The Board of Immigration Appeals has instructed immigration judges to generally deny asylum claims from citizens of wealthy democracies, naming 40 countries whose nationals it says do not need protection in the United States. The precedent decision, Matter of B-S-A-N-, was issued October 9 and binds every immigration court in the country.
The ruling has two parts. First, judges should deny asylum, withholding of removal, and Convention Against Torture protection to nationals of highly developed democratic countries that broadly respect human rights, unless extraordinary national security or foreign policy circumstances apply. Second, citizens of the European Union are presumptively ineligible for asylum as a matter of discretion even if they could prove persecution at home, because they have the right to live in any of the other 26 member states.
The Board said these cases can typically be pretermitted at the master calendar stage, the brief scheduling hearing that opens a removal case, without a full evidentiary hearing on the merits.
A dual French-Gabonese citizen’s case became the vehicle for a nationwide rule
The applicant was born in France to a family that moved to Gabon when she was an infant, and she holds citizenship in both countries. She entered the United States on a student visa in August 2016, did not attend school, and applied for asylum in 2018. Her claim rested on her family’s opposition to Ali Bongo, Gabon’s former president, and his party; she argued Gabonese agents would track her down in France if she lived there.
The Board found no objective evidence that French authorities would be unable or unwilling to protect her. Her two sisters have lived in France for years without harm, and the one incident she cited, a cousin whose passport was confiscated at the Gabonese embassy after a protest, did not rise to the level of persecution. The Board also noted that Bongo, whose regime she feared, was deposed in a 2023 coup and now lives in Angola.
That would have been enough to dismiss the appeal. Instead, the three-judge panel used the case to announce a general rule, writing that it illustrates the meritless nature of asylum claims from countries like France and that such claims waste scarce adjudicatory resources and delay consideration of refugees with nowhere else to go.
The Board named 40 countries and left the door open to add more
The decision spells out which countries it covers: all 27 EU member states; Iceland, Liechtenstein, Norway, and Switzerland; the microstates of Monaco, Andorra, and San Marino; and the United Kingdom, Canada, Australia, New Zealand, Japan, and South Korea. The Board described them as widely recognized for human rights protections, democratic values, peaceful transfers of power, fair justice systems, and developed economies, and took administrative notice of those facts rather than examining country-conditions evidence.
The panel acknowledged that no country is perfect and that discrimination and crime exist everywhere, including in the United States. But it reasoned that persecution requires something far beyond discrimination, and that a government with a functioning police and court system is not unable or unwilling to protect its citizens simply because it fails to solve some crimes.
The list is not fixed. The Board wrote that country conditions change and that countries may be added to or removed from the category based on significant governmental changes or other developments affecting human rights, and that evidence in individual cases could warrant either. In a footnote, it also suggested judges may consider similar regional residence arrangements outside Europe, pointing to the Mercosur Residence Agreement in South America and the travel arrangement between Australia and New Zealand.
The EU presumption rests on the bloc’s free-movement rules. The Board noted that EU law requires member states to admit each other’s citizens with a valid ID and grants indefinite residence to anyone who is working, studying, or self-supporting, with permanent residence after five years.
The decision caps a run of precedents narrowing asylum, and sets up a circuit clash
B-S-A-N- is the latest in an unusually fast series of published BIA decisions this fall. On September 29, Matter of G-R-B- held that judges may pretermit asylum applications on their own, without a motion from DHS. Earlier precedents this year limited cross-examination of government evidence, treated return to a home country on advance parole as abandonment of an asylum claim, and tightened what counts as past persecution. The pretermission line traces back to Matter of H-A-A-V-, a 2025 decision that first authorized judges to dismiss claims that fail to show prima facie eligibility.
The Board also took aim at the Ninth Circuit. In a footnote, it rejected that court’s “disfavored group” standard, which lowered the burden for members of persecuted minorities, and sided with the First, Third, Seventh, and Eleventh Circuits in calling it inconsistent with the statute. The Ninth Circuit applied that standard last year in Lapadat v. Bondi to find a Romanian applicant likely had a reasonable fear of return. Because Romania is an EU member now on the safe list, applicants in the Ninth Circuit, which covers California and eight other western states, may have stronger grounds to challenge the new rule on appeal.
Two limits are worth noting. The ruling does not bar asylum from the listed countries outright; it creates a strong presumption against it. And it says nothing about removal to third countries, which is governed by separate precedents including Matter of A-C-M- earlier this year.
What this means for immigrants
If you are a citizen of any of the 40 listed countries and have a pending asylum case, expect the government to move to dismiss it, or the judge to do so on their own, at your next hearing. The ruling applies to cases already in the system, not just new filings.
Dual nationals are affected even if their fear concerns the other country: a second passport from a listed country means you must prove you would be unsafe there too.
EU citizens face the highest bar, and realistically asylum is now close to foreclosed for them.
The practical steps are to talk to an immigration attorney now rather than waiting for your hearing, and to ask about other forms of relief that this decision does not touch, such as family-based petitions, U or T visas for crime and trafficking victims, or cancellation of removal if you have been here long enough. If your case is in the Ninth Circuit, ask specifically about preserving the Lapadat argument for appeal. If you are from a country not on the list, this ruling does not apply to you. But the broader trend toward pretermission means any asylum application should be as complete and well-documented as possible from the start, because the written filing may be your only chance to make the case.