Status as of October 10, 2026. The Board of Immigration Appeals issued Matter of B-S-A-N-, 30 I&N Dec. 145 (BIA 2026), on October 9. The precedential decision directs immigration judges to generally deny asylum claims from nationals of 40 developed democracies, including EU member states, Canada and the United Kingdom. It also allows qualifying claims to be rejected before a full merits hearing and establishes a separate presumption against discretionary asylum grants for EU citizens. The decision does not prohibit people from filing asylum applications.

The Board of Immigration Appeals (BIA) has adopted a broad new approach to asylum applications from citizens of countries it considers highly developed democracies with effective human-rights protections.

In Matter of B-S-A-N-, decided October 9, 2026, the Board instructed immigration judges to generally deny asylum applications from nationals of these countries, except in extraordinary circumstances involving national security or foreign policy.

The decision goes beyond the individual case before the Board. It identifies countries covered by the rule, addresses the possibility of dismissing applications before a full individual hearing, and establishes an additional obstacle for European Union citizens who can safely reside elsewhere in the EU.

What the new BIA decision establishes

The ruling rests on the Board's conclusion that highly developed democratic countries generally have functioning legal systems and government institutions capable of protecting their citizens from persecution.

Under U.S. asylum law, persecution may be inflicted directly by a government or by private actors whom the government is unable or unwilling to control. The BIA reasoned that applicants from the identified countries ordinarily cannot establish a lack of government protection merely by pointing to criminal violence, discrimination or failures by police to prevent individual incidents.

The decision establishes three principal consequences:

  • General denial of asylum: Immigration judges should generally deny applications from nationals of the identified countries, subject to the exceptions described in the ruling.
  • Early disposition: Judges may ordinarily pretermit applications at the master-calendar stage when applicants fail to establish prima facie eligibility.
  • Additional EU restriction: EU citizens face a separate presumption against receiving asylum as a matter of discretion because they have legal rights to move and reside in other EU countries.

The ruling is a published BIA precedent, rather than a policy announcement or proposed regulation. Immigration judges are generally required to follow precedential BIA decisions, subject to controlling federal court decisions and subsequent legal developments.

Which countries are covered?

The BIA identified 40 countries in its October 9 decision.

All 27 European Union member states:

  • Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia and Denmark;
  • Estonia, Finland, France, Germany, Greece, Hungary and Ireland;
  • Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands and Poland;
  • Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

Other European countries:

  • Iceland, Liechtenstein, Norway and Switzerland;
  • Monaco, Andorra and San Marino;
  • The United Kingdom.

Countries outside Europe:

  • Canada;
  • Australia and New Zealand;
  • Japan and South Korea.

The Board described these countries as having established democratic institutions, developed economies, effective judicial systems and extensive protections for individual rights.

The list is not necessarily permanent. The decision expressly recognizes that conditions within a country can change. Significant governmental changes or developments affecting human rights may justify adding or removing countries from the category. The Board also acknowledged that country-conditions evidence presented in an individual proceeding may affect that assessment.

Asylum applications may be rejected before a full hearing

One of the most consequential parts of the ruling concerns how immigration judges handle these applications.

The BIA said judges may generally pretermit asylum claims from nationals of the identified countries, ordinarily at the master-calendar stage, absent the extraordinary circumstances described in the decision.

Pretermission means resolving an application without proceeding to a full evidentiary hearing on its merits. The Board relied on Matter of H-A-A-V-, 29 I&N Dec. 233 (BIA 2025), which addresses pretermission when an applicant fails to establish prima facie eligibility for relief.

For affected applicants, the practical consequence is that a case may end before the applicant reaches the individual hearing at which testimony and supporting evidence would otherwise be presented in full.

The decision does not, however, impose a statutory prohibition on filing Form I-589. Section 208(a)(1) of the Immigration and Nationality Act permits a noncitizen who is physically present in the United States or arrives in the country to apply for asylum, subject to the law's applicable restrictions and exceptions.

The new precedent concerns how judges evaluate and dispose of claims. It does not eliminate the statutory application process.

