Reflections on using NP and visiting COP
(Tortfeasor) date: March 14, 2006
http://forums.immigration.com/showthread.php?t=206893
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As promised, here is my analysis. Sorry about its length but I thought it makes sense to address the issue thoroughly. For those few individuals who may not know all the alphabet soup of abbreviations used in this Forum, here is a quick guide of those used here: COP (Country of Persecution/native country); LPR (Legal Permanent Resident/green card holder); NP (National Passport) and RTD (Refugee Travel Document).
1.
Let me start with the caveats. This is not a legal opinion nor is it addressed to be a specific legal advice. It is an analysis of the issues involved and the applicable legal standards. Its applicability is subject to individual facts and circumstances, changed or evolved COP conditions and the passage of time since one left the COP. That said, I am very confident of its soundness, internal logic and its ability to hold water in arguing ones case. It may even be helpful in one of my favorite sports - kicking some INS ass in court!
2. I do not make any absolutist assertions. While each person will have to consider the merits of renewing NP or visiting COP, you do not have to be deterred from doing what you need to do by the unsubstantiated and wild stories told on this Forum. Articulating the following arguments does not mean that you condone fraudulent asylum claims. On the other hand, after the passage of both time and the immediate threat to ones safety, most regular people would like to visit their home land and their relatives or even want their American born kids to develop some connection with their roots. If you cannot appreciate the difference between fraud and this legitimate desire to re-connect with ones roots, then you are at a loss. If in addition to ignorance, you are unable to engage in intelligent discussion, then, as Bart Simpson eloquently said, you can "eat my shorts."
3.
Before adjustment to LPR. Using NP or visiting the COP before adjusting to LPR is not encouraged and may even lead to the revocation of the asylee status. Under the statute, the grant of asylum is conditional. Technically speaking, until the asylee adjusts to LPR status, the asylee should continue to have fear of persecution in order to continually benefit from the protection. This of course is rarely enforced as the INS does not do a new eligibility determination before the adjustment of an asylee to LPR status. Even while on asylee status, there are no absolute rules stating that applying for a NP or visiting the COP will automatically result in the revocation of the asylum status. INS will infer a heavy presumption that the asylee may no longer be eligible for continued protection. The asylee may rebut this inference by explaining why he or she is still eligible for asylee status protection despite the use of NP or visit to the COP. The ultimate result will depend upon the strength of circumstances surrounding the asylee's decision to get the NP or visit the COP. It is highly recommended that you consult with an immigration counsel before doing this while you are in asylee status.
4. After adjustment to LPR. Once a former asylee has adjusted to LPR, the asylee status is terminated and a new and different legal status is assumed. There is no requirement under any statute or rule that a former asylee who has adjusted to a LPR has to continuously show that he/she is still eligible to asylee protection after that status has expired. Logic will dictate that there should be more leeway and freedom for adjusted LPRs to use NPs and visit COPs than what was provided to asylees. Logic aside though, the only official document that is somehow related to the issue is the Welcome Notice sent to all LPRs which states that all LPRs (irrespective of how they have adjusted) have the same status and can use similar procedures when traveling overseas, including securing a NP from their respective native countries. LPRs who were former asylees are given the option of applying for a RTD or a Reentry Permit if they do not wish or cannot get NPs from their COP. Unlike asylees who are required to use RTDs for international travel, LPRs are not explicitly required to secure a RTD.
5. The Basic Argument. I believe some of the extremely humorous hysteria in this Forum arises from a certain frame of mind. Back in our home countries, our governments operated under the following rule: "Whatever is not expressly permitted or allowed is prohibited." On the other hand, one of the basic principles of rule interpretation in the US legal system is: "Whatever is not prohibited or regulated by a rule is allowed and permitted." The burden is on the INS to show that there is a clear rule against LPRs use of their NP or travel to the COP. In that case, we will either abide by such rule or most probably, challenge it in a court of law as an irrational rule that discriminates amongst equally situated LPRs (which is arguably, a violation of the equal protection clause of the Constitution).
6. The Most Confused Issue on the Forum. We read of how some people had their LPR status revoked allegedly because they renewed their NP or traveled back to their COP. Any potential revocation or rescission of LPR status and the underlying asylee grant by the INS may arise not merely because one has used a NP or even traveled to COP per se BUT because the INS (through a hearing process) established that AT THE TIME OF THE INITIAL ASYLUM GRANT, the applicant was not entitled to asylum relief because he/she was not at that time a "refugee" or has violated some legal requirement. If the INS cannot establish that the former asylee has committed fraud at the time of the initial application or grant or on the other hand, the former asylee shows that he or she had a credible fear of persecution at the time of the initial application or grant, the fact that years later and after becoming a LPR, he or she applied and received a NP and even visited his or her COP (in spite of any danger he/she might face) by itself, does not automatically result in the revocation of LPR status. PLUS: Note that once you have adjusted to LPR status, immigration officers at airports or those conducting your citizenship interview (however officious he or she may look, act, huff and puff) do not have the right or the power to revoke your LPR status. Any representation to the contrary is an abuse of authority. Always know that you can challenge any arbitrary action in court and once the lawyers at INS get involved, the issue gets quickly resolved.
7. Another Thought. A related issue I usually hear about and concerns me are individuals going to COP through a third country to evade the INS. I strongly advice against such schemes. Specially LPRs should be less concerned about using their NPs and visiting their COP when compared with the problems associated with attempting to evade the INS. To tell you the truth and in practical terms, I do not think that the INS or the US government give a damn as to whether or not you will have problems in your COP, that you desire to visit your parents or you want to hook up with that old flame! On the other hand, the US government will be concerned (and rightly so) if you are sneaking in and out of your COP without fully disclosing your itinerary or where you may have traveled to, specially if you travel to or from potential "terrorist" or problem spots.
I hope this helps!
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