quick reference chart and notes for determining immigration - ILRC

California Quick Reference Chart and Notes
February 2010
4. The Refugee or Asylee Defendant, or the Applicant for Asylum
a. Who is a Refugee or Asylee, or an Asylum Applicant?
Both refugees and asylees have been granted lawful immigration status because they have
established that they would suffer or have suffered persecution in their country of origin.
Refugees receive refugee status abroad before relocating to the U.S. An asylee is someone who
came to the U.S. and received asylee status here.
An asylum applicant is a person who has entered the United States, whether admitted or not,
and who has applied for asylum. With some exceptions, an asylum applicant must file the
application within one year of entering the United States. The person may apply affirmatively
by filing an application, or assert an asylum application as a defense to removal.
b. What Are Defense Priorities?
Persons who have applied, or may want to apply, for asylum. Counsel may encounter a
noncitizen defendant who has applied for asylum, or who is planning to apply. An applicant for
asylum is barred if convicted of a “particularly serious crime,” which for asylum purposes
includes any aggravated felony. “Particularly serious crime” also includes other offenses
considered on a case-by-case basis, based upon sentence, circumstances, whether it involves a
threat to persons, etc., 21 and a drug-trafficking offense always will be held a particularly serious
crime. In addition, an application for asylum will almost certainly be denied as a matter of
discretion if the applicant is convicted of a “violent or dangerous offense” 22 (for which there is
not specific definition, at this time). For further discussion of these terms, see Chapter 11, §
11.14 in Defending Immigrants in the Ninth Circuit.
Persons who have refugee and asylee status, but are not yet permanent residents. Refugees
and asylees are entitled to apply for lawful permanent resident (LPR) status beginning one year
after they have had that status within the United States. In practice, however, they often must
wait longer than one year to apply.
While the law is complex, in practice during this waiting period ICE is charging refugees and
asylees with removal if they come within a criminal ground of deportability. ICE also may
charge refugees with removal if they come within a crimes ground of inadmissibility.
Refugee and asylee adjustment to permanent residency. In order to be granted LPR status,
refugees and asylees must prove that they are not subject to any of the grounds of
inadmissibility, or if they are, they must be granted a waiver of the inadmissibility ground. The
only ground that cannot be waived is where the government has probative and substantial
“reason to believe” that the person is or ever was a drug trafficker. 23 Even for waivable grounds,
21 Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982).
22
See Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).
23 See waiver of inadmissibility in application for refugee or asylee adjustment at INA § 209(c), 8 USC § 1159(c).
The “reason to believe” drug trafficking inadmissibility ground appears at 8 USC 1182(a)(2)(C), INA § 212(c).
Immigrant Legal Resource Center N-21