You and I are probably the only persons on this forum who have read the
Restatement (Third) of the Foreign Relations Law of the United States. Therefore I do not see any need to use strict definitions. I am using the word customary loosely. So does the USCIS. See the following exchange between the USCIS Arlington Asylum Office and interested CBOs (which took place in a bimonthly liason meeting in early 2003).
Policy Questions:
1. Subject: Revocation of asylum:
Question: What is the procedure for revoking someone's asylum grant? What is the time period between the re-interview and the decision? Is the person called in to receive the decision or is it mailed to them? If a decision to withdraw asylum is made, how does the immigrant contest this decision? Is there a notice of intent to revoke? Is there a motion to reconsider? Is the case referred to the immigration court? In how many such cases did ZAR revoke in 2003?
[questioner's name deleted]
RESPONSE:
Please see the attached for Section X of the Affirmative Asylum Procedures Manual which describes in detail the procedures for Termination of an Asylum Approval.
Termination proceedings can only be initiated after an Asylum Approval has been issued, and may be initiated even if the individual
has adjusted his/her status to that of a lawful permanent resident (LPR). The asylum office does not have jurisdiction to terminate asylum granted by EOIR. Grounds for termination of an asylum grant are listed in 8 CFR 208.24.
The asylee is issued a Notice of Intent to Terminate (NOIT) listing the ground(s) for the intended termination and containing a summary of the evidence supporting the ground(s). To begin termination proceedings through the issuance of a Notice of Intent to Terminate (NOIT), the asylum office must have information that, on its face, indicates that asylum termination may be appropriate, but need not have the higher level of evidence required to terminate asylee status.
For termination proceedings which are conducted by the asylum office, the termination interview is set for at least 30 days after the date of mailing of the NOIT. The applicant may waive this 30-day period and request an earlier interview, or may waive the interview entirely and admit the allegations in the NOIT, in writing. A written waiver form is included as an attachment to the NOIT for this purpose.
The Service has the burden of establishing that
a preponderance of the evidence supports termination. The nature of the termination interview is nonadversarial and need only explore issues relevant to termination of asylum. Following the termination interview, for those cases in which the AO makes a recommendation to terminate the individual’s asylum status based upon evidence presented, the applicant receives a “Notice of Termination of Asylum Status”.
Regardless of whether the applicant is a Lawful Permanent Resident (LPR) or an asylee, after asylum status is terminated, the asylum office must place the individual before the Immigration Court.
The way in which the decision is served (Mail or Personal) is at the discretion of the Asylum Office Director.
An asylum office Director need only consider a motion to reopen or reconsider for a case that has received a Final Denial from an asylum office. Because referred cases have not received a final denial, they are not entitled to reconsideration.
NOTE: Termination of asylum status applies to the principal as well as all individuals who obtained derivative asylum status from the principal, whether granted as dependents on the I-589 or through an I-730 Refugee/Asylee Relative Petition.
Notes from meeting: If the Asylum Office terminates asylum for the principal, regardless of the
grounds for termination, asylum for all the derivatives is terminated as
well. However, It is possible that the Asylum Office might terminate one or more
derivatives based on their own firm resettlement and the principal would not
be affected because the principal established he/she was not firmly resettled.
2. Renewal of National Passport
We have received reports that your office is terminating the asylum status of LPRs who renewed their national passports upon adjustment under section 209. Please comment on the Service’s position on passport renewal by former asylees.
[name deleted]
RESPONSE
It is internationally accepted that a refugee who chooses to apply for or renew a passport from his country of alleged persecution is presumed to no longer need protection. The burden rests on the refugee to rebut that presumption. For an asylee who is now LPR, we do not have bright line rules with respect to passport renewal. The resolution of this issue depends on the specific circumstances of a case. Renewing one’s passport after adjustment of status, in the absence of a convincing explanation, could be evidence of fraud on the asylum application. The Service will review such cases carefully. This
custom is followed internationally. The Service notes that an asylee who has adjusted to LPR status can continue to use a Refugee Travel Document.
TortFeasor said:
With all due respect Prof., I am afraid that is a tad too assertive and does not have any basis under US law or international law. What "customary" international refugee law are you referring to?
There is no such requirement or clear-cut rule imposed on someone who has converted and adjusted to a new legal status (i.e. from a prior asylee/refugee status to that of a legal permanent resident) under any of the known sources of international law. Not under the applicable UN treaties (the 1951 Convention and the 1967 Protocol). Not in any decision of the International Court of Justice or any other adjudicative tribunal. Of course, no consistent "practice of states" doctrine can be inferred to even state that the community of nations have adopted a uniform standard. The absence of a clear standard under US law is evidence of this. Nor are there any significant international jurists that have established such principles (the so called "opinio iuris").
A legal text expounds that "customary international law results from a general and consistent practice of states followed out of a sense of legal obligation, so much so that it becomes custom. As such, it is not necessary for a country to sign a treaty for customary international law to apply. In other words, customary international law must be derived from a clear consensus among states, as exhibited both by widespread conduct and a discernible sense of obligation."
I am no international law guru, but I would be careful in throwing out legal assertions. If you can refute my arguments, let's hear it.
Cheerio
