Introduction

The prior articles in this series have examined U.S. Citizenship and Immigration Services Policy Memorandum PM-602-0199 from progressively narrower angles: the legal architecture of section 245 of the Immigration and Nationality Act (INA) and the limits of discretionary cover for legal error; the operational footprint of the memorandum at the field office interview; and a close reading of the memorandum’s text against the practitioner commentary that has built up around it.1 The close reading flagged, among other things, that the memorandum’s footnote 24 expressly identifies INA § 209(a)(2) (refugee adjustment) as non-discretionary, and that the express identification of § 209(a)(2) therefore confirms a categorical asymmetry between refugee adjustment and asylee adjustment under § 209(b). PM-602-0199, at 6 n.24.

This article develops that asymmetry. It walks through the statutory architecture of section 209, explains why asylee adjustment under § 209(b) sits within the memorandum’s textual reach while refugee adjustment under § 209(a) does not, and identifies a fundamental incoherence in the memorandum’s “consular processing default” framing as applied to the asylee population. It then sets out a structured approach to constructing the § 209(b) adjustment package and to defending the asylee applicant at the field office interview under the memorandum’s framework. The thesis is that the memorandum applies textually to asylees but that its rhetorical posture has no traction in the § 209(b) context, and that asylee adjustment cases should be defended on the unique features of § 209(b) rather than as ordinary § 245(a) cases with humanitarian overlay.

The Statutory Architecture of Section 209

Section 209 of the INA, 8 U.S.C. § 1159, governs adjustment of status for two distinct populations: refugees admitted under section 207 of the INA, and asylees granted asylum under section 208 of the INA. The provision was enacted as part of the Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, and has been amended several times since.

Section 209(a) governs refugee adjustment. The operative text provides that any alien admitted under section 207 “shall, at the end of [one] year period, return or be returned to the custody of the Secretary of Homeland Security for inspection and examination for admission to the United States as an immigrant in accordance with the provisions of sections 235, 240, and 241.” INA § 209(a)(1), 8 U.S.C. § 1159(a)(1). The next subsection provides that any such alien “shall, upon inspection and examination by an immigration officer, be regarded as lawfully admitted to the United States for permanent residence as of the date of such alien’s arrival into the United States.” Id. § 209(a)(2). The language is mandatory. The word “shall” appears in successive subsections. The agency’s authority is structured as a duty to adjust, not as a discretion to grant or withhold.

Section 209(b) governs asylee adjustment. The operative text provides that “[t]he Secretary of Homeland Security or the Attorney General, in the Secretary’s or the Attorney General’s discretion and under such regulations as the Secretary or the Attorney General may prescribe, may adjust to the status of an alien lawfully admitted for permanent residence the status of any alien granted asylum” who meets specified eligibility criteria. INA § 209(b), 8 U.S.C. § 1159(b). The language is discretionary. The phrase “in the . . . discretion” appears in the text. The eligibility criteria themselves are structural: the alien must have applied for adjustment; must have been physically present in the United States for at least one year after being granted asylum; must continue to be a refugee within the meaning of section 101(a)(42)(A) of the INA, or be the spouse or child of such a refugee; must not be firmly resettled in any foreign country; and must be admissible as an immigrant at the time of examination for adjustment. Id.

Section 209(c) provides waiver authority for inadmissibility grounds applicable to both refugee and asylee adjustment, with categorical exclusions for certain serious grounds. INA § 209(c), 8 U.S.C. § 1159(c). The waiver is broad and is available “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.” Id. The discretion in § 209(c) is therefore structured around the removal of barriers to adjustment, not the addition of them.

Several historical features of the section 209 regime bear noting. First, the original Refugee Act of 1980 imposed an annual numerical cap of 5,000 on asylee adjustments. The cap was repealed by the REAL ID Act of 2005, Pub. L. 109-13, § 101(g), 119 Stat. 231, 305, reflecting a congressional judgment that the available statutory adjustment pathway for asylees should be cleared rather than constrained.2 Second, both § 209(a) and § 209(b) require one year of physical presence after the underlying grant of refugee or asylee status, a waiting period that itself functions as a procedural safeguard. Third, both provisions roll back the date of adjustment: refugees adjust nunc pro tunc to the date of arrival in the United States; asylees adjust to the date one year before approval of the I-485. These structural features reflect a congressional intent to facilitate, not to ration, the adjustment of populations the United States has already taken in under its protection obligations.

