On October 16, 2023, Egyptian President Abdel Fattah el-Sisi informed the United States Secretary of State that Jewish people who lived in Egypt when he was younger (Mr. El-Sisi was born in 1954) never suffered from oppression or persecution (story link). To describe that claim as questionable is an understatement. Instead of explaining the obvious, I will take the story as an opportunity to cover an interesting administrative precedent decision in U.S. immigration law. On March 28, 1966, the Board of Immigration Appeals published a decision in Matter of Salama, 11 I&N Dec. 536 (BIA 1966). The case concerned the decision of a former Immigration and Naturalization Service Special Inquiry Officer granting relief in the form of withholding of deportation under former Immigration and Nationality Act (INA) section 243(h) upon finding that the alien respondent would face persecution in Egypt on account of his Jewish religion.
The Board’s analysis, which spans a mere two paragraphs, is unusually short for a published decision – but because it is a published decision that has not been overturned, it remains precedential today. Below, I will re-print the decision and discuss the Board’s reasoning and its potential relevance in contemporary asylum and withholding of removal cases.
(Note: See my article on Matter of Man for a more concise introduction.)
The Board of Immigration Appeals is the highest administrative review body in immigration law. While it functions like an appellate court, the Board is actually part of the Executive Branch’s Department of Justice and not the Judicial Branch (Board members are appointed by the U.S. Attorney General). Today, the vast majority of cases that the Board reviews are decisions by Immigration Judges. In 1966, the Board regularly reviewed decisions by Special Inquiry Officers, who in turn rendered decisions on whether aliens were deportable or excludable under the laws in effect at the time.
The vast majority of Board decisions are unpublished, meaning they are only binding on the particular matter before the Board. However, a small number of the Board’s many decisions are published. Published Board decisions are precedential, meaning they are binding on all immigration adjudicators, and they are usually (but not always) also entitled to administrative deference by Federal appellate courts.
The first Board decision was published in 1941. Many older precedents have been effectively abrogated by changes in the law while others are long forgotten. Matter of Salama is not a particularly important precedent and it has not often been cited to since it was published in 1966. However, Matter of Salama does have some relevance to two aspects of contemporary asylum law notwithstanding the fact that it dealt with an application for a now superseded form of relief from removal called withholding of deportation under former section 243(h) of the Immigration and Nationality Act.
(I note Matter of Salama has seen more use than a 1967 decision I wrote about called Matter of Man, which to my knowledge has never been cited to subsequent to its publication).
You can read the original PDF of Matter of Salama here. Because the decision is short, I will re-print it in its entirety below with annotations and commentary.
The Board specified the charge against the alien respondent:
Act of 1962–Section 241(a)(2) [8 U.S.C. 1251(a)(2)]–Exchange Visitor–remained longer.
The respondent in Matter of Salama (presumably an alien with the last name Salama) had been charged as being deportable under former section 241(a)(2) of the INA for having overstayed his visa. The charge indicates that he had been admitted as an exchange visitor. Note that the analogous statutory provision in effect today is codified at section 237(a)(1)(B) of the Immigration and Nationality Act.
As I explained above, the Board is an appellate body. The respondent’s case was initially adjudicated by a special inquiry officer of the former Immigration and Naturalization Service. Today, his case would have been considered in Immigration Court by an Immigration Judge, but the idea is the same (note: Immigration Courts, like the Board of Immigration Appeals, are part of the Department of Justice rather than the Judiciary Branch). The Board summarized the special inquiry officer’s decision:
The special inquiry officer found respondent deportable upon the ground stated above, but under section 243(h) of the Act granted his application for withholding deportation to the United Arab Republic (Egypt).Matter of Salama, 11 I&N Dec. 536, 536 (BIA 1966)
I explained above that withholding of deportation under former section 243(h) has been replaced in the immigration laws. Today, an alien in the respondent’s position would seek relief in the form of asylum and withholding of removal. Withholding of removal is similar to former section 243(h), and the differences are well beyond the scope of today’s article. Below, I will quote from the version of former section 243(h) that was in effect in Matter of Salama – noting section 243(h) went through several revisions before it was rescinded (see page):
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion or political opinion and for such period of time as he deems to be necessary for such reason.Former section 243(h) (1970)
This version of section 243(h) applied in cases where an alien was found to be deportable from the United States. In the case of a deportable alien, the adjudicator could “withhold” deportation if he or she determined that the alien would be subject to persecution on account of race, religion, or political opinion. Withholding of deportation did not confer lawful status and was not necessarily permanent – it merely prevented the alien’s removal to a specific country where it was determined that he would be subjected to persecution on one of three specific grounds. Withholding of deportation is most similar to a modern form of relief called withholding of removal, but there are some significant differences between withholding of removal today and the withholding of deportation statute in effect when Matter of Salama was decided.
