Readmission of Asylees and Refugees After International Travel

 

Introduction and Questions Raised

Readmission of AsyleesThis article will use applicable statutes, regulations, and an important Immigration and Nationality Service (INS) memorandum issued on November 23, 1999, titled “Readmission of Asylees and Refugees Without Travel Documents”1 (henceforth, “Cooper Memo”) to answer the following questions regarding travel by persons in the United States as asylees and refugees.

  • What is the status of an asylee or refugee who leaves United States while lacking permission to return, or who is in the United States with terminated travel documents?
  • What is the process for readmitting asylees and refugees who have invalid travel documents when they travel?
  • What are the repercussions from a legal standpoint for an asylee or refugee returning without valid travel document?
  • If an asylee or refugee travels back to their country of origin, where he or she had declared having a well-founded fear of maltreatment, will he or she lose his or her immigration statuses in United States?
  • Do asylees and refugees refugees have to withdraw their outstanding adjustment of status requests (I-485) if they travel outside the United States without advance parole?

A refugee is considered inadmissible2 if he or she travels outside the United States without a valid and non-expired travel document. However, with the consideration of a United States Citizenship and Immigration Services (USCIS) District Director, a refugee lacking documents for travel may petition for travel documents at a port of entry. He or she may also request to be paroled into the United States or submit an application for refugee admission.

In addition, while not dispositive by itself, there may be a negative effect on U.S. protection benefits if an asylee or refugee returns to his or her country of nationality. Although traveling to his or her country of nationality will not immediately end the refugee's asylum status in the United States, it will call into question the presence of a well-founded fear of return, and may even cast doubt on the veracity of the original asylum claim.

Asylees and refugees are allowed to travel outside the United States without having withdrawn their current adjustment of status application, which is not considered abandoned on account of leaving the United States for brief and causal travel abroad.3 However, they are still required to apply for and receive a refugee travel document before traveling, and then to present it, unexpired, upon return.

Special Consideration for Travel for Asylees and Refugees

Congress intended for asylees and refugees to receive special consideration with regard to travel. The immigration status of an asylee or refugee who has expired travel documents and is travelling without permission outside the United States is not revoked and it does not expire on account of travel. Any person who was given asylum or refugee status in the United States is allowed to travel internationally. However, he or she must receive refugee travel documents to be able to return to the United States.4 If an asylee or refugee seeking entry into the United States is able to present a valid and unexpired refugee travel document at his or her place of entry, he or she may be admitted into United States and resume his or her status as a refugee.5 Asylees and refugees who travel outside of the United States without suitable documents or permissions are deemed inadmissible on account of having left the United States without securing proper reentry documentation, or on account of having failed to return to the United States before the expiration of their refugee travel documents.6 However, the Department of Homeland Security (DHS) cannot rely on the section 235(b)(1) of the Immigration and Nationality Act (INA) to expeditiously remove an asylee or refugee who had once before managed to prove his or her claim to asylum status or refugee status.7

Inspection at Point of Entry for Asylees and Refugees

Refugees or asylees returning to United States with his or her valid travel documents must still be reviewed for admissibility.8 However, U.S. Customs and Border Protection (CBP) inspectors are advised to only inspect asylees for grounds of inadmissibility that would also be grounds for termination of asylum.9 In the case where the asylees provides current and suitable refugee travel documents, and the officer inspecting him or her deems that he or she is considered inadmissible, DHS must issue a notice of intent to discontinue asylum and place the immigrant into removal proceedings under section 240 of the INA.10 However, unless the reasons for inadmissibility were the same as the reasons to terminate asylum (such as an aggravated felony or national security ground), the asylee or refugee would be permitted to reenter the United States and resume his or her status on account of having a valid and unexpired travel document. Accordingly, by having acquired a refugee travel document ahead of the travel, and returning within its validity period, the asylee or refugee keeps his or her asylum status except if it was terminated under applicable regulations.11 Inspection of returning asylees and refugees are governed by the section 207(c)(3) of the Immigration and nationality Act (INA), which outlines inadmissibility grounds under section 212(a) of the INA as applied to asylees and refugees, as well as the inadmissibility grounds which can, in the discretion of the officer, be waived. Hence, if the returning asylee or refugee is deemed to be inadmissible, and the ground for inadmissibility is not waived, he or she cannot be expeditiously removed from the United States, but instead must be placed in removal proceedings under section 240 of the INA. During section 240 proceedings, the asylee or refugee should be afforded an opportunity to reapply for asylum.

