Matter of B-S-A-N- and the BIA’s abandonment of individual asylum adjudication

The Board of Immigration Appeals beclowns itself again in Matter of B-S-A-N-, 30 I&N Dec. 145 (BIA 2026). In a decision riddled with proofreading errors, it announces sweeping restrictions on asylum, withholding of removal, and protection under the Convention Against Torture that were unnecessary to decide the appeal. Its central move is to substitute a country’s international reputation for an assessment of the applicant’s evidence. The authors have violated the basic obligation of neutral adjudicators and, in doing so, attempte to jutify the wholesale denial of protection based on country of origin, facts be damned. We should all be ashamed that it has come to this.

Earlier today I was thinking about the 1987 movie RoboCop and how prescient it has become. The world keeps getting more grotesque, and everyone keeps going about their day as though this is normal. Pete Hegseth plans to livestream an execution by firing squad, and the news reports it with a straight face. In RoboCop, ads for sunscreen against a depleted ozone layer appear alongside brutal policing and ordinary consumer life. The juxtaposition is horrifying and almost comical.

Then the Board published this decision. It has a familiar caption, a panel of judges, a string of citations, and an order at the end. It carries all the trappings of normal adjudication. But inside it, people charged with applying the law announce that entire classes of applicants should lose without a merits hearing. We are supposed to absorb that as another routine development and move on. I refuse to get used to it.

The decision instructs immigration judges generally to deny asylum claims by nationals of developed democracies and typically to pretermit (that is, deny the case without a chance to put on evidence) those claims at the initial hearing. It expressly extends that approach to mandatory forms of protection, withholding of removal and Convention Against Torture relief. It then announces a separate presumption against discretionary asylum for European Union citizens because they can supposedly obtain safe haven elsewhere in the EU. And it hints that the same might be necessary for all of South America, Australia, and New Zealand. Seriously.

This rhetoric has a recent counterpart outside the Board. In September, DHS General Counsel James Percival sent AILA a letter blaming supposedly meritless asylum claims for the backlog and threatening consequences for attorneys who file them. His argument focused on migration within the Western Hemisphere; this decision targets developed democracies. Both substitute broad judgments about countries and migrants’ motives for examination of individual claims. DHS is an enforcement agency advancing its position. The Board is supposed to adjudicate whether that position is supported by the law and the evidence, not simply sing from the same hymnal. Here, the Board chooses the latter. It adopts the same premise and turns it into precedent.

An applicant’s failure to prove her own case becomes the occasion to prejudge everyone else’s. The result is a decision that confuses eligibility with discretion, treats general country conditions in one case as conclusive proof in all cases, and uses administrative convenience to excuse abandoning individual adjudication.

A failed claim becomes a rule for everyone else

The respondent is a citizen of France and Gabon who claims that Gabonese agents would pursue her in France. The Board finds insufficient evidence that those agents would target her there or that the French government would fail to protect her. France is, after all, an ally of the United States and a member of the European Union. Apparently those facts take precedence over the actual evidence in the case. Under its existing dual-nationality precedent, Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), those findings supply a basis for denying asylum.

That outcome may be defensible on the facts the opinion describes. But one applicant’s failure to establish persecution in France tells us nothing conclusive about another applicant’s risk in France, Romania, Hungary, South Korea, or any other country the Board places on its list. The Board nevertheless treats this failed claim as an illustration of why whole categories of claims should normally be denied.

Its central factual assertions are astonishing. The Board declares that there is no realistic basis for anyone to claim government persecution in the listed countries and calls proof that those governments cannot or will not protect their citizens implausible. 30 I&N Dec. at 151. A country can have elections, functioning courts, and generally effective police while failing to protect a particular person or community. In fact, there are lots of examples of that even within the EU. That possibility is why adjudicators must examine individual claims.

Administrative notice does not bridge the gap. A general observation about democratic institutions cannot establish that those institutions protect every dissident, religious minority, or other targeted person. The Board takes notice of the background and then treats the disputed conclusion as though it follows automatically.

The opinion itself acknowledges a Ninth Circuit decision finding that the Board likely erred in rejecting a Romanian applicant’s future-persecution claim. Id. at 153 n.7. It disputes the court’s analytical method. That disagreement does not supply evidence for the Board’s categorical judgments about safety.

The exception cannot excuse denying the opportunity to prove it

The Board acknowledges at page 151 that evidence in individual cases may warrant changing its safe-country classification. But then it instructs judges typically to not hear such evidence; it tells them to “pretermit” these applications before a trial can happen.

If the nationality presumption supplies the reason to cut off factual development, the promised exception becomes an empty gesture. The applicant is told that evidence might change the result while being denied the opportunity needed to establish that evidence.

