Interim Decision #3001
MATTER OF GHARADAGIII
In Exclusion Proceedings
A-23299833
Decided by Board November 1, 1985
(1) An alien who circumvents the orderly procedures for obtaining refugee status
abroad may be granted asylum as a matter of discretion if he establishes sufficient countervailing equities.
(2) Generally, it will be necessary to balance the positive and negative factors in
each case where an alien's circumvention of the orderly refugee procedures does
not involve a finding of fiaud under section 212(a)(19) of the Immigration and Na-
tionality Act, 8 U.S.C. § 1182(aX19) (1982). Matter of Shirdel, 19 I&N Dec. 33 (BIA
1984); and Matter of Salim, 18 I&N Dec. 311 (BIA 1982), clarified.
EXCUTTIART.R At of 1952—Sec. 212(019) U.S.C. § 1182(aX19)]—Seeks to enter
by fraud or willful misrepresentation of a material
fact
Sec. 212(020) [8 U.S.C. § 1182(aX20)]—No valid immigrant visa
ON BEHALF OF SERVICE:
David Dixon
ON BEHALF OF APPLICANT:
Kenneth A. Cohen, Esquire
Goldome Bank Building
880 Military Road
Niagara Falls, New York 14304-0198
Appellate Counsel
Michael Rocco
General Attorney
BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members
In a decision dated November 6, 1984, the immigration judge
found the applicant excludable under section 212(a)(20) of the im
migration and Nationality Act, 8 U.S.C. § 1182(a)(20) (1982); denied
his application for asylum under section 208 of the Act, 8 U.S.C.
§ 1158 (1982), in the exercise of discretion; declined to rule on his
application for withholding of deportation under section 243(h) of
the Act, 8 U.S.C. § 1253(h) (1982); and ordered that he be excluded
and deported from the United States. The applicant has appealed
from the discretionary denial of asylum. The appeal will be dis311
Interim Decision #3001
missed. The immigration judge's decision will be modified so as to
grant the application for withholding of deportation to Iran.
The applicant, a 24-year-old single male Armenian Christian, is a
native and citizen of Iran. He sought admission to the United
States on July 27, 1984, but did not appear to be clearly admi s sible.
At his hearing, the applicant conceded excludability under section
212(a)(20) of the Act. He also requested asylum and was found to
have established a well - founded fear of persecution. The immigration judge found that the applicant was not excludable under section 212(a)(19) of the Act. The Service has not appealed this finding.
The applicant's excludability under section 212(a)(20) of the Act
and well-founded fear of persecution are not at issue.
In early 1980, the applicant's mother, brother, and sister left
Iran, accompanied by the applicant's father, and entered Spain.
Later that year, the applicant's mother, brother, and sister were
admitted to the United States, apparently as visitors for medical
purposes. Meanwhile, the applicant's father returned to Iran in an
attempt to assist the applicant to leave Iran. This attempt was unsuccessful, although the applicant's father was able to leave Iran.
From Iran, the applicant's father went to Turkey and then to Barcelona, Spain. The applicant's father testified that, approximately 1
month after he had gone to the American consulate in Barcelona
and advised officials of his family in the United States, he was
given a visa. On December 31, 1981, the applicant's father was indefinitely paroled into the United States.
On October 27, 1983, the applicant, without any travel documents, was able to escape from his native country and enter Paidstan. The applicant testified that, when he left Iran, he intended to
come to the United States because his family, which includes a
lawful permanent resident uncle, was here. He alleged that he did
not apply for asylum in Pakistan because he did not want to
remain there. The applicant stated that, after 2 months in Pakistan, he registered with the United Nations as a refugee in order to
obtain a document for security purposes and in order to find out
the procedure to come to the United States. The applicant admitted
that, because he wanted to come directly to the United States, he
was refused a travel document by the United Nations. The applicant testified that the United Nations told him they could not send
him directly to the United States but might be able to send him to
a country in Europe, such as Austria or Italy, where he could do
something to come to the United States. The applicant indicated
that he did not know how long it would take a refugee to reach the
United States from Europe. During this time, the applicant's
family obtained legal assistance to facilitate the applicant's admis312
Interim Decision #3001
sion to the United States. A Request for Asylum in the United
States (Form 1-589) was submitted to the United States consulate
in Pakistan but, apparently, was returned on the grounds that the
consulate did not process refugee applications and would not issue
a visa to an alien without a passport. Subsequently, the applicant
stated he heard rumors that Pakistan, was going to extradite Armenian refugees to Iran. He purchased a Portuguese passport, departed from Pakistan in May 1984, 7 months after his entry, and flew
to Canada with stopovers in Milan and Rome, Italy. He stayed 1
and 1/2 hours in Milan to refuel and 4 hours in Rome, where he
changed planes. He stated that he did not seek refugee status in
Rome because he knew Iranians, in particular, a cousin, who had
made similar requests but had been denied relief. The applicant
also stated that he destroyed his passport en route.