Asylee and Refugee Travel under a Grant of Advance Parole

In rare cases, an asylee or refugee may travel from the United States under a grant of advance parole. If the asylee or refugee presents his or her advance parole document at inspection, he or she will be paroled into the United States in accordance with section 212(d)(5) of the INA.12 However, except in cases of emergency, refugees should obtain refugee travel documents to travel instead of grants of advance parole.

Admitting Refugees and Asylees Who Lack Valid Travel Documents

Although the lack of valid travel documents at the time or place of reentry into the United States renders an asylee or refugee inadmissible, that inadmissibility may be waived in the discretion of a CBP officer. In fact, current regulations actually encourage CBP officers to waive that ground of inadmissibility for asylees and refugees because of the special status accorded by U.S. immigration law for individuals escaping persecution on one of the statutorily defined grounds. Hence, even when a refugee or asylee lacks a valid travel document, refusal of the reentry is not automatic; readmission is often permitted as a matter of discretion and, if readmitted, the asylee or refugee may resume his or her status in the United States.

Therefore, while a missing or invalid advance parole or refugee travel document at the time of entry triggers inadmissibility, it does not invalidate the asylee or refugee status as a matter of law, thus providing the CBP with discretion to readmit the asylee or refugee and allow him or her to resume his or her asylee or refugee status in the United States. Both U.S. law and policy encourage readmission in these circumstances to avoid trapping a person who was granted asylee or refugee status outside of the United States solely because of missing or invalid travel documents.

CBP officers are advised to take into account situations where the asylee or refugee may have been uninformed of the requirement to receive a refugee travel document prior to traveling abroad, as well as situations where events abroad may have prevented the asylee or refugee from returning to the United States in a timely manner.13

U.S. Consulate or Port-of-Entry Issued Refugee Travel Documents

Since April 1, 1997, an asylee or refugee is required to apply for a travel document before leaving the United States. However, by a process described in 8 C.F.R. § 223.2(b)(2)(ii), such alien may apply for a discretionary grant of a refugee travel document from outside the United States or at a U.S. port of entry.14 This may be granted, pursuant to guidance from the Department of Justice (DOJ) if it is found that the alien left without a refugee travel document because he or she was ignorant of the requirement, or because he or she left due to an urgent humanitarian need.15 However, this is not intended to be the normal procedure, and if inspectors determine that the asylee or refugee was aware of the requirement to obtain a refugee travel document, and that he or she did not leave because of an urgent humanitarian need, they will likely not grant a discretionary refugee travel document.16

Pursuant to 8 C.F.R. § 223.2(b)(2)(ii), in order to be approved for a travel document request overseas, an asylee or refugee must make the request within 1 year of his or her departure from the United States. There is no exception to this rule. If more than 1 year has elapsed, the asylee or refugee may still be eligible to be paroled into the United States, and should pursue that option. However, in his or her discretion, CBP's District Director may also permit the asylee or refugee to reapply for refugee status under section 207 of the INA, which would allow the person to reenter the United States with all of the benefits of refugee admission.17

Consequences of Returning as a Parolee

If an asylee or refugee is paroled into the United States, he or she will not regain his or her prior asylee or refugee status. However, provided that he or she satisfies the following conditions, he or she will be eligible to adjust status pursuant to section 209(a) of the INA:

  • Has not had admission terminated by the AG,
  • Has been physically present in the United States for at least 1 year, and
  • Has not already acquired permanent resident status18

For the purpose of adjustment of status in this situation, time spent on parole constitutes time spent “physically present” in the United States.19 In the case of an asylee, he or she may adjust after one year of physical presence even if he or she left the United States and was paroled back into the United States upon return.20 Refugees admitted to the United States under section 207 of the INA will have physical presence under parole count toward eligibility for adjustment of status.21 However, asylees and refugees who return under a grant of parole are not entitled to employment authorization for asylees and refugees pursuant to 8 C.F.R. § 274a.12(a), and they will be required to file an application under 8 C.F.R. § 274a.12(c)(11) in order to be granted authorization for employment.22

Adjudication of Situation where Asylee or Refugee Returns to Country of Nationality