The BIA’s backlog argument makes this worse and really just exposes the Board’s agenda. Every unsuccessful application consumes resources. If that alone warrants prejudging categories of claims and eliminating merits hearings, administrative convenience becomes an excuse to dispense with neutral adjudication.

The reasoning runs in a circle: presume the claims lack merit, condemn meritless claims as abuse, and invoke abuse to justify denying the hearing that would determine their merits. The Board even acknowledges that this respondent’s application may contain no false information. So why the various paragraphs about fraud and abuse? An honest application that fails on the evidence is not, merely for that reason, an abuse of the asylum process.

Democratic institutions do not make persecution impossible

So before I get into the various typos and the absolute nonsense logic of this decision, let’s take its premise at facae value. Does being an EU nation categorically mean that you can’t possibly persecute people? Of course not! Here are some examples.

The treatment of the Roma ethnic group in much of Europe provides a direct answer to the Board’s assertion that there is no realistic basis for claiming government persecution in the countries it lists. In Ciorcan and Others v. Romania, the European Court of Human Rights examined police firing rubber bullets and live ammunition in a Roma neighborhood. It found violations concerning the violence and inadequate investigations, including the failure to investigate possible racial motives. In V.C. v. Slovakia, the court found that a Roma woman’s sterilization without informed consent amounted to prohibited ill-treatment and that Slovakia had failed to provide adequate safeguards. These cases concern abuses involving state authorities in countries the Board now presumes (and directs all Immigration Juges to presume) are safe.

The Board also brushes past a particularly relevant American decision. In Lapadat v. Bondi, the Ninth Circuit held that a Romanian Roma applicant’s cumulative mistreatment, including being shot in the back, compelled a finding of harm sufficiently severe to constitute persecution. It remanded the remaining nexus and government-protection questions. The BIA mentions Lapadat in a footnote in this decision and disputes the Ninth Circuit’s disfavored-group analysis. That disagreement says absolutely nothing about the court’s separate holding about the severity of the harm.

Foreign governments also pursue dissidents inside European democracies. Le Monde’s investigation with the International Consortium of Investigative Journalists documented China’s intimidation of dissidents in France, including pressure exerted through relatives in China. In Germany, a Frankfurt court convicted two people in 2019 of spying on Sikh and Kashmiri groups for India’s intelligence service. ICIJ has separately reported on poor coordination and information gaps in European responses to China’s overseas repression.

Greece is another example. Greek reporting described police detaining four Falun Gong practitioners while they meditated in a public park ahead of Xi Jinping’s visit. The practitioners alleged Chinese Embassy involvement and said previous activities had also been canceled following embassy intervention. Ann even more concerning report from September 2026: Kathimerini reported that Greece extradited a Chinese woman claiming Falun Gong persecution despite an intervening European Court of Human Rights order seeking to halt her transfer. China alleged investment fraud; she denied it. The article reported that she had not contacted her family after removal.

Of course, historical abuses do not establish every applicant’s present risk, and I’m not arguing that every member of the Roma ethnic group therefore has a credible asylum claim. But you can’t deny every citizen of dozens of countries the opportunity to even put on evidence of persecution because you have prejudged the merits based on what country they’re from. You examine the evidence. The relevant questions remain who threatens this applicant, what harm is likely, and whether effective protection is actually available. A country’s democratic credentials cannot decide those questions in advance.

And if you look at who the agency has historically granted asylum to, the EU is not exempt! This is EOIR’s own Fiscal Year 2023 data.

Asylum discretion cannot dispose of mandatory protection

The most dangerous part of the decision is its express extension of the safe-country rule to withholding of removal and CAT at page 150. Just straight-up unlawful.

Asylum is discretionary. Withholding and CAT protection are mandatory when the applicable requirements are met, subject to the limitations governing each form of protection. A policy about whom the government wishes to grant asylum as a matter of its discretion cannot create a new nationality-based exception to its mandatory obligations concerning persecution and torture.

The Board says those forms of protection require a greater likelihood of harm. So what? A higher probability threshold does not eliminate the need to assess individual evidence. If an applicant establishes the required risk, the general reputation of the destination country does not make that risk disappear.

The opinion also mishandles the relationship between asylum and CAT. It says the respondent’s failure to establish a well-founded fear necessarily defeats CAT because torture is more severe than persecution. But CAT does not require a connection to asylum’s five protected grounds. An applicant can face torture for reasons that do not establish asylum eligibility. And an asylum applicant might fail to establish a well-founded fear because of the lack of nexus. The regulations require consideration of all evidence relevant to the possibility of future torture, no matter the reason. 8 C.F.R. § 1208.16(c)(2)–(3).

