New York Lawyer's Legal Updates

Dual Citizenship And Asylum

Author: US Asylum attorney Alena Shautsova

New York Immigration lawyer Alena Shautsova helps clients with all aspects of asylum filings. In this article, we will discuss legal challenges to asylum that arise form dual citizenship and permanent residency of an asylum seeker and how dual citizenship or permanent residency may affect one’s asylum chances in the US.

If you had a chance to review form I -589, application for asylum, you may have noticed that it has questions about your family members: parents, siblings, including their locations. It also contains questions regarding the applicant’s and the applicant’s family members’ receipt or attempts to receive legal status in other countries. Such questions help US Immigration authorities to determine if an applicant may potentially have dual nationality or permanent residency in a third country (other than one’s home country from which he/she is seeking asylum). If the answers to these questions indicate that there is a potential for the applicant to be regarded as having dual nationality, the applicant’s burden to establish asylum eligibility in the US becomes heavier. A person is not a refugee if she has more than one nationality and she cannot meet her burden to establish that the second country will deny her protection. Matter of B-R-, 26 I&N Dec. 119 (2013).

But does it mean be a “national” of a country? Actually, the issue is not so straightforward. For example, an asylum applicant who was a citizen of Guinea and possessed a passport from the Ivory Coast was nevertheless granted asylum in the US, because it was found the applicant had no connection with the Ivory Coast and was not a true national of the Ivory Coast according to the definition of a national contained in the INA: as a person owing permanent allegiance to a state. Ordinary, having a passport of a country creates a presumption that an applicant is a national of that country unless the passport states otherwise. But, such a passport could have been obtained just for travel purposes or through bribes and does not represent any true connection between the applicant and the country the passport is from. The presumption of the nationality is pretty strong, and an applicant's assertion that the passport was issued for travel purposes only, by itself, is not enough to beat it.

If however, an applicant is in fact a dual citizen, he/she must establish that he/she is unable or unwilling to return to both countries and, essentially, he/she will have to demonstrate the presence of fear of persecution in both countries.

The issue of dual nationality requires separate analysis and should not be confused with the firm resettlement issue: when a person is found to have been firmly resettled in a third country, he/she does not necessarily have to be found to be a national of that country. Plus, firm resettlement is a bar to asylum. Learn more here >>. Note that the safe third country and firm resettlement bars do not apply to withholding or deferral of removal. See INA §241(b)(3).

In Matter of A-G-G- the BIA set a roadmap to determine whether an applicant was firmly resettled. First, to satisfy the requirement of showing that the firm resettlement bar may apply, the government “bears the burden of presenting prima facie evidence of an offer of firm resettlement.” To make a prima facie showing, the government “should first secure and produce direct evidence of governmental documents indicating an alien’s ability to stay in a country indefinitely.” “Such documents may include evidence of refugee status, a passport, a travel document, or other evidence indicative of permanent residence.” If such direct evidence is unavailable, the government may rely on indirect evidence, such as “the immigration laws or refugee process of the country of proposed resettlement; the length of the alien’s stay in a third country; . . . family ties and business or property; . . . and whether the alien had legal rights normally given to people who have some official status, such as the right to work and enter and exit the country.” The government only has to show an indication of the firm resettlement.

The applicant can rebut the prima facie evidence by “showing by a preponderance of the evidence that . . . an offer [of firm resettlement] has not, in fact, been made or that he or she would not qualify for it”—for example, by presenting evidence “regarding how a law granting permanent residence to an alien is actually applied and why the alien would not be eligible to remain in the country in an official status.” If it is determined that the applicant firmly resettled, the applicant has the burden to demonstrate by a preponderance of the evidence that he/she qualifies for an exception to firm resettlement under 8 C.F.R. §§ 1208.15(a) or (b).

In addition, recently BIA stated that “For purposes of determining whether an alien is subject to the firm resettlement bar to asylum, a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020).

If you need help with issues related to asylum in the US, book a confidential consultation by reaching us at 917-885-2261 (Consultation fees apply).

03 December 2020
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