Why the BIA considers government protection decisive

The Board distinguished persecution from ordinary criminal activity, discrimination and failures of law enforcement.

Under the legal standard discussed in the decision, a government's inability to prevent every criminal act does not necessarily establish that it is unable or unwilling to protect someone from persecution.

The BIA reasoned that effective police and judicial institutions in the listed countries generally provide citizens with avenues for protection. It concluded that applicants cannot establish eligibility simply because authorities failed to prevent or successfully investigate particular incidents.

This reasoning places substantial importance on objective evidence concerning both the applicant's personal circumstances and the ability or willingness of authorities to provide protection.

At the same time, the Board recognized that conditions are not identical across all countries or permanently fixed. Its discussion of changes in country conditions leaves room for evidence that challenges the classification of a country under the new approach.

European Union citizens face an additional asylum presumption

The BIA established a separate rule concerning discretionary asylum grants for citizens of the European Union.

Even when an EU citizen could establish a well-founded fear of persecution in the person's own country, the Board concluded that asylum generally should not be granted as a matter of discretion if the person can safely reside in another EU member state.

The decision states that an EU citizen would need to show an inability to reside safely in any of the other 26 EU member states to overcome this obstacle on that basis.

The Board relied on EU freedom-of-movement and residence rules, including Directive 2004/38/EC. These rules permit EU citizens to move between member states and establish lawful residence, subject to conditions that may include employment, self-employment, sufficient resources, health insurance or education.

The decision does not treat residence requirements as nonexistent. Instead, it considers the legal opportunities available within the EU when evaluating whether an applicant needs protection in the United States.

The BIA also expressly stated that national-security or foreign-policy considerations may overcome the discretionary presumption.

In a footnote, the Board observed that immigration judges may consider other international residence arrangements when making discretionary asylum decisions involving non-EU nationals. It mentioned the Mercosur Residence Agreement in South America and the Trans-Tasman Travel Arrangement between Australia and New Zealand. The decision did not establish the same EU-specific presumption for every person covered by those arrangements.

Does the ruling also affect withholding of removal and CAT protection?

Yes. The BIA expressly stated that its holding also applies to statutory withholding of removal and protection under the Convention Against Torture (CAT).

The Board reasoned that these forms of protection require a higher likelihood of harm than the well-founded-fear standard for asylum. CAT protection additionally requires torture involving public officials or the legally required level of official consent or acquiescence.

There is an important distinction between the forms of relief.

Asylum is discretionary even when an applicant otherwise establishes statutory eligibility. Statutory withholding of removal and CAT protection have separate legal requirements and are not subject to the same discretionary asylum analysis.

Consequently, a discretionary denial of asylum does not, by itself, dispose of every possible withholding or CAT claim. Those protections must be considered under their governing legal standards.

The BIA nevertheless made clear that its reasoning about government protection and the likelihood of harm is intended to reach all three forms of protection.

The case behind Matter of B-S-A-N-

The precedent arose from the asylum proceedings of a woman who holds citizenship in both France and Gabon.

She entered the United States in August 2016 as an F-1 student. She filed an asylum application with USCIS in July 2018 and was placed in removal proceedings in July 2019.

Her claim concerned political opposition to the former Gabonese president, Ali Bongo, and his Gabonese Democratic Party. She alleged that individuals associated with the Gabonese government could locate and harm her in France because of her family's political activities.

The BIA concluded that she had not established an objectively reasonable fear of persecution in France.

The Board identified several weaknesses in the evidence:

  • She had not provided persuasive objective evidence that the alleged Gabonese agents would be willing and able to target her in France.
  • She had not demonstrated that French authorities would be unable or unwilling to protect her.
  • Her two sisters had lived in France for years without harm, despite allegedly sharing the family's perceived political opposition.

The Board also considered her ability to reside in other EU countries. She had not established that she would be unable to satisfy applicable residence requirements or live safely elsewhere in the European Union.

It concluded that she was ineligible for asylum and related protection from removal to France and that she did not merit a discretionary grant of asylum. Her appeal was dismissed.