The applicant arrived in Canada in May 1984 and applied for refugee status. He stated that he was given $140 per month sustenance from the Canadian Government. He further stated that he
decided to leave Canada because he was uncertain as to the length
of time it would take to adjudicate his application and because his
Canadian attorney advised that, although he would be able to visit,
he would be unable to live permanently with his family in the
United States. Prior to adjudication of his Canadian application,
and on the date scheduled for his hearing, L e, July 27, 1984, the
applicant sought admission to the United States. The record indicates that the applicant was a passenger riding in the front seat of
an automobile driven by an American Indian. The applicant stated
that he had known this man approximately 1 week, had met with
him three times, and had paid him $500 to go to New York City.
He further stated that he intended to travel from New York to his
family's home. The applicant advised that, when initially stopped
by immigration officials at the Canadian United States border, he
gave a name the Indian had instructed him to use. The applicant
further advised that he provided his true identity when taken to
another room. by immigration officials.
Except for specified purposes, the applicant has not been permitted physically to enter the United States. He remains in Canada.
The immigration judge found that the applicant did. not warrant
a discretionary grant of asylum in view of his deliberate avoidance
of obtaining proper refugee status in Pakistan and in Rome, Italy,
and of his deliberate avoidance of the assistance of the Canadian
Government.
On appeal, the applicant argues that he merits a favorable exercise of discretion. He contends that, as the absence of a finding of
fraud under section 212(2)(19) of the Act is decisive, his case is dis-
Interim Decision *3001
tinguishable from Matter of Salim, 18 I&N Dec. 311 (BIA 1982).
The applicant also points out that he did not fraudulently enter
Canada. He emphasizes that his immediate family is in the United
States, that his father could offer him employment, and that he
has been separated from his ftimily for at least 4 years.
The Service argues that Matter of Salim, supra, is not totally
based on a fraudulent entry into the United States, but on the
fraudulent avoidance of refugee procedures.
In Matter of Salim, supra, asylum under section 208 of the Act
was denied as a matter of discretion because the alien was excludable under section 212(a)(19) of the Act and because the alien attempted to circumvent the orderly procedures provided for refugees
to immigrate lawfully. The fraudulent avoidance of orderly refugee
procedures was found to be an extremely adverse factor, which
could only be overcome with the most unusual showing of countervailing equities.
In Matter of Shirdel, 19 MN Dec. 33 (BIA 1984), asylum was
denied as a matter of discretion to aliens who were excludable
under section 212(a)(19) of the Act, for seeking to enter by fraud,
and who had circumvented the orderly procedures for obtaining
refugee status abroad. In denying asylum, we pointed out that a
finding of excludability under section 212(a)(19) was not determinative. The critical factor was that, by using fraudulent passports, the
aliens improperly bypassed the orderly procedures prescribed for
obtaining refugee status abroad. We concluded that the aliens in
those proceedings, whose only relatives in this country were other
asylum applicants who had arrived at the same time, had not presented sufficient countervailing equities to merit discretionary
relief. See Sarkis v. Sava, 599 F. Supp. 724 (E.D.N.Y. 1984); Walai v.
INS, 552 F. Supp. 998 (S.D.N.Y. 1982).
An alien who circumvents the orderly procedures for obtaining
refugee status is not precluded from obtaining a discretionary
grant of asylum. However, as noted in Shirdel and Salim, supra,
the alien must establish that he has sufficient countervailing equities to warrant the favorable exercise of discretion. Generally, it
will be necessary to balance the positive and negative factors in
each case, particularly where a finding of fraud is not involved.
The applicant has not established that his asylum application
should be granted as a matter of discretion. On the record before
us, we conclude that the applicant has circumvented the orderly
procedures established for refugees to immigrate lawfully to the
United States. Rather than fleeing persecution, per se, the applicant's overriding purpose in seeking admission to this country is
reunification with his immediate family. The applicant's first safe
,
314
Interim Decision #3001
haven was Pakistan where he remained approximately 7 months.