The Asymmetry the Memorandum Recognizes

PM-602-0199 expressly identifies refugee adjustment under § 209(a)(2) as non-discretionary. Footnote 24 of the memorandum reads, in relevant part: “Certain adjustment of status provisions are non-discretionary. That is, if the applicant satisfies all statutory and regulatory eligibility requirements, USCIS must approve the application without considering whether the applicant warrants a favorable exercise of discretion. See  . . . INA § 209(a)(2) . . . .” PM-602-0199, at 6 n.24. The express identification of § 209(a)(2) confirms what the statutory text already provides: refugee adjustment is mandatory upon satisfaction of the eligibility criteria. The memorandum’s discretionary framework does not reach it.

The memorandum says nothing about asylee adjustment under § 209(b). By negative implication, § 209(b) is within the memorandum’s textual reach. The memorandum’s general invocation of “[a]djustment under most provisions” as “a matter of discretion and administrative grace,” PM-602-0199, at 1, tracks the statutory text of § 209(b), and the memorandum does not exempt asylee adjustment from its operational direction. Asylee adjudications are, on the memorandum’s framework, subject to the same discretionary analysis the memorandum directs at § 245(a) adjudications.

That textual conclusion, however, is where the surface analysis ends and the substantive analysis begins. The memorandum’s central rhetorical move is the framing of adjustment as “extraordinary relief that permits applicants to dispense with the ordinary consular visa process.” Id. That framing has no purchase in the asylee context. We turn to that point now.

The Incoherence of the Consular Processing Default for Asylees

The memorandum’s framing assumes that an adjustment applicant has access to an alternative path: consular processing in the country of nationality. The frame is the central operational move of the document. The memorandum’s recurring direction to officers is to ask whether the applicant ought to be required to follow the “regular” process of applying for an immigrant visa at a consular post abroad rather than the “extraordinary” course of adjustment in the United States. PM-602-0199, at 1, 5.

That assumption fails categorically for the asylee population. An asylee, by definition, has established a well-founded fear of persecution in the country of nationality, or has demonstrated past persecution that gives rise to a presumption of future persecution, on account of a protected ground. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); INA § 208(b)(1)(B), 8 U.S.C. § 1158(b)(1)(B). The protected grounds are race, religion, nationality, membership in a particular social group, and political opinion. Id. § 1101(a)(42)(A). The asylum grant is a determination by the United States that the alien meets the statutory definition of a refugee and that the United States accordingly extends protection.

For the asylee, returning to the country of nationality to consular process an immigrant visa application is not a procedural option. It is the very harm the United States granted asylum to prevent. The United States has taken the position, through the asylum grant itself, that returning the alien to the country of nationality would expose the alien to persecution on a protected ground. To suggest, even rhetorically, that an asylee should be expected to return to that country and consular process is to suggest that the asylum grant should be undone. That is not what the memorandum says, but it is what the memorandum’s framing would require if the framing were applied to asylees without modification.

The point becomes still sharper when we examine the procedural architecture of the consular visa process for an alien who has been granted asylum. An immigrant visa application requires the applicant to appear at a consular post in the country of nationality. 22 C.F.R. § 42.61. The consular post in the country of nationality is, in many cases, the place where the asylee suffered the persecution that grounded the asylum grant. An asylee from the Russian Federation who established past persecution on account of political opinion cannot reasonably be expected to present at the U.S. Embassy in Moscow to consular process. An asylee from the People’s Republic of China who established membership in a particular social group disfavored by the regime cannot reasonably be expected to present at a U.S. consular post in that country to consular process. The very act of returning to the country of nationality to seek the immigrant visa would, in most cases, defeat the protective purpose of the asylum grant.3

To the extent the memorandum’s framing assumes that an alternative path exists, the framing does not describe the asylee population. To the extent the memorandum directs officers to weigh the choice of adjustment as an adverse factor against the availability of consular processing, the direction has no application in the § 209(b) context because the availability premise fails.

