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