Let us return to Matter of Salama:
The special inquiry officer found that respondent, a person of the Jewish faith would be subject to persecution in the United Arab Republic because of his religion.Matter of Salama, 11 I&N Dec. 536, 536 (BIA 1966)
The special inquiry officer determined that the respondent in Matter of Salama would be persecuted in Egypt on account of his Jewish religion. After reaching that conclusion, the special inquiry officer exercised his discretion to withhold the respondent’s removal from Egypt.
How did the case reach the Board for review?
[The special inquiry officer] certified his order to the Board because the phrase ‘persecution on account of race, religion, or political opinion’ had not been construed by the Board.Matter of Salama, 11 I&N Dec. 536, 536 (BIA 1966)
Today, there is no shortage of Board precedents on the meaning of persecution on account of a protected ground (current law also includes nationality and membership in a particular social group among the protected grounds). But the broader field of asylum law in the immigration context was much earlier in its development in 1966.
Most cases reach the Board of Immigration Appeals because the losing side appeals the decision below. In this case, there was no appeal. The special inquiry officer certified the case to the Board for review because it presented an issue that the officer believed the Board could clarify in the first instance.
With the introduction concluded, the Board offered its own analysis.
We believe the special inquiry officer properly found that the record established that a government campaign of discrimination was responsible for the departure of some 37,000 Jews from Egypt since 1954, leaving only between 3,000 and 4,000, including many who are aged and ill. In addition, evidence that the Medical Association of Egypt had directed the Egyptian populace to refrain from consulting Jewish surgeons and physicians for any cause, and that Jewish professional men have been dropped from the rolls of professional societies, establishes respondent would face persecution in Egypt because of his religion.Matter of Salama, 11 I&N Dec. 536, 536 (BIA 1966)
The Board agreed with the special inquiry officer’s conclusion that the respondent should be granted withholding of deportation on account of the likelihood that he would be persecuted in Egypt on account of his religion. The Board based its decision on the record created by the special inquiry officer, who was responsible for making findings of fact. Thus, the notes and statistics about the situation in Egypt for Jews in 1966 almost certainly derived from the special inquiry officer’s factual findings. The Board offered two broad reasons for finding that the respondent – an Egyptian Jew – would be persecuted on account of being Jewish in Egypt:
- The vast majority of Jews left Egypt in the 12 years preceding the decision on account of systemic discrimination against Jews perpetrated by the Egyptian government.
- The Medical Association of Egypt effectively made it impossible for Jews to practice medicine in Egypt and other professional associations explicitly dropped Jews from their roles.
One unfortunate aspect of Matter of Salama is that there is no application of facts – here being general country conditions in Egypt – to the particular circumstances of the respondent. For example, the Board did not examine what would likely happen to the respondent in Egypt nor did it explain how the campaign of discrimination against members of the professions would specifically affect him. As I will explain further down, this sort of analysis would have potentially made Matter of Salama a much more useful economic persecution precedent than it turned out to be. With that being said, one can reasonably infer from the decision that the respondent was either a doctor or a similarly situated professional (I err on the side of guessing that he was a doctor).
Matter of Salama has been cited to a few times over the years. While it presents an interesting scenario, the decision could hardly be much shorter. As I noted above, its usefulness is limited by the Board’s decision to not apply general facts of persecution against Jews in Egypt to the particular situation of the respondent. The facts described make a compelling case that Jews in Egypt generally faced significant hardships, but it did not try to explain why the harm faced by the respondent would rise to the level of persecutory harm. To be clear, I am not opining that the result was incorrect (the Jewish population of Egypt would be reduced to almost zero not long after the publication of Salama) – only that its lack of analysis harms its value as precedent.
One may wonder why Matter of Salama was published at all given its brevity. I think that it is possible the former Immigration and Nationality Service was dealing with a significant number of similar cases from Egypt, which may have prompted the Board to publish a decision noting factors to consider in these similar cases.
Below, I examine the two key points of Matter of Salama.
Distinguishing “Discrimination” from “Persecution”
In order to be eligible for asylum or withholding of removal, an alien must establish a well-founded fear of persecution (asylum) or that he or she would more likely than not be persecuted in the future (withholding). While the question of what precisely constitutes persecution is beyond the scope of this survey, it suffices to note that “persecution is an extreme concept involving a severe level of harm that includes actions so severe that they constitute an exigent threat” (8 C.F.R. 208.1(e); 1208.1(e)). One of the most-cited passages in asylum law was written by now-Supreme Court Justice Samuel Alito when he was a Judge for the United States Court of Appeals for the Third Circuit: “‘[P]ersecution’ is an extreme concept and does not include every sort of treatment our society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993). Discrimination, without more, falls outside the ambit of “persecution.” For example, in the context of claims based on economic disadvantage, the Board has held that “[p]ersecution requires a showing of more than mere economic discrimination.” Matter of T-Z-, 24 I&N Dec. 163, 174 (BIA 2007).
