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Immigration Appeals Board Tells Judges to Deny Asylum to Nationals of “Safe” Democracies, Including All EU Citizens
On October 9, 2026, the Board of Immigration Appeals (BIA), the Justice Department’s top immigration appeals tribunal, issued a precedent decision that could change who gets a full hearing in U.S. immigration court. In Matter of B-S-A-N-, the Board told immigration judges to generally deny asylum applications from nationals of highly developed democracies. It also held that European Union citizens are “presumptively ineligible for a discretionary grant of asylum” (BIA, Matter of B-S-A-N-). Because the decision is a published precedent, it binds immigration judges nationwide. As always, here, our EB1A consultants have dived deep into this important news and all the nuances associated with the precedent.
The case behind the ruling
The respondent, identified only by initials under asylum-confidentiality rules, was born in France and holds both French and Gabonese citizenship. She entered the United States in August 2016 as a student but did not attend school as required. She applied for asylum about two years later, and the Department of Homeland Security placed her in removal proceedings in July 2019. An immigration judge denied her applications in July 2022.
She said she feared agents of Gabon’s government tied to former president Ali Bongo’s party, who she claimed could find and harm her in France. The Board found she had not explained how diplomatic and economic ties between the two countries would let Gabonese officials target her there. It held that the seizure of her cousin’s passport did not amount to persecution as a matter of law, and it noted that her two sisters have lived unharmed in France for years. It ordered her removal to France.
Two new rules that emerged
The Board then went well beyond her facts. First, it directed judges to generally deny asylum to nationals of highly developed, democratic countries that broadly respect human rights. The only exception is for extraordinary circumstances involving national security or foreign policy. Judges may typically deny such applications at the first procedural hearing, before any testimony is heard. The Board said the same approach applies to withholding of removal and Convention Against Torture claims, because those require a greater likelihood of harm.
Second, EU citizens cannot receive asylum as a matter of discretion unless they show they cannot safely live in any of the other 26 member states. The reasoning rests on the EU’s free-movement rights, which let citizens reside across the bloc. Fayad Law summarizes the effect for EU nationals as “two hurdles instead of one.”
The named countries total roughly 40. They are all 27 EU members: Iceland, Liechtenstein, Norway, Switzerland, Monaco, Andorra, San Marino, the United Kingdom, Canada, Australia, New Zealand, Japan and South Korea. The Board said the list can change if conditions in a country change.
The case in favor
Andrew Arthur of the Center for Immigration Studies, a think tank that describes itself as “low-immigration,” welcomed the ruling. He called it a response to “a glaringly obvious abuse of our generous asylum system” and asked why it took so long.
His evidence comes from the Justice Department’s fiscal 2023 data, the most recent year it published by nationality. Immigration judges decided 94 asylum applications from Poland, 14 from Hungary, 10 from Spain and seven each from Germany, Japan and the Czech Republic. None was granted, and none was denied. Arthur reads that as a sign the applicants received voluntary departure and filed simply to extend unlawful stays. That is his inference, not an official finding. The Board itself said meritless claims waste scarce resources and delay bona fide refugees’ cases.
The case against
Luis Cortes Romero of Novo Legal Group sees something broader. He says the decision creates a categorical bar for a defined set of countries without the statutory or treaty basis that has traditionally supported “safe third country” rules. He also notes that its tone is “markedly more charged than typical BIA precedent”.
He argues the list masks real differences. He points to democratic backsliding in Hungary, which Freedom House downgraded to “partly free” in 2019, and to persecution of Roma communities in Romania and Bulgaria. In practice, he says, a strong presumption plus early denial means the evidence that could overcome it may never be developed, because the case ends before any merits hearing.
The decision also rejects the Ninth Circuit’s 2025 ruling in Lapadat v. Bondi, which had applied “disfavored group” analysis to Romanian Roma applicants, and sides with four other circuits. Cortes Romero expects litigation over that split. He counts the ruling as the twentieth precedent in a series moving the law in the government’s direction.
Who is going to be affected by the ruling
The ruling reaches dual nationals, who must already show fear in every country of nationality. CiberCuba notes that Cubans holding Spanish passports may be affected, since DHS could argue they must show persecution in Spain as well. Cortes Romero adds that the Board’s reasoning could extend to other residence agreements, including the Mercosur arrangement and the Trans-Tasman Travel Arrangement between Australia and New Zealand.
What remains unsettled
The decision is not an absolute ban. The exceptions exist, but how broadly judges will apply them has not been tested. The ruling does not change the statutory definition of a refugee, and it does not directly affect other forms of relief, such as cancellation of removal, U visas, T visas or VAWA petitions. Federal courts of appeals can review individual cases, and the split with the Ninth Circuit may reach them first.
At GCEB1, our EB-1A experts are closely tracking all emerging policies in the US immigration landscape. Get in touch with us if you are looking for personalized mentorship into the legal immigration pathways. We wish you a safe and stress free immigration journey ahead.
Frequently Asked Questions
1. What did the BIA decide?
In Matter of B-S-A-N- (October 9, 2026), it ruled that judges should generally deny asylum to nationals of highly developed democracies and that EU citizens are presumptively ineligible for discretionary asylum.
2. Who was the respondent?
A dual French-Gabonese citizen who entered as a student in 2016 and whose claims were denied.
3. Which countries are covered?
About 40, including all 27 EU states, four European associates, three microstates, the U.K., Canada, Australia, New Zealand, Japan and South Korea.
4. Is asylum now banned for these nationals?
No. The rule is a strong presumption with exceptions for extraordinary national-security or foreign-policy circumstances.
5. What is pretermission?
Denial of an application without a full hearing, typically at the first procedural hearing.
6. Does it affect withholding of removal and torture-convention claims?
Yes. The Board said the same approach applies to both.
7. What about dual citizens?
They must show fear in every country of nationality, and citizenship in a listed country makes that harder.
8. Can it be challenged?
Yes. Individual cases can be appealed to federal courts, and a conflict with the Ninth Circuit may invite review.
9. Does it affect other immigration relief?
No. Cancellation of removal, U visas, T visas and VAWA petitions follow their own rules.
Sources & Further Readings
- Arthur, Andrew R. “BIA: EU Citizens and Nationals of ‘Safe Countries’ Are ‘Presumptively Ineligible’ for Asylum.” Center for Immigration Studies, October 13, 2026. https://cis.org/Arthur/BIA-EU-Citizens-and-Nationals-Safe-Countries-Are-Presumptively-Ineligible-Asylum.
- Board of Immigration Appeals. Matter of B-S-A-N-, 30 I&N Dec. 145 (BIA 2026). Interim Decision #4259. Decided October 9, 2026. U.S. Department of Justice, Executive Office for Immigration Review. https://www.justice.gov/eoir/media/1465281/dl?inline.
- CiberCuba. “New Decision by the BIA Complicates Asylum in the U.S. for EU Citizens: What It Means for Cubans with Spanish Passports.” October 10, 2026. https://en.cibercuba.com/noticias/2026-10-10-u1-e199370-s27061-nid342510-nueva-decision-bia-dificulta-asilo-eeuu-ciudadanos.
- Cortes Romero, Luis. “Matter of B-S-A-N- Explained: BIA Creates a ‘Safe Countries’ List.” Novo Legal Group, October 9, 2026. https://www.novo-legal.com/en/blog/bia-matter-b-s-a-n-safe-countries-asylum-presumption.
- Fayad Law. “New BIA Asylum Ruling: Matter of B-S-A-N- Explained.” October 13, 2026. https://fayadlaw.com/2026/10/13/bia-asylum-ruling-matter-of-b-s-a-n/.
