By Emma Rekart (JD ‘17)
Blog Post – Harvard Immigration and Refugee Clinic – Fall 2015
By the time asylum seekers enter the United States, they have already faced extraordinary struggles. They have fled their home countries because they feared for their safety or the safety of their families, and have come to America in the hopes of beginning a new life in a new country. Yet their ability to begin this new life can often depend on whether their story of suffering fits into the “refugee” definition laid out in the Immigration and Nationality Act:
“The term ‘refugee’ means (A) any person who is outside any country of such person’s nationality … and who is unable or unwilling to return to … 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.” 8 U.S.C. §1101(a)(42)(A) (2014).
This definition includes several complex phrases such as “persecution,” “on account of,” and “well-founded fear,” that have been interpreted by case law over the years. However, one phrase that has not garnered much attention until recently is the “any country” clause. This post will briefly discuss its meaning, as well as its implications for multiple nationality asylum seekers.
Why is the “any country” clause important?
For asylum seekers who are nationals of more than one country, a court’s interpretation of the “any country” clause could determine whether they are eligible for asylum in the United States. If the clause is read to mean “a/either country of nationality,” multiple nationality applicants would only need to show a well-founded fear of persecution in one country (likely their home country, which they are fleeing). However, if the phrase is read to mean “each/all countries of nationality,” they would need to show a well-founded fear of persecution not only in their home country, but also in the other country or countries of their nationality to which they may have limited ties. The “any country” clause is becoming more and more relevant because multiple nationality asylum seekers are now increasingly common. Technological developments and globalization have made cross-border travel more prevalent, increasing the number of children born with more than one nationality. In addition, many countries that previously did not recognize dual or multiple citizenships are beginning to amend their laws, allowing individuals to retain their nationalities despite acquiring nationalities in other countries.
How have courts interpreted the “any country” clause?
Surprisingly, the Board of Immigration Appeals (BIA) did not directly address the “any country” issue until a 2013 case called Matter of B-R-. The respondent in Matter of B-R- was a citizen of Venezuela who had fled to the United States after being attacked and threatened by pro-Chavez groups. Because his father was born in Spain, he also held Spanish citizenship. The BIA held that “in the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national.” 26 I. & N. Dec. 119, 121 (BIA 2013). This holding implies that to be eligible for asylum, multiple nationality applicants must establish a well-founded fear of persecution in all countries of nationality.
Critiques of the BIA’s interpretation in Matter of B-R-
The BIA’s interpretation of the “any country” clause is unworkable for two reasons: first, it is impractical, and second, it is inconsistent with other principles of asylum law.
- The BIA’s interpretation is impractical
The BIA interpretation of the “any country” clause ignores the complexities of multiple nationality cases. While some individuals may have substantial ties to their second country of nationality, others may have never lived there, may have no family there, and may not even speak the language. The possession of multiple nationalities is also frequently not a matter of choice, as it can happen automatically at birth or during childhood. To assume that applicants can reasonably relocate to an alternate country of nationality simply overlooks these realities.
Both jus sanguinis and jus soli nationality laws can give rise to this problem. In countries that enforce jus sanguinis, a child’s nationality is determined by the nationality of its parents. Therefore, the child of an emigrant parent automatically acquires citizenship in the parent’s country of origin, even if the family no longer possessed any ties to that country. For instance, a child born in Ethiopia to an Ethiopian mother and Italian father obtains Italian citizenship, even if he has never lived in Italy, has no family there, and speaks no Italian. In jus soli systems, nationality is conferred to any child born within the territory of the country, regardless of the nationality of his or her parents. In these systems, children born in a country during a short visit by parents obtains citizenship of that country, even if he or she never returns or establishes any ties there. For instance, a child born in Mexico to Guatemalan parents, who moves back to Guatemala as an infant and lives there until adulthood, retains Mexican citizenship. The existence of second nationalities in these cases seems arbitrary; however, they could constitute substantial barriers to asylum under the BIA’s interpretation of the “any country” clause.