While in Pakistan, the applicant initially applied for refugee status
with the United Nations. He was refused a travel document, however, not because he failed to qualify, but because he did not want
to comply with the United Nations procedure by which refugees
are sent directly to Europe, not to the United States. Further, after
his unsuccessful attempt to obtain refugee status from the United
States consulate in Pakistan, the applicant puxchased a fraudulent
passport on which he traveled to Canada via Rome. We have considered the applicant's claim that, when he was in Pakistan, he
was fearful of being extradited to Iran but, under the circumstances before us, do not find it to be persuasive. The applicant was
in Rome approximately 4 hours, had changed planes, and, through
the advice of a cousin as well as the United Nations, was aware
that he could seek refugee status from the United States Government in that city. The applicant did not apply for such status, however, apparently because his cousin's claim had been rejected. The
applicant has made no allegation that he fears or would be subject
to persecution in Italy. The applicant continued his journey to
Canada where he was given financial assistance from the Canadian
Government. He also was given a hearing regarding his application
for refugee status but failed to attend because he did not want to
wait for an adjudication which could take months and because he
wanted to be reunited with his immediate family. The applicant
has made no allegation that he fears or would be subject to persecution in Canada.
We recognize that the applicant did not attempt to use his Portuguese passport to procure a visa from the United States by fraud.
Similarly, the applicant did not attempt to enter the United States
with a fraudulent visa or passport; nor did he attempt to enter
Canada with a fraudulent visa or passport. Nevertheless, the finding of a lack of fraud pursuant to section 212(a)(19) of the Act,
while not a negative factor, cannot, in these circumstances, be considered to be a positive factor. It should be pointed out that, on the
basis of a fraudulent passport, not only was the applicant able to
travel to Canada, but he also was ultimately able to obtain physical
presence in that country. Through this mechanism, he also was
able to arrive at our border. Further, in order to obtain admission
into the United States, the applicant initially provided a false
name and used a smuggler.
We are sympathetic with the circumstances surrounding the applicant's separation from his parents, sister, and brother and with
the applicant's desire to be reunited with them. We note that the
applicant has not seen his mother, sister, and brother since he was
Interim Decision #3001
19, more than 5 years ago. With the exception of approximately 1
hour after his hearing, the applicant has not seen his father since
he was 20, more than 4 years ago. Specifically, the applicant has
not seen his father since the unsuccessful attempt to get the applicant out of Iran and reunited with his immediate family. Further,
the applicant's father has resided in the United States since December 31, 1981, while the applicant's mother, brother, and sister
have resided in the United States since 1980. Notwithstanding the
presence of family members in the United States, including a
lawful permanent resident uncle, however, none of the applicant's
immediate family has been accorded status as a United States citizen or lawful permanent resident. It appears that each member of
the applicant's immediate family is an asylum applicant.
Considering all of the circumstances in these proceedings, including the physical presence of immediate family members in the
United States whose asylum applications are as yet unadjudicated,
as well as the applicant's deliberate avoidance of prescribed refugee procedures, we are unable to conclude that the applicant has
established sufficient equities to outweigh the negative factors in
the record.
One additional matter must be addressed.. In view of the applicant's physical presence in Canada, the immigration judge found
that it was unnecessary to adjudicate the application for withholding of deportation. We do not agree.
The fact that the applicant in these proceedings is physically outside the United States is not determinative. Legally, all aliens in
exclusion proceedings are considered to be physically outside this
country. See generally Landon v. Plasencia,
459 U.S. 21 (1932).
Under the regulations, asylum requests shall also be considered as
requests for withholding exclusion or deportation. pursuant to section 243(h) of the Act. 8 C.F.R. § 208.3(b) (1985). This provision is
mandatory. It does not permit the immigration judge or the Board
to ignore an application for withholding of deportation properly
filed on Form 1-589. See generally Matter of Dea, 18 I&N Dec. 269
(B1A 1982). Further, the application may be made either in exclusion or in deportation proceedings. See 8 C.F.R. §§ 208.3(b), 208.9,
208.10, 208.11 (1985). The record reflects that the applicant has
properly filed a request for asylum and, concomitantly, a request
for withholding of deportation, on Form 1-589.
We have held that the well-founded-fear standard for asylum and
the clear-probability standard for withholding of deportation are
not meaningfully different and, in practical application, converge.
Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); see Sankar v. INS,
757 F.2d 532 (3d Cir. 1985); Rejaie v. INS, 691 F.2d 139 (3d Cir.
316
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1982); Matter of Salim, supra; see also Matter of Larn, 18 I&N Dec.
15 (BIA 1981). But see Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th
Cir. 1985); Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984)
(well-founded-fear standard more generous than the clear-probability standard); Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA
1985) (adopting the Cardoza-Fonseca standard in cases within the
jurisdiction of the United States Court of Appeals for the Ninth
Circuit). The applicant has established a well-founded fear of persecution. On the record before us, we conclude that the applicant
similarly has established that his life or freedom will be threatened
for one or more of the grounds specified in the Act. We further conclude that his application for withholding of deportation to Iran
must be granted.
Accordingly, the appeal will be dismissed. However, the applicant's application for withholding of deportation to Iran will be
granted.
ORDER: The appeal is dismissed.
FURTHER ORDER: The applicant's deportation to Iran is
temporarily withheld as provided by section 243(h) of the Act.
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