The Board did not separately decide her eligibility for withholding of removal to Gabon because France was the only country of removal designated in the proceedings.

Dual citizenship and an existing conflict in federal court decisions

The respondent's dual citizenship is an important part of the case.

In reaching its decision, the BIA relied on Matter of B-R-, 26 I&N Dec. 119 (BIA 2013), which requires a dual national to establish a qualifying fear of persecution and lack of protection in each country of nationality to qualify as a refugee.

That position is not uniformly accepted by federal appellate courts.

In Zepeda-Lopez v. Garland, 38 F.4th 315 (2d Cir. 2022), the U.S. Court of Appeals for the Second Circuit rejected the BIA's interpretation in Matter of B-R-. The court held that a dual national may satisfy the statutory refugee definition by establishing persecution in one country of nationality, rather than every country of nationality.

The Second Circuit's ruling does not mean that an applicant automatically receives asylum. Statutory restrictions, other eligibility requirements and the discretionary asylum determination remain relevant.

The distinction matters because controlling federal appellate precedent can affect how immigration courts apply BIA decisions within a particular judicial circuit.

Matter of B-S-A-N- does not resolve that disagreement. Its treatment of dual nationality must therefore be read alongside applicable federal court decisions.

What the decision means for applicants from countries outside the list

Russia and Ukraine are not included among the 40 countries identified in Matter of B-S-A-N-.

The October 9 decision does not establish the same developed-democracy presumption for Russian or Ukrainian nationals solely on the basis of their nationality.

For applicants who hold more than one citizenship, however, the analysis may be more complicated. Citizenship in one of the listed countries can raise questions concerning available government protection, dual nationality and the legal standards applicable in the relevant federal judicial circuit.

The ruling also does not eliminate the ordinary asylum requirements for applicants from countries outside the list. They must still establish eligibility under the Immigration and Nationality Act and applicable regulations.

Can the decision be challenged or changed?

Matter of B-S-A-N- is a precedential agency decision, but that does not place it beyond federal judicial review.

The respondent may seek review in a federal court of appeals through a timely petition for review, subject to the applicable statutory requirements. The filing of a petition does not automatically suspend the legal effect of a removal order or the precedential force of the BIA decision.

Federal courts may also encounter legal questions arising from the precedent in other cases. Their rulings may affect the application of BIA precedent within the relevant jurisdictions.

Separately, the BIA expressly recognized that changes in human-rights conditions could affect which countries fall within the category identified in the decision.

As of October 10, 2026, the published decision establishes the BIA's new precedential approach. Its broader application will depend on individual proceedings, controlling judicial precedent and any subsequent legal developments.

Frequently asked questions

Does Matter of B-S-A-N- prohibit citizens of the listed countries from applying for asylum?

No. The decision does not prohibit filing an asylum application. It directs immigration judges to generally deny claims from nationals of the identified countries and permits pretermission when an applicant fails to establish prima facie eligibility, subject to the decision's qualifications and controlling law.

Which countries are affected by the BIA ruling?

The decision identifies all 27 EU member states, Iceland, Liechtenstein, Norway, Switzerland, Monaco, Andorra, San Marino, the United Kingdom, Canada, Australia, New Zealand, Japan and South Korea. The BIA also recognizes that the list may change if country conditions change.

Can an EU citizen still receive asylum in the United States?

The BIA established a presumption against discretionary asylum grants to EU citizens. It states that an applicant would need to demonstrate an inability to reside safely in any of the other 26 EU member states to overcome that obstacle on safety grounds. National-security or foreign-policy considerations may also overcome the presumption.

Does the ruling apply to Russian and Ukrainian citizens?

Russia and Ukraine are not among the 40 countries identified in the decision. The ruling does not apply its developed-democracy presumption to those nationalities merely because of citizenship. Dual nationality involving a listed country may require a separate legal analysis.

Official sources

Disclaimer: Factum Immigration provides general information, not legal advice. For guidance on an individual case, consult a licensed immigration attorney.