USCIS has issued guidance on how refugees and asylees who travel outside the United States without first obtaining advance parole or refugee travel documents are to be treated. Issued in the form of a legal memorandum by USCIS General Counsel Bo Cooper, the guidance addresses the following: (1) the status of refugees and asylees who leave the U.S.; (2) facilitating the return of refugees and asylees who travel without proper documents or whose documents expire; (3) the status of refugees and asylees and permanent residents as a direct result of refugees/asylees who return to the country of persecution; and (4) the effect of such travel on pending adjustment of status applications.
Status of Asylees and Refugees Who Leave the U.S. without Proper Documents. Current regulations require that asylees and refugees obtain refugee travel documents before leaving the U.S. Upon their return, all asylees and refugees must be examined for admissibility. Persons with valid documents retain the status they held prior to their departure. Refugees and asylees who leave the U.S. without proper documents or who return with expired documents are not admissible and are subject to removal under Immigration and Nationality Act section 240. Such persons cannot resume their status unless they apply for and are granted a refugee travel document or parole.
The general counsel's memo recognizes that refugees or asylees who are inadmissible can reapply for asylum in removal proceedings. As a practical matter, therefore, the only grounds of inadmissibility that affect asylees are those grounds that would also terminate asylum. Examples cited in the memo include the aggravated felony or national security grounds. The memo also notes that under section 207(c)(3) of the INA, certain grounds of inadmissibility (such as public charge) do not apply to returning refugees. Moreover, the INS may, for humanitarian purposes (to assure family unity or further public interest), waive other inadmissibility grounds (except those involving security, terrorist activity, Nazi participation, or foreign policy concerns). Therefore, the general counsel directs that only when the refugee is found inadmissible and a waiver is not appropriate may the refugee be placed in removal proceedings.
Facilitating the Return of Refugees and Asylees. The general counsel's memo suggests that, given the compelling circumstances that led refugees to flee their countries, it is appropriate for INS personnel to facilitate their return to the U.S. when they are stranded because either they do not have travel documents or the ones they have are expired. Thus, the memo allows officers to issue refugee travel documents from consulates abroad. District directors having jurisdiction over the port of entry where the refugee is present may grant him or her parole. As an alternative, the refugees may reapply for refugee status under INA section 207.
Procedures set forth in 8 C.F.R. 223.2(b)(2)(ii) allow consulates to exercise discretion to issue travel documents outside the U.S. These may be granted in situations where the refugee did not know that the document was necessary or knew but due to urgent humanitarian reasons could not acquire it. The application must be made within one year from the date of departure from the U.S.
The memo suggests that parole under INA section 212 (d)(5)(A) may be an appropriate solution in cases where the refugee fails to obtain the documents within the one-year limit for applying. The factors that a district director may consider in granting parole include (1) the compelling circumstances leading to refugee or asylees status, (2) the reasons for the expiration of or failure to obtain documents, (3) whether the refugee or asylee has returned to a country of origin and why, (4) family reunification, and (5) the current circumstances in which the refugee finds him or herself.
Status of Refugees and Asylees Who Return to Countries of Alleged Persecution. Refugees and asylees and permanent residents as a direct result of refugees/asylees who return to the country where they claim to have been persecuted risk losing their status. When such individuals attempt to secure travel documents to return to the U.S., 8 C.F.R. section 223.2(b)(2)(ii) comes into play. Under this section, a refugee or asylee is eligible for a refugee travel document outside the U.S. if the "alien did not engage in any activities outside the U.S. that would be inconsistent with continued refugee or asylee status." According to the memo, refugees who return to visit an ailing parent are less likely to have engaged in an activity inconsistent with their status than those who get married with a view to reside there.
The memo also reviews the "cessation clauses" of the 1951 Convention Relating to the Status of Refugees; Handbook on Procedures and Criteria for Determining Refugee Status (Handbook), which suggests that a refugee or asylee who returns to the country where he claims to have been persecuted may have "voluntarily availed himself of the protection of his country of nationality." The cessation clause includes three elements: (1) voluntariness (the refugee must act voluntarily); (2) intention (the refugee must intend by his action to re-avail himself of the protection of the country of his nationality); and (3) re-availment (the refugee must actually obtain such protection).
When a refugee visits his or her former country, overseas personnel are directed to investigate the facts surrounding the refugee's visit and determine whether the refugee continues to need international protection and whether the status should be revoked. Application of the cessation principles can result in the invalidation of unexpired travel documents. Nevertheless, the memo heeds the cautionary note suggested by the Handbook and directs that cessation principles be applied restrictively to permanent residents as a direct result of refugees/asylees. Thus, unless it is clear that the principles apply, doubts should be resolved in the permanent residents’ favor.
Status of Asylees or Refugees with Pending Adjustment Applications. Finally, the general counsel's memo addresses the status of refugees and asylees with pending adjustment applications who depart the U.S. without obtaining advance parole. According to the memo, asylees and refugees who obtain travel documents outside the U.S. may resume their status when they return and maintain their pending adjustment applications. Although regulations provide that persons who depart the U.S. without advance parole generally abandon their adjustment applications, the memo clarifies that the effect of the departure depends on the law under which the applicant is adjusting. Since asylees and refugees adjust their status under section 209 of the INA and neither section 209 nor its implementing regulations deem applications abandoned when refugees depart without advance parole, the general rules regarding abandonment do not apply to refugees and asylees. Refugees and asylees who return from abroad with travel documents are readmitted as refugees and asylees, not as parolees. Therefore, their applications for adjustment remain valid.