In addition, there are frequently evidentiary hurdles associated with proving nationality in a second country. Documentation of nationality can be elusive, especially if an applicant must prove nationality through parental documentation (as is the case in jus sanguinis countries), or if the country in question has no comprehensive record-keeping system. However, the inability to produce such documentation does not automatically preclude an asylum officer from denying asylum based on the possible existence of multiple nationalities. Therefore, applicants could run into situations where they are unable to prove their second nationality (thereby preventing them from accessing the benefits of that nationality), but are nonetheless barred from asylum.
- The BIA’s interpretation is inconsistent with other principles of asylum law.
In addition to being unrealistic, the BIA’s interpretation of the “any country” clause also contradicts other principles of asylum law. For example, it is inconsistent with the “internal relocation” principle. The ability of an applicant to relocate to a different part of his or her home country is an important factor in assessing the merits of his or her asylum claim. In making this finding, an Immigration Judge must “determine whether the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and whether, under all the circumstances, it would be reasonable to expect the applicant to do so.” See e.g. Matter of M-Z-M-R, 26 I. & N. Dec. 28 (BIA 2012) (emphasis added). This “reasonableness” standard allows courts to consider factors such as “age, gender, health, and social and familial ties” in assessing whether an applicant could realistically internally relocate. 8 C.F.R. § 1208.13 (b)(3) (2013). Unlike the internal relocation standard, the BIA’s interpretation of the “any country” clause does not include a reasonableness factor. However, in many cases, relocating outside one’s home country is a larger burden than relocating within it. Should it not logically follow that if a reasonableness factor exists for the latter, it should also exist for the former?
The BIA’s interpretation is also inconsistent with the firm resettlement principle, which states that asylum may not be granted to an alien who, prior to arriving in the U.S., “entered another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” 8 C.F.R. §208.15 (2010). The regulation carves out an exception for applicants who only entered the third country as a necessary consequence of their flight from persecution, who remained in that country only long enough to arrange onward travel, and who did not establish significant ties in that country. Id. at §208.15(a). In interpreting the firm resettlement bar, federal courts and the BIA have held that citizenship in a third safe country does not automatically preclude an applicant from asylum eligibility. See, e.g., Su Hwa She v. Holder, 629 F.3d 958 (9th Cir. 2010) (where the Ninth Circuit found that a Burmese citizen who had spent eighteen months in Taiwan and obtained a Taiwanese passport was not barred from asylum because she fit into the exception in 8 C.F.R. §208.15(a)). It is contradictory for courts to hold that citizenship in a safe third country is not dispositive of firm resettlement, but that it bars asylum claims based on the “any country” clause.
What are possible solutions to this problem?
The BIA’s interpretation of the “any country” clause presents a significant barrier to asylum for multiple nationality applicants; however, its effects could be mitigated without completely reinterpreting the clause. For instance, the Attorney General (through regulation) or the BIA (through adjudication) could inject a “reasonableness” element to the determination of asylum eligibility in multiple nationality cases. The considerations outlining reasonableness of internal relocation are equally pertinent to determining whether an applicant should be expected to relocate to a second country of nationality, and could serve as a model for such a regulation. The BIA could also apply some of the factors in its firm resettlement doctrine, including whether the applicant has “significant ties” to the country of nationality. At the very least, there should be evidentiary rules governing when the existence of multiple nationalities should be considered in asylum determinations. For instance, if an applicant is unable to obtain documentation of a second or third nationality despite a good faith effort to do so, asylum officers should be specifically precluded from presuming the existence of an alternate nationality in their asylum determination. If litigators and legislatures were able to achieve some of these measures, the negative effects of the “any country” clause could be seriously diminished.
 John Bauer, Multiple Nationality and Refugees, 47 Vand. J. Transnat’l L. 905, 916-917 (2014).
 Asylum determinations are highly discretionary, and due to the Asylum Officer Training Manual’s silence on this issue, there is a risk that asylum officers could deny asylum in cases where applicants have made nothing more than a facial showing of multiple nationalities.
 In cases where the applicant has established past persecution, the DHS has the burden to prove that the applicant could internally relocate within the country. If the applicant’s case is based on a well-founded fear of future persecution, it is their burden to prove an inability to internally relocate.