What Section 209(b) Discretion Means

The discretionary inquiry under § 209(b) is not borrowed from § 245(a). The two provisions sit in different parts of the statute, address different populations, and serve different congressional purposes. Section 245(a) addresses aliens admitted or paroled into the United States who, having met the eligibility criteria for an immigrant visa, seek to obtain permanent residence without departure. Section 209(b) addresses aliens granted asylum, who by statutory definition cannot return to the country of nationality, and whose adjustment to permanent residence is the structurally appropriate path to durable status. See Alexander J. Segal, Adjusting Status as an Asylee.

The USCIS Policy Manual addresses § 209(b) in its own chapter. See USCIS Policy Manual, vol. 7, pt. M (Asylee Adjustment). The chapter elaborates the eligibility criteria, discusses the one-year physical presence requirement, addresses inadmissibility waivers under § 209(c), and provides guidance on documentation. The discretionary analysis the chapter contemplates is calibrated to the asylee population’s circumstances: the asylee has been protected from removal to the country of nationality, has often built family and community ties in the United States during the asylum process and the subsequent year of physical presence, and is, on the typical timeline, applying for adjustment after a multi-year process in which the United States has already invested adjudicative resources.4

The historical case law on § 209(b) discretion is sparse, in part because USCIS has historically approved most asylee adjustment cases without engaging in extensive discretionary analysis. The framework, however, has been understood to weigh humanitarian factors with particular force. Adverse factors of the kind that would drive a denial under § 245(a), such as overstay, unauthorized employment, or preconceived intent, do not have analogous force in the § 209(b) context because the asylee’s presence in the United States, however prolonged, is a consequence of the underlying grant of protection, not a contravention of an immigration framework.

The memorandum’s general direction to officers to weigh adverse and positive factors “in the totality of the circumstances,” PM-602-0199, at 5, must therefore be read against the § 209(b) statutory context. An officer adjudicating a § 209(b) application who imports the § 245(a) discretionary framework without modification has applied the wrong framework. The § 209(b) framework is structured around the protective basis of the asylum grant, the humanitarian considerations of the asylee population, and the structural unavailability of consular processing as an alternative path. Officers who treat the § 209(b) discretionary inquiry as a § 245(a)-style balancing exercise have failed to apply the statute the application is brought under.

The Three Field-Office Questions Applied to Asylees

The second article in this series identified three categorical questions that practitioners have reported officers asking at the front end of the adjustment interview: first, why did the applicant apply for adjustment rather than pursue consular processing; second, why did the applicant not return to the country of nationality when authorized stay expired; and third, what factors prevent the applicant from pursuing the visa process in the country of nationality now. See Alexander J. Segal, Adjustment of Status After PM-602-0199: Early Field Reports and the New Line of Interview Questioning. Each question, applied to an asylee, has a structural answer the asylee should be prepared to give.

The first question asks why the asylee applied for adjustment rather than consular processing. The answer is direct: the United States granted the applicant asylum based on a finding that the applicant has a well-founded fear of persecution in the country of nationality. Returning to that country to consular process would expose the applicant to the very harm the United States granted asylum to prevent. The asylee is using the statutory pathway Congress created for exactly the applicant’s circumstances: section 209(b), which provides adjustment for aliens granted asylum and which exists precisely because the asylee cannot, in fact, depart and reenter through consular processing.

The second question asks why the asylee did not depart when authorized stay expired. The premise of the question, as applied to an asylee, is wrong. The asylee’s “authorized stay” did not expire in any sense analogous to a nonimmigrant overstay. The asylee was granted asylum status, which carries authorized presence under section 208 of the INA. Asylee status continues until terminated under section 208(c)(2) of the INA or until adjustment to lawful permanent residence under section 209(b). The asylee’s continued presence in the United States is not a contravention of an immigration framework; it is the exercise of the protection the United States extended. An officer who treats the asylee’s continued presence as a discretionary negative factor analogous to a nonimmigrant overstay has misapprehended the statutory posture.