As the holiday season begins, advocates should advise their refugee or asylee clients to seek advance parole prior to departing the U.S.
Status of Asylees and Refugees Who Leave the U.S. without Proper Documents. Current regulations require that asylees and refugees obtain refugee travel documents before leaving the U.S. Upon their return, all asylees and refugees must be examined for admissibility. Persons with valid documents retain the status they held prior to their departure. Refugees and asylees who leave the U.S. without proper documents or who return with expired documents are not admissible and are subject to removal under Immigration and Nationality Act section 240. Such persons cannot resume their status unless they apply for and are granted a refugee travel document or parole.
The general counsel's memo recognizes that refugees or asylees who are inadmissible can reapply for asylum in removal proceedings. As a practical matter, therefore, the only grounds of inadmissibility that affect asylees are those grounds that would also terminate asylum. Examples cited in the memo include the aggravated felony or national security grounds. The memo also notes that under section 207(c)(3) of the INA, certain grounds of inadmissibility (such as public charge) do not apply to returning refugees. Moreover, the INS may, for humanitarian purposes (to assure family unity or further public interest), waive other inadmissibility grounds (except those involving security, terrorist activity, Nazi participation, or foreign policy concerns). Therefore, the general counsel directs that only when the refugee is found inadmissible and a waiver is not appropriate may the refugee be placed in removal proceedings.
Facilitating the Return of Refugees and Asylees. The general counsel's memo suggests that, given the compelling circumstances that led refugees to flee their countries, it is appropriate for INS personnel to facilitate their return to the U.S. when they are stranded because either they do not have travel documents or the ones they have are expired. Thus, the memo allows officers to issue refugee travel documents from consulates abroad. District directors having jurisdiction over the port of entry where the refugee is present may grant him or her parole. As an alternative, the refugees may reapply for refugee status under INA section 207.
Procedures set forth in 8 C.F.R. 223.2(b)(2)(ii) allow consulates to exercise discretion to issue travel documents outside the U.S. These may be granted in situations where the refugee did not know that the document was necessary or knew but due to urgent humanitarian reasons could not acquire it. The application must be made within one year from the date of departure from the U.S.
The memo suggests that parole under INA section 212 (d)(5)(A) may be an appropriate solution in cases where the refugee fails to obtain the documents within the one-year limit for applying. The factors that a district director may consider in granting parole include (1) the compelling circumstances leading to refugee or asylees status, (2) the reasons for the expiration of or failure to obtain documents, (3) whether the refugee or asylee has returned to a country of origin and why, (4) family reunification, and (5) the current circumstances in which the refugee finds him or herself.
Status of Refugees and Asylees Who Return to Countries of Alleged Persecution. Refugees and asylees and permanent residents as a direct result of refugees/asylees who return to the country where they claim to have been persecuted risk losing their status. When such individuals attempt to secure travel documents to return to the U.S., 8 C.F.R. section 223.2(b)(2)(ii) comes into play. Under this section, a refugee or asylee is eligible for a refugee travel document outside the U.S. if the "alien did not engage in any activities outside the U.S. that would be inconsistent with continued refugee or asylee status." According to the memo, refugees who return to visit an ailing parent are less likely to have engaged in an activity inconsistent with their status than those who get married with a view to reside there.
The memo also reviews the "cessation clauses" of the 1951 Convention Relating to the Status of Refugees; Handbook on Procedures and Criteria for Determining Refugee Status (Handbook), which suggests that a refugee or asylee who returns to the country where he claims to have been persecuted may have "voluntarily availed himself of the protection of his country of nationality." The cessation clause includes three elements: (1) voluntariness (the refugee must act voluntarily); (2) intention (the refugee must intend by his action to re-avail himself of the protection of the country of his nationality); and (3) re-availment (the refugee must actually obtain such protection).
When a refugee visits his or her former country, overseas personnel are directed to investigate the facts surrounding the refugee's visit and determine whether the refugee continues to need international protection and whether the status should be revoked. Application of the cessation principles can result in the invalidation of unexpired travel documents. Nevertheless, the memo heeds the cautionary note suggested by the Handbook and directs that cessation principles be applied restrictively to permanent residents as a direct result of refugees/asylees. Thus, unless it is clear that the principles apply, doubts should be resolved in the permanent residents’ favor.
Status of Asylees or Refugees with Pending Adjustment Applications. Finally, the general counsel's memo addresses the status of refugees and asylees with pending adjustment applications who depart the U.S. without obtaining advance parole. According to the memo, asylees and refugees who obtain travel documents outside the U.S. may resume their status when they return and maintain their pending adjustment applications. Although regulations provide that persons who depart the U.S. without advance parole generally abandon their adjustment applications, the memo clarifies that the effect of the departure depends on the law under which the applicant is adjusting. Since asylees and refugees adjust their status under section 209 of the INA and neither section 209 nor its implementing regulations deem applications abandoned when refugees depart without advance parole, the general rules regarding abandonment do not apply to refugees and asylees. Refugees and asylees who return from abroad with travel documents are readmitted as refugees and asylees, not as parolees. Therefore, their applications for adjustment remain valid.
As the holiday season begins, advocates should advise their refugee or asylee clients to seek advance parole prior to departing the U.S.
