Session 

(1981)1is, in my view, unwarranted in light of the generalized nature of 

the opinion and the report and the fact that the applicant has offered 

nothing more than a bare and unsubstantiated claim of persecution. 

For the above reasons, I would find that the applicant has not met his 

burden of proof and would deny his applications for asylum and withholding of deportation. Accordingly, I would dismiss his appeal and deny his 

motion to remand the record of these proceedings. 

' I note that the Country Reports on Human Rights Practices cited by the majority in 

its decision do not identify the applicant or relate specifically to the applicant or his 

activities in Afghanistan. 

819