The same factual failure might defeat both claims here. Who knows. But the Board’s reasoning obscures the separate inquiry that CAT requires.

So long to the APA: Congress specified how additional asylum bars may be created

There’s a serious APA problem with this decision, too. Congress specifically authorized additional asylum eligibility limitations “by regulation,” consistent with § 208. INA § 208(b)(2)(C). The Board publishes this new, haphazard rule directing denial and pretermission based on nationality. That functions as an eligibility restriction, and the Board must explain how creating it through an appellate decision fits the mechanism Congress supplied.

The opinion invokes authority to announce policies governing asylum discretion. That argument may bear on its separate discretionary analysis of EU citizens. It does not explain the general eligibility rule or its extension to withholding and CAT. Calling a rule discretionary cannot cure its operation as a barrier to mandatory protection.

Nor would promulgating a regulation answer every objection. Congress also requires consistency with the asylum statute. Notice and comment would not itself authorize rewriting the refugee definition or adding exceptions to mandatory withholding and CAT.

There is a separate failure of reasoned decisionmaking. How do the findings about this respondent support conclusions about every applicant from dozens of countries? The Board supplies assertions where that explanation should be.

The possibility of living elsewhere does not satisfy every legal test

The EU analysis compounds these errors by treating several distinct doctrines as variations on a single proposition: the applicant could live somewhere else.

Dual nationality, internal relocation, firm resettlement, and safe-third-country agreements have different requirements. The Board cannot blend them together and disregard the conditions that make each applicable.

Internal relocation concerns another part of the applicant’s country of nationality and requires that relocation be reasonable under all the circumstances. 8 C.F.R. § 1208.13(b)(1)(i)(B). Footnote 9 omits that qualification while suggesting the principle could logically extend across the EU. The EU is not a country of nationality.

The statutory firm-resettlement bar concerns previous resettlement in another country before arrival in the United States. INA § 208(b)(2)(A)(vi). Possible future residence abroad does not, by itself, satisfy that test. Access to a safe country may matter to discretion, but it cannot silently replace the statutory requirements. They’re just flat out ignoring the law.

Even the opinion’s account of EU residence rights undercuts its premise. It identifies employment, resources, and insurance conditions, then minimizes the obstacles as administrative formalities. Those are substantive requirements. Obtaining a U.S. student visa and pursuing an asylum application does not establish that someone can obtain employment, insurance, or sufficient resources in another country.

The exception is also unclear. The opinion first contemplates proving that no other EU member state offers safe residence, then identifies national security or foreign policy as the basis for overcoming the presumption. Id. at 153–54. Is proof of actual persecution and no safe haven enough? Why should protection depend on whether helping this applicant advances a foreign-policy objective?

Footnote 11 invites similar discretionary reasoning for Mercosur residence agreements among South American nations and the Trans-Tasman arrangement between Australia and New Zealand. Taking that footnote to its logical extent, citizens of multiple continents are now simply ineligible to even ask for asylum. Because unelected bureaucrats have decided so. The EU presumption provides a model the Board is inviting judges to carry into other regions.

A decision this consequential deserved basic proofreading

I would bet dollars to donuts that they upload a new version of this decision within days, because they hit “publish” long before this decision was ready. The proofreading errors would be embarrassing in any ordinary opinion. In a precedent announcing restrictions of this magnitude, they reinforce the impression of results-oriented work rushed into publication without an ounce of care.

The internal-relocation quotation misquotes the regulation the Board is claiming to apply. More consequentially, it leaves out the reasonableness requirement written right into the regulation. A mistaken word and a missing subdivision are proofreading errors. Omitting a governing qualification while extending the rule to an entirely different geographic unit affects the legal analysis.

And then there is the “United States High Commissioner for Refugees.” The Board invokes the authority of the United Nations refugee agency while misidentifying the institution itself. Surely checking that name was not too much to ask.

The Board has prejudged the questions it must adjudicate

Page 155 ends with the ground on which the appeal could have been resolved at the outset: insufficient proof of persecution in France. Fine. Should be the end of the story. Everything else in this decision is exactly what the Board claims it has no power to provide: an advisory opinion. All courts are limited in what issues they can decide: the issues at stake before them. Everything necessary to that asylum disposition was available before the Board began its broad policy discussion. Everything else is just shadow policy-making dressed up as something else.

These authors declare entire classes of claims (which this agency has in fact repeatedly granted) implausible and instruct judges to dispose of them before merits hearings. They presume the answer their job requires them to determine. That is the concrete dereliction of adjudicative duty.

The typos are embarrassing. The substantive shortcuts can send people back to persecution or torture. Applicants deserve decisions grounded in their evidence and the governing law. This opinion falls disgracefully short of that obligation. It should be rescinded immediately.