- Introduction: Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017)
On August 3, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017) [PDF version]. The Board reached two important conclusions involving asylee adjustment.
First, the Board held that an alien who adjusts status as an asylee under section 209(b) of the Immigration and Nationality Act (INA) to that of an alien lawfully admitted for permanent residence is no longer an asylee. In short, the adjustment terminates the alien's asylee status. On this point, the Board clarified its prior published decision in the Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014) [PDF version].
Second, the Board held that the restrictions on removing an asylee found in section 208(c)(1)(A) of the INA do not apply to an alien who was granted status as an asylee, but who subsequently adjusted status to lawful permanent resident (LPR) status under section 209(b) of the INA.
In this article, we will examine the Matter of N-A-I- decision in detail. Please also see our article on the decision it clarified, Matter of C-J-H- [see article].
The respondent, a native and citizen of Pakistan, was granted asylum in the United States on December 3, 1992, while he was in exclusion proceedings. The respondent subsequently adjusted status from asylee to that of an alien lawfully admitted for permanent residence under the asylee adjustment provision in section 209(b) of the INA.
On May 17, 2013, the respondent was convicted in Texas of possession of a controlled substance. The Department of Homeland Security (DHS) charged the respondent as removable under section 237(a)(2)(B)(i) of the INA as an alien convicted of a crime related to a controlled substance and initiated removal proceedings.
In proceedings, the respondent filed new applications for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge denied the respondent's applications for relief on September 10, 2013. The respondent appealed to the Board, arguing that he could not be removed because his status as an asylee was never terminated. In an unpublished decision, the Board remanded the record to the Immigration Judge for further proceedings.
On February 11, 2014, the Board issued a published decision in the Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014), a separate matter. In Matter of C-J-H-, the Board held that an asylee who adjust status under section 209(b) of the INA is no longer an asylee post-adjustment. Accordingly, the Board held that such an individual is ineligible to readjust status under the asylee adjustment provision in section 209(b).
Based on Matter of C-J-H-, the Immigration Judge concluded that the respondent was no longer an asylee. The respondent again appealed, but the Board dismissed the respondent's appeal of the Immigration Judge's denial of his applications for relief in an unpublished decision rendered on December 5, 2014.
The respondent filed a petition for review of the Board's denial with the United States Court of Appeals for the Fifth Circuit. The respondent argued that his adjustment of status from asylee to that of an alien admitted for lawful permanent residence did not terminate his asylum status. Accordingly, he argued that his removal was prohibited by the plain language of section 208(c) of the INA, which requires that the status of an asylee must be terminated before he or she could be removed.
On February 22, 2016, the Fifth Circuit vacated the Board's decision in a published decision titled Ali v. Lynch, 814 F.3d 306 (5th Cir. 2016) [PDF version]. The Fifth Circuit analyzed the arguments under Chevron, U.S.A., Inc., v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984) [PDF version], the preeminent Supreme Court decision on administrative deference. The Fifth Circuit determined that interpreting section 209(b) to mean that asylum status is terminated when an asylee adjusts status, is “reasonable.” Accordingly, the Fifth Circuit concluded that Congress had left open whether section 209(b) adjustment terminates asylee status. Normally, this would mean that the Board's interpretation was entitled to Chevron deference. However, while the Fifth Circuit recognized that the Board had based its decision on the Matter of C-J-H-, it declined to afford the Board's conclusion Chevron deference because it determined that the Board had not fully considered the language, legislative history, and other matters regarding the statute noted by the Fifth Circuit. On this basis, the Fifth Circuit vacated the Board's decision and remanded the record for the Board to issue a new decision that addressed the issues noted by the Fifth Circuit.
On remand, the Board would find that section 209(b) adjustment terminates asylee status. In the foregoing sections, we will examine the Board's analysis and conclusions.
The first important statute in the case is section 208(c)(1)(A) of the INA. Under this provision, the Secretary of Homeland Security is prohibited from removing or returning “an alien granted asylum” under section 208(b) to the country of the alien's nationality (or country of last habitual residence if he or she lacked nationality). However, the statutory provision provides several grounds for the termination of asylee status (paraphrased):
- A. The alien no longer meets the conditions for asylee status due to a fundamental change in circumstances;
- B. The alien meets one of the mandatory bars to asylum conditions;
- C. The alien may be removed to a third country where he or she would not face persecution under a bilateral or multilateral agreement;
- D. The alien voluntarily availed him or herself to the protection of his or her country of nationality (or last habitual residence if he or she has no nationality) , and the alien either acquired permanent resident status or had a reasonable possibility of obtaining such status with the same rights and obligations of other individuals in the country; or
- E. The alien acquired a new nationality and enjoys the protection of the new country of nationality.
