quick reference chart and notes for determining immigration - ILRC

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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
California Quick Reference Chart and Notes February 2010 there is no guarantee that the government will grant the waiver. If an inadmissible conviction involves a “violent or dangerous” offense, the waiver is virtually certain to be denied. 24 5. The Defendant who has or will apply for Temporary Protected Status (TPS) a. What is Temporary Protected Status? The U.S. government may designate Temporary Protected Status (TPS) for any foreign country encountering catastrophic events such as ongoing armed conflict, earthquake, flood or other disasters, or other extraordinary and temporary conditions. Nationals of that country will not be forced to return there from the U.S. for a designated period of time, can travel outside the U.S. with special permission, and will receive employment authorization. 25 The applicant must have been in the United States as of a designated date. TPS usually is granted for only a year at a time, but often with several renewals. Generally the national must have filed during the initial registration period in order to benefit from TPS. Example: The Department of Homeland Security Secretary determined that an 18-month designation of TPS for Haiti is warranted because of the devastating earthquake which occurred on January 12, 2010. The TPS applicant must be a national of Haiti, or a person without nationality who last habitually resided in Haiti; must have continuously resided in the U.S. since January 12, 2010; and must meet criminal record and other requirements. The person must apply within a 180-day period beginning January 21, 2010. Since TPS is a temporary designation, the list of countries granted TPS changes frequently. For up to date information about which countries currently are designated for TPS, and specific requirements for each country’s nationals, go to www.uscis.gov, and click on Temporary Protected Status in the “Humanitarian” box. As of January 2010, the following countries have an ongoing TPS program: Haiti (where registration to join TPS is open at least through July 21, 2010), El Salvador, Nicaragua, Honduras, Somalia and Sudan. b. What Are Defense Priorities for a person who already has, or hopes to apply for, Temporary Protected Status? An applicant will be denied a grant of TPS, or may lose the TPS status he or she already has, 26 if he or she has the following criminal record 27 : ‣ is inadmissible under the crimes grounds ‣ Has been convicted of two misdemeanors or one felony. 24 See Matter of Jean, supra. 25 INA § 244A, 8 USC § 1254a, added by IA90 § 302(b)(1). 26 See 8 CFR 244.14(a)(1), (b)(2). 27 In addition, an applicant for TPS may be denied based on actions in the home country (persecution of others, conviction of a “serious non-political offense”). N-22 Immigrant Legal Resource Center
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