PULA
19 I. & N. Dec. 467 (1987)
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Rule of Law:
An alien's circumvention of orderly refugee procedures, such as entering with fraudulent documents, is a single adverse discretionary factor to be weighed in a totality of the circumstances analysis, and is not an overwhelmingly negative factor requiring an unusual showing of countervailing equities.
Facts:
- Pula, an ethnic Albanian, was born in Albania and fled to Yugoslavia with his family at age five.
- Beginning in 1979, Yugoslav police officials repeatedly detained, interrogated, and physically abused Pula due to his Albanian ethnicity and suspected political activities.
- In 1982, after Pula requested travel documents to visit his sister in the U.S., police accused him of planning to participate in anti-Yugoslav demonstrations.
- In 1985, after being denied a U.S. visa with a Yugoslav-issued travel document, Pula reluctantly accepted Yugoslav citizenship to obtain a passport.
- On April 20, 1986, Pula traveled by train to Brussels, Belgium, after misrepresenting to Yugoslav authorities that he was only visiting Turkey.
- During a six-week stay in Brussels, Pula was told he could not get refugee status in Europe and was again denied a U.S. visa.
- Pula then purchased a fraudulent Belgian travel document containing a U.S. tourist visa for $1,000.
- On June 5, 1986, Pula used the fraudulent document to fly to New York to seek asylum, mailing his Yugoslav passport to a relative from an airport in Amsterdam during a stopover.
Procedural Posture:
- Pula arrived in the United States and was placed in exclusion proceedings before an immigration judge.
- Pula applied for withholding of deportation to Albania and Yugoslavia and for asylum.
- The immigration judge found Pula excludable and granted his application for withholding of deportation.
- The immigration judge denied Pula's application for asylum as a matter of discretion because he had used a fraudulent travel document to seek admission.
- Pula, the applicant, appealed the denial of asylum to the Board of Immigration Appeals (BIA).
- The Immigration and Naturalization Service (INS), the appellee, appealed the grant of withholding of deportation to the BIA.
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Issue:
In exercising discretion to grant asylum, may an immigration judge treat an applicant's circumvention of orderly refugee procedures, such as using a fraudulent travel document, as a determinative negative factor that requires an unusual showing of countervailing equities?
Opinions:
Majority - Milhollan, Chairman
No. While an alien's manner of entry is a relevant discretionary factor, the fraudulent circumvention of orderly refugee procedures is not, by itself, a determinative adverse factor requiring the most unusual showing of countervailing equities. The Board modifies its prior holding in Matter of Salim, which placed too much emphasis on this single factor. The correct approach is to examine the totality of the circumstances, balancing factors such as whether orderly procedures were actually available to the alien, the alien's attempts to seek refuge elsewhere, the seriousness of the fraud, and the alien's ties to the United States. The danger of persecution to an alien who has established a well-founded fear should generally outweigh all but the most egregious adverse factors. Here, Pula's attempts to enter legally, his strong family ties to the U.S., and the lack of other safe havens outweigh the negative factor of his fraudulent entry, warranting a favorable exercise of discretion.
Concurring and dissenting - Heilman, Board Member
No. While agreeing with the outcome, this opinion dissents from the majority's interpretation of the phrase 'irrespective of such alien's status' in Section 208 of the Act. The majority incorrectly limits this phrase to the procedure for applying for asylum, whereas it should be read to mean that the alien's status—including their manner of entry—is irrelevant to the discretionary decision to grant asylum. The asylum provisions are humanitarian and implement the UN Protocol Relating to the Status of Refugees, which forbids penalizing refugees for illegal entry. Asylum should be denied as a matter of discretion only in exceptional circumstances, and the focus on 'circumvention' has been a misapplication of the law's humanitarian purpose.
Analysis:
This decision significantly softens the harsh discretionary standard established in Matter of Salim, which had created a near-per-se bar to asylum for applicants who used fraudulent documents. By replacing that rigid rule with a flexible 'totality of the circumstances' test, Matter of Pula makes it more feasible for otherwise eligible asylum seekers who circumvented immigration procedures to receive a discretionary grant of asylum. It requires adjudicators to conduct a more holistic and equitable review, weighing the desperation and actions of the applicant against the negative factor of the fraud. This brings U.S. asylum practice more in line with the humanitarian goals of refugee law, emphasizing that the danger of persecution should be the paramount concern.