Furthermore, an asylee whose status is revoked is subject to applicable grounds of inadmissibility and deportability as well as removal proceedings.
Section 209(b) provides for asylee adjustment. An asylee may adjust status to that of an alien lawfully admitted for permanent residence if he or she satisfies the statutory requirements. Once approved, the date of the alien's admission for lawful permanent residence is established “as of the date one year before the date of the approval of the application.” The decision on whether to grant adjustment of status is discretionary.
As we will examine, the key question in the case is whether adjustment under section 209(b) terminates an asylee's status as an asylee.
The Board would ultimately conclude that the best reading of sections 208(c) and 209(b) of the INA is that once an asylee adjusts status under section 209(b), he or she no longer retains status as an asylee. Accordingly, subsequent to adjustment, the restrictions on the removal of asylees found in section 208(c)(1)(A) no longer apply.
The Board took the position that an adjustment of status under the INA is a move from one status to another status. It is not the acquisition of an additional status. Accordingly, it found that section 209(b) involves the change of status for an alien granted asylum from status as an asylee to status as an alien lawfully admitted for permanent residence.
The respondent's argument to the contrary was predicated on the claim that the list of conditions for termination of asylee status in section 208(c)(2) is exhaustive. To this effect, the respondent noted that adjustment of status under section 209(b) is not one of the grounds listed in section 208(c)(2). However, the Board noted that nothing in the text of section 208(c)(2) indicates that the list is exhaustive. Furthermore, it added that the implementing regulations at 8 C.F.R. 208.24(a)(1) and 1208.24(a)(1) include a showing of fraud as a reason why asylee status can be terminated, which is of course not a ground listed in the statute.
The Board next discussed further evidence for its conclusion in section 208(c)(2) itself. The statute makes clear that asylee status granted under section 208(b) “does not convey a right to remain permanently in the United States.” Furthermore, section 208(c)(3) renders an asylee whose status is terminated subject to normally applicable inadmissibility and deportability grounds, as well as removal proceedings. The Board noted that it does not follow from the statutory language that an alien who relinquishes status as an asylee would only be subject to removal after first undergoing the termination process set forth in section 208(c)(2) and the implementing regulations. For this reason, the Board reasoned that an alien who adjusted status from asylee to lawful permanent resident status is no longer an asylee, and is therefore subject to removal without protection in the form of section 208(c)(1)(A) of the INA and 8 C.F.R. 208.22 and 1208.22.
The Board noted that the United States Court of Appeals for the Fourth Circuit reached the same conclusion as the Board in Mahmood v. Sessions, 849 F.3d 187 (4th Cir. 2017) [PDF version]. The Fourth Circuit reasoned that section 209(b) identifies two immigration statuses: asylee status and lawful permanent resident status. It determined that in order to “adjust to” the status of an alien lawfully admitted for permanent residence, the alien must adjust from asylee status, meaning that the alien no longer has status as an asylee subsequent to adjustment. The Fourth Circuit also determined that section 209(b) represents a voluntary loss of asylee status through adjustment, and that this voluntary loss of asylee status is distinguishable from the involuntary loss of asylee status described in section 208(c) of the INA and its implementing regulations. The Fourth Circuit determined that sections 208(c) and 209(b) are best read in harmony, with 209(b) describing a bridge from one status (asylee) to another status (permanent resident), with the latter status entailing different rights and responsibilities wherein section 208(c) does not apply.
The Fourth Circuit also noted that when an asylee seeks adjustment of status, he or she seeks significant advantages afforded by lawful permanent residency. These advantages include the path to naturalized citizenship, the right to travel without advance permission, and more opportunities to petition to bring family to the United States. Furthermore, a permanent resident cannot have his or her status terminated due to no longer having a well-founded fear of persecution. An asylee is not forced to apply for adjustment and may instead choose to remain an asylee under the protection of section 208(c). However, the Fourth Circuit concluded that when an asylee adjusts status, “he [or she] gives up the absolute right to have the protections of asylum status adjudicated before removal.” Id. at 192.
It is important to note that the Fifth Circuit did not foreclose the result in vacating a similar decision by the Board. The difference between the Fourth and Fifth Circuits hinged on whether to give the Board's conclusion deference under Chevron. The Fourth Circuit determined that the Board's holding in Matter of C-J-H- was reasonable and entitled to Chevron deference on the instant question. The Fifth Circuit determined that the Board needed to further analyze the issues involving what happens to asylee status after adjustment before it could be entitled to Chevron deference.
