## Facts

- Pula, a native of Albania and citizen of Yugoslavia, fled Albania as a child and lived in Yugoslavia.
- He testified that Yugoslav police repeatedly harassed him beginning in 1979 and that he feared persecution if returned to Yugoslavia or Albania.
- He arrived in the United States in 1986 using fraudulent documents and without a valid immigrant visa.
- The government charged him as excludable for fraud or willful misrepresentation of a material fact and for lacking a valid immigrant visa; he did not contest excludability.
- The immigration judge denied asylum as a matter of discretion based largely on his manner of entry, but granted withholding of deportation to Albania and Yugoslavia.
- Pula appealed the asylum denial; the government appealed the grant of withholding to Yugoslavia.

## Issues

1. When an applicant is otherwise eligible for asylum, how much weight may be placed on illegal or fraudulent entry and circumvention of “orderly refugee procedures” in the discretionary decision.
2. Whether bypassing regular refugee procedures requires a “most unusual showing of countervailing equities” for a favorable exercise of discretion.
3. Whether the grant of withholding of deportation to Yugoslavia was erroneous.

## Decision

- The BIA sustained Pula’s appeal and granted asylum as a matter of discretion.
- The BIA dismissed the government’s appeal and left in place the grant of withholding of deportation to Yugoslavia (and Albania).
- The BIA held that manner of entry and circumvention of refugee procedures are proper discretionary factors, but they must be weighed with all circumstances and cannot operate as a near-automatic bar.
- The BIA modified prior precedent to the extent it suggested that circumvention alone triggers a requirement of “most unusual” countervailing equities.

## Legal Principles

- Asylum requires both statutory eligibility and a favorable exercise of discretion; withholding of deportation is mandatory if the legal standard is met.
- An applicant’s manner of entry or attempted entry, including fraud or misrepresentation, is a relevant negative factor in asylum discretion.
- Circumvention of “orderly refugee procedures” may be a serious adverse factor, but it cannot be applied so rigidly that it effectively denies asylum in most cases.
- Circumvention of immigration laws is only one factor; adjudicators must conduct a case-specific balancing that may consider:
  - strength and seriousness of the persecution claim and humanitarian concerns, and
  - the nature and degree of fraud and any deliberate bypass of available protection in other countries.
- Bypassing refugee procedures, standing alone, does not require an applicant to make an extraordinary showing of countervailing equities.

## Conclusion

The BIA held that fraudulent or unlawful entry and bypassing refugee procedures are relevant to the discretionary grant of asylum but are not dispositive; adjudicators must balance those negative factors against the strength of the protection claim and other equities, and may not deny asylum solely or primarily on manner of entry where the overall circumstances warrant relief.


Matter of Pula, 19 I. & N. Dec. 467 (B.I.A. 1987)