The United States Court of Appeals for the Ninth Circuit cited to Salama in a 1995 precedential decision: Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995). It did so in explaining the difference between persecution and discrimination while offering Salama as a rare example of a circumstance where discrimination is sufficiently severe to constitute persecution. First, the Ninth Circuit explained the ordinary distinction: “Discrimination on the basis of race or religion, as morally reprehensible as it may be, does not ordinarily amount to ‘persecution’…” Id. Notwithstanding this general principle, the Ninth Circuit noted that “[t]he Board has held that discrimination can, in extraordinary cases, be so severe and so pervasive as to constitute ‘persecution’ within the meaning of the Act.” Id. Here, the Ninth Circuit cited only to Matter of Salama in support of this proposition. It described Matter of Salama in a parenthetical: “[G]overnment campaign causing departure of 37,000 Jews and urging boycott of Jewish doctors and dropping of Jewish professionals from professional societies constituted persecution.” Id. The Ninth Circuit cited to Ghaly, again explicitly citing to Salama for the same reason, in a 2004 precedent decision (Mansour v. Ashcroft, 390 F.3d 667, 678 (9th Cir. 2004). The United States Court of Appeals for the Second Circuit cited to Salama for the same reason in a 2008 non-precedent decision (Shved v. Mukasey, 304 F.App’x 900, 901-02 (2d Cir. 2008)).
In short, while discrimination is not ordinarily sufficient to establish persecution, there may be cases wherein discrimination is so severe that it rises to the level of persecution. The Ninth Circuit has, in two precedent decisions, explicitly cited to Matter of Salama as an example of the Board finding facts of discrimination that rose to the level of persecutory harm.
It has long been recognized that economic harm may constitute persecution. However, it is generally difficult to show that economic disadvantage constitutes persecution. I first discovered Matter of Salama while researching the issue some time ago. While Matter of Salama does belong in a broad list of decisions on the issue, I will explain below why I think its claim to being an economic persecution precedent is tenuous.
The standard for determining what constitutes economic persecution has evolved over the years. The most instructive precedent today is the Board’s 2007 decision in Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007). But Matter of T-Z- was published well after post-Salama developments in economic persecution law. Salama was published shortly after two early Board precedents on economic persecution in Matter of Eusaph, 10 I&N Dec. 453 (1964) and Matter of Vardjan, 10 I&N Dec. 567 (BIA 1965). Both Eusaph and Vardjan applied a very narrow economic persecution standard from a 1961 decision of the United States Court of Appeals for the Third Circuit in Dunat v. Hurney, 297 F.2d 744 (3d Cir. 1961). The Board described the standard in Eusaph: “It has also been judicially determined that economic persecution so severe as to deprive a person of all means of earning a livelihood may amount to physical persecution.” Matter of Eusaph, 10 I&N Dec. at 454. (Note that Vardjan applied the Dunat standard without citing directly to Dunat.)
There is no question that both 1964’s Eusaph and 1965’s Vardjan explicitly addressed economic persecution claims and applied a clear standard for adjudicating such claims in light of the particular facts of the cases. Salama does not. While the Board noted that Egypt had made it nearly impossible for Jews to practice medicine and drove other Jewish professionals from the roles, it did not explicitly examine whether the respondent would have been deprived of the ability to work in Egypt, much less apply a specific standard to a clear economic persecution claim. At most, Salama is an implicit economic persecution claim. However, the Board would later include Salama in the corpus of economic persecution claims in a later, much more significant precedent (neither Eusaph nor Vardjan have been oft-cited in precedent decisions). In 1985, the Board published Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), which is one of the most significant administrative precedents in asylum law. Matter of Salama made a cameo appearance in this proverbial landmark decision at page 222:
[Persecution] also could consist of economic deprivation or restrictions so severe that they constitute a threat to an individual’s life or freedom. See, e.g., Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961); Matter of Salama, 11 I&N Dec. 536 (BIA 1966); Matter of Eusaph, 10 I&N Dec. 453, 454 (BIA 1964).Matter of Acosta, 11 I&N Dec. 211, 222 (BIA 1985)
(Note: The Third Circuit quoted this passage in a 2005 precedent: Li v. Attorney General United States, 400 F.3d 157, 173 (3d Cir. 2005)).
