USCIS Issues Policy Alert on Procedures for Terminating Asylum Status

प्रकाशित मिति : भाद्र ८, २०७७ सोमबार

USCIS  issued policy guidance in the USCIS Policy Manual to update and clarify the procedures USCIS officers follow when termination of asylum status is considered in relation to adjudicating an asylum-based adjustment of status application. The policy is effective on August 21, 2020.

‘Asylum may be granted to those who meet the definition of a refugee and are physically present in the United States when seeking asylum status.However, a grant of asylum does not convey a right to remain permanently in the United States. The law provides certain grounds for termination of asylum status, such as when the alien no longer meets the definition of a refugee,’ USCIS policy guidance defines.

‘An officer adjudicating an asylee’s adjustment of status application may identify a basis for terminating asylum status. This update provides more detailed guidance on the process by which USCIS terminates asylum status in relation to the consideration of an adjustment of status application. The guidance, contained in Volume 7 of the Policy Manual, is controlling and supersedes any prior guidance on the topic,’ the policy guidance reads.

Policy clarifies current termination procedures, including that USCIS may terminate asylum status if USCIS or legacy Immigration and Naturalization Services granted asylum status, and outlines how officers should handle termination cases for aliens residing in the Ninth Circuit.

Termination Procedures

USCIS may initiate termination of asylum status if USCIS or legacy Immigration and Naturalization Services (INS) initially granted the status. USCIS may not terminate asylum status granted by an immigration judge (IJ) or the Board of Immigration Appeals (BIA). If an officer determines that termination may be appropriate in a case where USCIS or legacy INS granted asylum, the officer should forward the case to the asylum office with jurisdiction before adjudicating the adjustment of status application. Jurisdiction is based on the current residence of the alien, regardless of which USCIS office or legacy INS office originally granted asylum status.

In all but the Ninth Circuit (discussed below), the asylum office must provide the alien with written notice before USCIS terminates the alien’s asylum status and any related employment authorization. The written notice is called a Notice of Intent to Terminate (NOIT). The NOIT presents the termination ground(s) under consideration, provides a brief summary of the evidence supporting the grounds for termination, and notifies the alien that he or she will have an opportunity to rebut the termination grounds during a scheduled termination interview at an asylum office or a hearing before an IJ. The NOIT must contain prima facie evidence supporting the termination ground(s).

The alien must be given at least 30 days to respond to the NOIT and present evidence that he or she is still eligible for asylum. After considering the evidence, including the alien’s response, lack of a response, or failure to appear, if the asylum office determines that one or more grounds of termination have  been established by a preponderance of the evidence, the asylum office issues a Notice of Termination (NOT) and a Notice to Appear (NTA).

Upon termination of asylum status, USCIS denies the pending adjustment application. The adjustment of status denial must set forth the reason(s) for the denial. There is no appeal from the denial of the adjustment of status application, but the alien may renew the application for adjustment in his or her removal proceedings before the immigration court.

Alternatively, at the discretion of an Asylum Office Director, the asylum office may issue a NOIT with an NTA, referring the termination of asylum status to U.S. Immigration and Customs Enforcement (ICE) to pursue in removal proceedings. At any time after the alien is issued a NOIT and an NTA, an IJ may terminate asylum granted by USCIS or legacy INS at a termination hearing held in conjunction with removal proceedings. When a NOIT and NTA have been filed with the immigration court before the adjustment of status application is adjudicated, USCIS may deny the pending adjustment application for lack of jurisdiction. The alien may file an adjustment application in removal proceedings.

Asylees Residing in the Ninth Circuit

In Nijjar v. Holder, the Ninth Circuit Court of Appeals determined that USCIS cannot terminate asylum for aliens residing within the jurisdiction of the Ninth Circuit. Rather, the asylum office issues a NOIT with an NTA, referring the termination of asylum status to ICE to pursue in removal proceedings. If the alien does not reside in the Ninth Circuit, the officer should forward the case to the asylum office with jurisdiction over the alien’s current residential address for termination review.

Derivative Asylees

Termination of asylum status for a principal asylee also results in termination of any derivative’s asylum status, if the derivative asylee has not yet adjusted to lawful permanent resident (LPR) status. If USCIS issues a NOIT to a principal asylee, the NOIT also includes any derivative asylees who have not yet adjusted status.

USCIS may terminate the asylum status of a derivative asylee who has not adjusted status and whose asylum status was granted by USCIS, even if the principal asylee was granted asylum by an IJ or the BIA, so long as there is an independent ground to terminate the derivative’s asylum status. If it is a derivative asylee who is subject to termination, and not the principal asylee, USCIS includes only the derivative asylee in the NOIT. When the grounds for termination apply to only a derivative asylee, the derivative asylum status is terminated without effect on the principal asylee’s status.

Post-Adjustment Actions

If an alien adjusted to LPR status and an officer later determines there is evidence that an asylum termination ground or related inadmissibility ground applied before the adjustment occurred, USCIS may take steps to rescind the alien’s permanent resident status (if within 5 years of adjustment) or issue an NTA.

USCIS may not terminate asylum status granted by an IJ since jurisdiction rests with the immigration court. To initiate termination of asylum in these cases, ICE must file a motion to reopen proceedings before the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR).

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