As we mentioned earlier in the article, if an asylee or refugee returns to the country where he or she allegedly fears persecution, immigration authorities may consider this as grounds to terminate the asylee's or refugee's status. In considering whether the asylee's or refugee's status should be terminated for returning to his or her country of nationality, immigration authorities consider whether he or she “voluntarily re-availed himself [or herself] of the protection of his [or her] country of nationality.”23 Agents are instructed to consider the following in determining whether the asylee or refugee should no longer qualify for his or her status:

  • Whether or not the return to the country of nationality was voluntary;
  • Whether or not the refugee intended to re-avail him or herself to the protection of his or her country of nationality;
  • Whether or not the refugee actually obtained protection of his or her country of nationality.24

Generally speaking, immigration officials will look to discover whether an asylee or refugee took steps to re-establish him or herself in the country of nationality (for example, if he or she bought a house) and whether or not he or she obtained a passport or other type of travel document from the country of nationality.25 However, while those would be two factors supporting the cessation of asylee or refugee status, immigration authorities are instructed to consider each situation on a case by case basis. There is no single fact that leads to the cessation of status in every single case. Furthermore, if immigration authorities believe that the facts of the case do not clearly support the cessation of status, they are instructed to resolve the case in favor of allowing the asylee or refugee to keep his or her status.26

Traveling for Asylees and Refugees with Pending Adjustment of Status (I-485) Applications

Persons admitted as asylees or refugees may apply for adjustment of status provided that they have been physically present in the United States for at least 1 year.27 In accordance with current regulations,28 the rules for leaving the United States as an asylee or refugee with a pending adjustment of status application will be solely governed by the statue providing for adjustment for asylees and refugees and not by the rules for all other adjustment of status applicants. Section 209 of the INA, which contains the statutory provisions for adjustment of status for asylees and refugees, does not contain a provision that asylees and refugees abandon their adjustment of status applications by departing the United States without a grant of advance parole. Since asylees and refugees returning to the United States from abroad with valid and unexpired refugee travel documents are readmitted with their asylee or refugee statuses, their adjustment of status applications will not be considered abandoned on account of traveling abroad.29

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  1. INS Memorandum, B. Cooper, “Readmission of Asylees and Refugees Without Travel Documents” (Sept. 2000)
  2. INA §212(a)(7)
  3. Cooper Memo
  4. 8 C.F.R. § 223.1(b)
  5. 8 C.F.R. § 223.1(d) (2) (i).
  6. INA § 240; 8 C.F.R. § 223.3(d) (2) (ii).
  7. 8 C.F.R. § 235.3(a) (5) (iii).
  8. 8 C.F.R. § 223.3(d) (2) (1).
  9. Cooper Memo, citing; 8 C.F.R. § 208.23.
  10. 8 C.F.R. § 208.23(f)
  11. 8 C.F.R. § 208.22.
  12. 8 C.F.R. § 245.2(a) (4) (ii); INA § 235(a) (1); In Re S-O-S-, Int. Dec. 3355 (BIA 1998)
  13. Cooper Memo.
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id., for the list
  19. Cooper Memo, citing; Matter of M/V “Runaway”, 18 I&N 127, 130 (BIA 1981) [Holding that parolees are “physically present” in the United States, but in this situation are ineligible to seek admission as refugees under INA § 207 and must instead seek asylum under INA § 208]
  20. INA § 209(b)
  21. Cooper Memo, citing; 8 C.F.R. § 207.9 for procedures for refugee adjustment of status in this situation
  22. Cooper Memo
  23. Cooper Memo, citing; Article 1(C)(1) of the 1951 Convention Relating to the Status of Refugees (henceforth, “The Convention”)
  24. Cooper Memo, citing; Handbook on Procedurs and Criteria for Determining Refugee Status (henceforth, “The Handbook”) paragraphs 11-139; GenCo Opinion 79-23, Sept. 11, 1979
  25. Cooper Memo, citing; Article 1(C)(4) of the Convention; Paragraphs 121, 123, 133-34 of the Handbook.
  26. Cooper Memo, citing; Paragraph 116 of the Handbook [instructing that the cessation clauses be interpreted “restrictively”]
  27. Cooper Memo, citing; INA § 209 [for asylee/refugee adjustment]; INA § 245 [for corresponding adjustment provisions for all other non-immigrants]
  28. See; 8 C.F.R. § 245.2(a)(4)(i), 8 C.F.R. §§ 209.1(a)(1), 209.2
  29. Cooper Memo