Matter of Lam

• Decision Date: 24 March 1981
• Docket Number: A-16032555,Interim Decision Number 2857
• Citation: 18 I&N Dec. 15
• Parties: MATTER OF LAM In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

18 I&N Dec. 15

MATTER OF LAM

In Deportation Proceedings

Interim Decision Number 2857

A-16032555

Board of Immigration Appeals

Decided by Board March 24, 1981

(1) 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 firm 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 record is 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.

CHARGE:

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. 1251(a)(2)]—Nonimmigrant—remained longer than permitted

ON 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

BY: 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.¹ 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 I-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 Hong Kong seaman's book. He was authorized to remain in this country until his vessel departed, but in any event no longer than 29 days. 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 was accordingly granted by the immigration judge.² However, the immigration 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. Shaughnessy, 206 F.2d 392 (2 Cir. 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 person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

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 I-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 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.⁴ 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 243(h) applications. This is so because withholding of deportation is country-specific, barring deportation only to a single place.⁵ Thus, if there is any other place to which an alien may be 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(f)(1)(iii)-(vi). 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. 208.8(f)(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(c)(3) of the Refugee Act), failed to specifically mention the "firmly resettled" concept. The Supreme Court, however, when faced with the issue, found...