But the BIA stressed that this did not mean a person must have lived in a country in order to be considered its national, but only that there must be "a sufficient and genuine connection ... such that the applicant may rightfully be said to owe permanent allegiance to that country." (136) It equated this with Nottebohm's test for effective nationality under international law. (137) As we have seen, this standard does nothing for the vast majority of multiple nationals seeking asylum, given that any link of ancestry or place of birth, no matter how attenuated, is considered effective for international law purposes. (138) The Guinean applicant was saved from deportation only because the BIA was able to find that her Ivory Coast passport was a mere "passport of convenience," conferred as a favor, that signified no permanent allegiance on her part and no permanent obligation by the Ivory Coast to provide her with sanctuary. (139)
This decision, if convoluted in its reasoning, at least grappled with some of the relevant considerations. The same cannot be said for the training manual for asylum officers, which since the mid-1990s has instructed that "[a] dual citizen must establish persecution or a well-founded fear of persecution in both countries of nationality to be eligible for asylum ... even if the applicant never resided in, or established personal ties to, a country of citizenship." (140) As rationale, it erroneously asserts that the statutory refugee definition "provides that the applicant must be unable or unwilling to return to 'any country of such person's nationality ... 141 (What the law actually says is that a person must be outside "any country of such person's nationality" and unable or unwilling to return to "that country.") (142) The manual cites the Convention and UNHCR Handbook as support for this approach, but takes no account of how the U.S. definition is worded differently than the Convention's. (143)
It was not until May 2013 that the BIA addressed the question of multiple nationality in a precedential decision. The case, Matter of B-R-, (144) involved a citizen of Venezuela who fled to the United States after being attacked and threatened by pro-Chavez groups. Because his father had been born in Spain, he also held Spanish citizenship. (145) The BIA held that to be eligible for asylum an applicant with more than one nationality must establish a well-founded fear of persecution in all such countries. (146) It acknowledged that the statute's phrase "any country" could be taken "to mean that he need only fear returning to one of the countries in which he has nationality or citizenship." (147) The BIA ignored all of the textual considerations that cut in favor of that reading. (148) Instead, it rested its conclusion on the Refugee Act's legislative history. Citing a Senate report statement that the Act's refugee definition eliminated the geographical and ideological restrictions that had previously limited refugee status to persons fleeing Communist and Middle Eastern countries, (149) the BIA concluded that "the most reasonable reading of the word 'any' in the 'refugee' definition is to allow aliens from any country to qualify as a refugee, not just those from the Middle East or Communist countries." (150)
As a textual matter, that reading makes little sense. To be sure, "any" can be read to have a broadening effect on the word "country," implying that any country will do. But as used in the sentence, "any" modifies the phrase "country of such person's nationality." The BIA's interpretation has the strange effect of taking "any" to mean "one or more, no matter which" when read as part of the phrase "any country," but then having it switch its meaning to "every" when read as part of the phrase "any country of such person's nationality."
The BIA's "any country" explanation also fails to provide a plausible account of Congress's motivations. The Convention refugee definition clearly is not limited to persons fleeing Communist or Middle Eastern countries. Had Congress simply adopted the Convention's wording, there would have been no ambiguity whatsoever that persons fleeing persecution anywhere in the world are covered. (151) Why would Congress unnecessarily depart from the Convention's wording in order to demonstrate that it was following the Convention's approach? (152)
The BIA also reasoned that the statute's "firm resettlement" (153) bar shows that asylum's core purpose "is not to provide applicants with a broader choice of safe homelands, but rather, to protect refugees with nowhere else to turn." (154) The BIA here ignored the clear import to the contrary of the Attorney General's regulations on "firm resettlement," (155) which have the force of law and are binding on the BIA. (156) By statute, someone who meets the definition of a "refugee" is nonetheless barred from asylum or refugee admission if "firmly resettled" in another country. (157) From the earliest days of the Refugee Act, the regulations implementing this provision have been drafted in a way that clearly indicates that the possession of a second citizenship in a safe country does not preclude asylum eligibility unless the person actually travels to that country before coming to the United States. (158) The current version of the regulation provides that "[a]n alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement ... ," (159) And even if the person enters a country with rights of citizenship or is granted citizenship while there, the firm resettlement bar is inapplicable if the person can show that he or she stayed only as long as needed to arrange onward travel, and did not establish significant ties in that country. (160)
Decisions of the BIA and federal courts interpreting the firm resettlement bar have recognized that individuals holding a second citizenship in a safe country are not automatically ineligible for asylum. In Matter of Soleimani, (161) a precedential decision issued in 1989, the BIA addressed the situation of a Jewish asylum applicant who fled persecution in Iran and then lived in Israel for ten months before coming to the United States. The BIA found the evidence insufficient to prove that Israel offered her citizenship, since the government had failed to introduce the specific provisions of the Law of Return. But it went on to hold that even if Israel did confer citizenship, she merited a grant of asylum. (162) Applying the standards of the firm resettlement doctrine, the BIA concluded that her stay in Israel did not "constitute a termination of the original flight in search of refuge" because she displayed no intent to remain in Israel permanently and traveled onward to the United States within a reasonable time. (163) None of this would be relevant if acquisition of Israeli citizenship would have meant that she failed to meet the definition of a "refugee" and was thus ineligible for asylum.
In the more recent case of She v. Holder, (164) the asylum applicant, after fleeing Burma, lived in Taiwan for eighteen months and obtained Taiwanese citizenship. An immigration judge held that she was ineligible for asylum because she was a citizen of a country to which she could safely return. (165) Instead of upholding that reasoning, the BIA and a federal appeals court found that the applicant's eligibility for asylum hinged on whether she was firmly resettled before arriving in the United States. (166) The Court of Appeals, in vacating the BIA's denial of asylum on firm resettlement grounds and remanding the case for further consideration, emphasized that the acquisition of citizenship does not necessarily establish firm resettlement under the regulatory standards. (167)
If the mere fact of holding citizenship in a safe country meant that an individual could not satisfy the refugee definition-the essential prerequisite for asylum consideration-a firm resettlement doctrine that allows grants of asylum in situations where the applicant not only holds citizenship but has actually spent time in that country would make no sense. The BIA's reading of the refugee definition in Matter of B-R- cannot stand as a "reasonable" agency interpretation worthy of Chevron deference because it is fundamentally inconsistent with the Attorney General's binding regulations and prior decisions-and does not even attempt to address or explain that inconsistency. (168)
The BIA interpretation also fails to take into account that twice since the Refugee Act's passage, Congress has made amendments to the INA that apply the firm resettlement test, rather than a threshold exclusion from eligibility, to the claims of individuals who could be safe in a second country of nationality. (169) In 1990, Congress filled a gap in the coverage of the refugee definition by allowing the Attorney General to confer "temporary protected status" (TPS) on nationals of designated countries who would face danger if returned to their home states due to natural disaster or ongoing armed conflict. (170) All of the statutory bars to asylum eligibility, including firm resettlement, were made applicable to TPS, but with respect to nationality, the statute requires only a showing that the applicant "is a national of" one of the designated states. (171) The immigration agencies have recognized that under the plain statutory language, a national of a designated country is eligible, even the person also holds the nationality of another country and could be safe there, provided the person did not firmly resettle in that second country of nationality before coming to the United States. (172) If Congress had taken the view that the possession of a safe nationality made a person ineligible for asylum, it is hard to understand why it would not have placed that...