A quirk of history and a rigid legal precedent are creating an impossible dilemma for some asylum seekers in the United States. For individuals born in countries that no longer exist, like the Soviet Union, a 2013 legal decision known as Matter of B-R- can turn the quest for safety into a bewildering catch-22, forcing them to prove a fear of persecution in a “homeland” they’ve never known and that may not even recognize them as a citizen.
This issue arises for individuals who, through no choice of their own, were born in a territory that was part of a larger empire before its collapse. Consider the case of someone born in the 1980s in a Soviet Socialist Republic. As a child, their family may have moved to another part of the USSR which became their lifelong home. Decades later, after the Soviet Union has dissolved and new independent nations have formed, they are forced to flee political persecution from the country they have always known.
Upon seeking asylum in the United States, however, they are confronted with a formidable legal barrier. The U.S. Board of Immigration Appeals (BIA), based on its own precedent, Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), may deny their asylum application. This ruling requires that an asylum seeker with more than one country of nationality must demonstrate a well-founded fear of persecution in all countries of potential nationality. For these individuals, this means they must prove they would be persecuted not only in the country they fled, but also in the country of their birth—a place they may have no connection to and left as a toddler before its modern existence.
Legal advocates argue that this application of Matter of B-R- creates a legal fiction that ignores historical reality, leading to arbitrary and absurd results.
A “Homeland” That Is Not a Home
The core of the problem lies in the BIA’s interpretation of what constitutes a “country of nationality.” For many in this situation, they have no meaningful connection to the modern nation where they were born. They may not speak the language, have no family there, and have never returned since leaving as a child.
The absurdity of the situation is often underscored by a critical fact: when U.S. immigration authorities attempt to make arrangements for the individual’s potential removal, the purported country of nationality refuses to accept them. This demonstrates that the country itself does not consider the person a national, making the requirement to prove fear of persecution there a practical impossibility.
Challenging the Precedent: A Circuit Split
The legal battle over Matter of B-R- has led to a split in the U.S. federal courts. While the BIA maintains its stance, the U.S. Court of Appeals for the Second Circuit, in the case of Zepeda-Lopez v. Garland, 38 F.4th 315 (2d Cir. 2022), rejected the BIA’s interpretation.
The Second Circuit conducted a detailed analysis of the Immigration and Nationality Act (INA), the foundational U.S. immigration law. It concluded that the statute’s language, which refers to being unable or unwilling to return to “that country” (in the singular), means an asylum seeker only needs to show persecution in a single country of nationality. The court argued that the BIA’s rule in Matter of B-R- effectively reads a requirement into the law that Congress did not intend.
Asylum lawyers are now urging other federal circuits to adopt the Second Circuit’s reasoning, arguing that it aligns better with the humanitarian purpose of asylum law and avoids the illogical outcomes produced by Matter of B-R-.
The Broader Implications
These legal arguments highlight a significant challenge in asylum law: how to apply legal frameworks to the complex realities of a world where borders shift and empires collapse. The dissolution of the Soviet Union and other multi-ethnic states left millions of people living outside the newly formed nations to which they might have a “paper” nationality.
Forcing individuals into a legal limbo where they are denied protection because of a nationality that exists only in theory seems to contradict the very essence of refugee law, which is intended to provide a safe haven for those with a well-founded fear of persecution.
As courts continue to grapple with this issue, the outcomes could have far-reaching implications. A legal shift that acknowledges the unique circumstances of those born in vanished states could lead to a more just and realistic application of asylum law, ensuring that protection is not denied based on the arbitrary lines of defunct empires.