The Board cited to Salama as one of three examples of the point that economic deprivation or restrictions may, in limited cases, constitute persecution. It stands out among the three examples. The first example is Dunat, which was the first circuit decision to articulate a standard for considering economic persecution. The Board often, but not always, applied the Dunat standard between 1964 and 1985. Next, the Board cited to Eusaph, which was the first of its decisions to cite to Dunat’s economic persecution standard. (For whatever it is worth, Vardjan presents more interesting facts and analysis than does Eusaph and is much more incisive than Salama, but far be it from me to tell the 1985 Board what to cite to.) Finally we have Salama, which described generalized conditions of discrimination against Jewish professionals in Egypt but, unlike Dunat and Eusaph, did not advance beyond a superficial recitation of facts.
Salama was only cited to in the specific context of economic persecution in one subsequent published decision. In 2004, the Ninth Circuit published Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004). Its citation to Salama in fact was a citation to Ghaly, but in this instance – the Ninth Circuit made clear it was concerned with economic discrimination. It described Ghaly as follows: “[D]istinguishing the isolated discrimination in that case from the widespread, state-sanctioned economic discrimination that the BIA concluded constituted persecution in Matter of Salama…” Id. at 937. While this is only vaguely distinguishable from Ghaly, it is distinguishable. Ghaly’s fuller description of Salama noted that the Board also described most Egyptian Jews having left or fled from Egypt during a 12-year period, leaving behind only “between 3,000 and 4,000, including many who are aged and ill.” While one could venture that the Board understood this flight to be a result of economic discrimination alone, that is not clear from the text of Salama. Accordingly, it is not clear that the Board in Salama meant to hold that the state-led economic discrimination alone constituted persecution.
I conclude with another non-precedent Second Circuit decision in Vafaev v. Mukasey, 298 F.App’x 51 (2d Cir. 2008), to illustrate my distinction above. Here, the Second Circuit distinguished the following scenario from Salama: “We cannot find that being unemployed for eleven months and having to live off his savings amounts to persecution.” The Second Circuit read Salama as holding that employment discrimination could constitute persecution in some cases, but distinguished Vafaev in that the severity of economic harm fell well short of what was described in Salama. Of course – this decision inadvertently highlights Salama’s deficiency of facts. The Board did not examine whether the respondent in Salama would have been able to make a life for himself in Egypt even if he could not engage in his profession. This lack of analysis in Salama leads me to suspect that the Board was not relying solely on the prospect of economic harm in finding that the respondent would be persecuted in Egypt – thus supporting the description of the decision in Ghaly.
The Board almost certainly reached the correct result in Matter of Salama based on Egypt’s systemic discrimination against Jews leading up to 1966, and the Board’s result has aged well in light of subsequent events in Egypt. Notwithstanding the correct result, however, Matter of Salama’s value as a precedent decision is minimal due to the Board declining to go further than recounting some of the conclusory facts that the special inquiry officer relied upon in granting withholding of deportation.
Despite its limitations, Matter of Salama remains good law since it has never been overruled and the issues involved in withholding of deportation are similar enough to modern asylum and withholding of removal law for the decision to remain applicable. There are a few scenarios wherein Matter of Salama may be worth citing to in contemporary briefs and opinions.
While it is impossible to discern from Matter of Salama itself how the Board (much less the special inquiry officer) weighed different problems in Egypt for Jews in reaching its conclusion, the most on-point citation to Matter of Salama recognizes that it described general conditions which were significant enough to lead most Egyptian Jews to leave Egypt as well as economic discrimination against Jewish professionals in Egypt who were precluded by the government from engaging in their professions. In cases where persons having a specific protected characteristic are forced to leave a country due to government-level policies and subjected to specific forms of economic discrimination, Matter of Salama is an on-point precedent.
One could stretch Matter of Salama to apply it to pattern or practice claims – that is, claims that discrimination against persons sharing the applicant’s protected characteristic is so pervasive in the applicant’s home country that he or she has a well-founded fear of future persecution without needing to establish a reasonable probability that he or she would be singled out individually for persecution (8 C.F.R. 1208.13(b)(2)(iii)). To be clear, I do not think Salama was strictly a pattern or practice case because I believe the Board did strongly imply that the respondent, a member of a profession, would be singled out for economic harm in addition to facing generally poor conditions for Jews in Egypt. But Salama’s sweeping description of conditions for Egyptian Jews presents the kinds of facts that may be similar to many pattern or practice claims.
While I question the useful significance of Matter of Salama as a strict economic persecution precedent, no less an authority than the Board itself – in one of its most important asylum precedents – recognized it as one. To the extent that Matter of Salama can be read this way, I think it has some citation value in cases where a professional such as a doctor or someone similarly situated is subjected to economic disadvantage on account of a protected characteristic. Many, if not most economic persecution precedents involve asylum and withholding applicants who are unsurprisingly not similarly situated in a professional sense to the respondent in Salama (again inferring that he was probably a doctor or at least a similarly situated professional). Thus, when read as an economic persecution precedent, Matter of Salama does address economic harm in the context of educated professionals.