The Board noted that an alien who had adjusted status under section 209(b) is not precluded from seeking asylum or withholding of removal in subsequent removal proceedings. While the Board acknowledged that asylum applications must generally be filed within one year of entry, which would in general bar an asylum application by an individual who had adjusted status, there is an exception to the time bar if the asylum applicant demonstrates the existence of extraordinary circumstances relating to the delay in filing (see section 208(a)(2)(B) of the INA; and 8 C.F.R. 2084(a)(5)(iv), 1208.4(a)(5)(iv) (2017)). The one-year bar is not applicable to applications for withholding of removal or protection under the Convention Against Torture.
In Matter of C-J-H-, which the Board relied upon in its initial unpublished decisions, the Board held that an alien who adjusts status from asylee to that of lawful permanent resident no longer qualifies as an asylee. However, in a point that was significant to the Fifth Circuit, the issue in Matter of C-J-H- was whether an alien who adjusted status under section 209(b) could subsequently readjust status. The Board's answer in the Matter of C-J-H- was negative. In its instant decision in Matter of N-A-I-, the Board clarified that, by the very nature of section 209(b) adjustment, asylee status is terminated upon approval. The Board also made clear that it reached this conclusion based solely on the language of section 208(c) and 209(b), and not “based on similarities between asylees and refugees…”
The Board moved to address several issues that were noted by the Fifth Circuit.
First, it addressed its published decision in the Matter of V-X-, 26 I&N Dec. 147, 149 (BIA 2013) [PDF version], as it had been asked to do by the Fifth Circuit. In the Matter of V-X-, the Board determined that the grounds for the termination of asylum under section 208(c) are narrower than the grounds for removability. The Board explained that the central point of Matter of V-X- is that a finding of removability does not trigger the automatic termination of asylee status. The Board distinguished the issue in the instant case from Matter of V-X- in that the respondent in Matter of V-X- was charged with removability while maintaining status as an asylee. Conversely, the respondent in the instant case was charged as removable while maintaining status as an alien lawfully admitted for permanent residence, which is, as the Board determined, a distinct status where all grounds of removability apply. Accordingly, the Board saw no conflict between its decision in Matter of V-X- and its reading of sections 208(c) and 209(b) with regard to the situation in the instant case.
Second, the Board saw no conflict in its reading of 8 C.F.R. 208.14(g) and 1208.14(g) and its holding in the instant case. Those two regulations “provide that if an asylum applicant is granted permanent resident status, the asylum application is presumed abandoned and dismissed without prejudice unless the applicant submits a written request that it be adjudicated.” This decision deals with situations in which an individual seeks asylum, but is granted lawful permanent resident on a different basis. The Board noted that these regulations apply only to asylum applicants, not aliens who have already been granted asylum. The Board noted that the presumption of abandonment in these regulations in fact support the conclusion that adjustment to permanent resident status “extinguishes a claim to asylee status.”
Finally, the Board examined the legislative history of the INA, finding no evidence that Congress intended that an alien who voluntarily adjusts status under section 209(b) retain the asylee protections found in section 208(c)(1)(A). The Board explained that the legislative history and prior administrative precedent recognizes that a primary purpose of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”) was to implement the principles agreed to in the following international agreements entered into by the United States:
- United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”); and
- United Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (“Convention”).
The Board noted that section 208(c)(2) generally corresponds to Article 1(C) and 1(F) of the Convention. United Nations guidance in the Office of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees 23−27 (reissued 2016) (“Handbook”), explains that the cancellation of refugee status is distinguishable from the cessation grounds. Accordingly, the Board concluded that, while the list of cessation grounds for refugee status is exhaustive, cessation is not the only means by which status as a refugee may be ended. Furthermore, the Handbook states that once a refugee no longer wishes to be considered a refugee, “there will be no call for continuing to grant him refugee status and international protection.” The Board determined from this passage that there is no contradiction between the language of the Protocol in the Convention and the Board's determination that section 209(b) of the INA involves the voluntary relinquishing of asylee status in exchange for permanent residency.
Applying its conclusion to the instant case, the Board determined that the respondent's status as an asylee was terminated when he adjusted status to that of an alien lawfully admitted for permanent residence under section 209(b). Because he no longer had status as an asylee, the Board determined that his removal was not precluded by section 208(c) or its implementing regulations. For this reason, the Board affirmed the Immigration Judge's denial of the respondent's applications for asylum and withholding of removal, and dismissed the respondent's appeal.
The Board's result in Matter of N-A-I- makes sense in light of its prior decision in the Matter of C-J-H-. In short, it concluded that once an individual who was granted status as an asylee adjusts status under section 209(b), he or she no longer retains the status and associated protections of asylum. Instead, he or she essentially trades the benefits and protections of asylee status for those of lawful permanent resident status.
We will update the site with more information on the issue if the Fifth Circuit, or any of its sister circuits, issues a decision contrary to the Board's conclusion in the instant case.