dissenting.
I respectfully dissent. In my opinion, the decision of the BIA that the Palavras are Croatian citizens or nationals is supported by substantial evidence in the record and should be affirmed.
The court’s decision today remands this case to the BIA for reconsideration after concluding that the BIA failed to consider significant portions of the record. I respectfully disagree with the court’s view of the record. The only evidence that this court indicates the BIA overlooked was *695one affidavit by the father. This affidavit was not presented at the hearing before the immigration judge. Instead, it was subsequently attached to a motion to reconsider filed before the immigration judge and to a motion for remand submitted to the BIA, without any assertion that the affidavit contained new evidence that could not have been discovered or presented at the hearing, as required by federal regulations. See 8 C.F.R. § 3.2 (1994) (stating a motion to reopen for additional evidence filed with the BIA must state new facts that were not available and could not have been discovered at the former hearing); 8 C.F.R. § 108.5(a)(3) (1994) (stating a motion to reconsider filed with the immigration court must state the reasons for reconsideration and be supported by pertinent precedent decisions). The motions in this case asserted that the immigration judge misapplied the law and refused to hear evidence on the asylum claim.
Substantively, the father’s affidavit asserts that he and his family were born in Bosnia, lived there all of their fives, and owe no duty of loyalty or allegiance to Croatia. He also explained that he sent his daughter to Croatia where she obtained the Croatian passports from a government official. The affidavit does not assert that the daughter lied about her citizenship or nationality in order to obtain the passports. Although the family resided in what is now called Bosnia and was unable to obtain a passport from the new Bosnian government, the affidavit does not, in my opinion, provide evidence demonstrating that the Croatian passports indicate something less than full Croatian citizenship, as the court finds today. The assertions in the affidavit, even when taken as true, simply are not sufficient to rebut the presumption of citizenship created by the Croatian passports and the family’s own admissions of Croatian citizenship.
The record is replete with instances of statements by the Palavras that they are ethnic Croatians and are either Croatian nationals or citizens, though they also indicate that they were born in and resided in what is now Bosnia. Most specifically, in their applications for asylum, both the father and mother state independently that their spouse and children are “citizens” of Croatia. (Petitioners’ App. at 6, 10.) A person can possess dual nationality or dual citizenship. The affidavit’s assertion that the family resided in what is now Bosnia and has no family or friends in Croatia no doubt establishes significant ties to Bosnia, but does nothing to rebut their Croatian citizenship as evidenced by the lawfully obtained valid passports and their own admissions.
Accordingly, I would affirm the BIA’s decision that the Palavras are Croatian citizens or nationals as supported by substantial evidence in the whole record. In fight of that conclusion, I would also find no abuse of discretion in the INS’s refusal to consider the Palavras’ petition for asylum from Bosnia. The possible fact of dual nationalism or citizenship does not prevent the INS from deporting the Palav-ras to the country that issued them valid passports and to which the family expresses no fear of returning. See Wong v. Ilchert, 998 F.2d 661, 663 (9th Cir.1993).