The third question asks what factors prevent the asylee from pursuing the visa process in the country of nationality now. The answer is the answer the United States gave when it granted asylum: the asylee has a well-founded fear of persecution on a protected ground; the conditions in the country of nationality remain consistent with that fear, or have worsened; and returning to consular process would expose the asylee to the very harm the asylum grant was extended to prevent. To the extent the officer is in effect asking whether circumstances in the country of nationality have changed such that the asylee could now safely return, the officer is conducting a termination analysis under section 208(c)(2) of the INA, not a § 209(b) adjustment analysis. Termination analyses have their own procedural and substantive requirements and cannot be conducted through the back door of an I-485 adjudication. See INA § 208(c)(2)–(3), 8 U.S.C. § 1158(c)(2)–(3); 8 C.F.R. § 208.24.

The Termination Question and Its Limits

A separate point about the termination/adjudication distinction deserves emphasis. Some practitioners have reported that officers conducting § 209(b) interviews have asked questions that, in substance, probe whether the asylee could now safely return to the country of nationality. The probe is procedurally improper for two reasons.

First, the proper procedural vehicle for revisiting an asylum grant is termination under section 208(c)(2) of the INA, not adjustment denial under section 209(b). Termination requires the agency to follow specific procedures, including written notice, an opportunity to respond, and a determination by an asylum officer or immigration judge after consideration of the relevant evidence. 8 C.F.R. § 208.24(c). An officer who effectively makes a termination determination through an unfavorable § 209(b) discretionary exercise has bypassed those procedures.

Second, the legal standards differ. Termination under section 208(c)(2) requires the agency to find one of the enumerated termination grounds: fraud in the underlying asylum application, conviction of a particularly serious crime, voluntary availment of the country of nationality’s protection, voluntary repatriation, acquisition of a new nationality and protection from that country, fundamental change in country conditions such that the alien no longer has a well-founded fear, or an offer of permanent resettlement in another country. 8 U.S.C. § 1158(c)(2); 8 C.F.R. § 208.24(a). Each ground has its own evidentiary requirements. The § 209(b) discretionary inquiry, by contrast, is a balancing of the totality of the circumstances. The two are not equivalent and cannot be substituted.5

Counsel preparing an asylee for the field office interview should be alert to the termination/adjudication line if the officer’s questioning crosses it. The asylee should answer the questions presented honestly, but counsel should be prepared to make a courteous, on-the-record observation if the officer’s questioning is, in effect, attempting to relitigate the asylum grant in the I-485 setting. The observation need not be confrontational. It is sufficient to state, in substance, that the applicant’s asylum status is presumed valid until terminated under the procedures set forth at 8 C.F.R. § 208.24, and that the present adjudication concerns the applicant’s eligibility for adjustment under § 209(b) rather than the continued validity of the asylum grant. A statement to that effect, made on the record, preserves the issue for any later review.

Constructing the Section 209(b) Adjustment Submission

The I-485 submission for an asylee applicant should be built around the unique features of § 209(b) and the asylum-based posture of the case. Several elements deserve attention.

First, the asylum grant itself should be in the file. A copy of the original asylum approval, whether the asylum officer’s grant letter, the immigration judge’s decision, or the BIA decision in cases granted on appeal, should be included with the I-485 submission. The grant letter establishes the basis of the protection and the date of the grant, from which the one-year physical presence requirement is calculated.

Second, an updated country conditions submission, where applicable, is useful. The country conditions that grounded the original asylum grant remain relevant, and any worsening or continuation of those conditions should be documented. The Department of State Country Reports on Human Rights Practices, the U.S. Commission on International Religious Freedom annual reports where relevant, and independent country conditions reports from established organizations provide the documentary basis. The submission is not a relitigation of the asylum grant; it is corroboration that the conditions on which the grant was based have not changed in a way that would suggest termination is appropriate.

Third, the discretionary factors traditional in a § 209(b) submission should be addressed. Family ties built in the United States since the asylum grant. Length of residence since the grant. Employment history, tax compliance, and community integration. Any specialized training, professional accomplishments, or community service. The absence of criminal history. Evidence of integration into the United States that, in the language of Matter of Mendez-Moralez, 21 I&N Dec. 296, 300 (BIA 1996), supports the conclusion that the grant of relief is in the best interests of the United States.

Fourth, any post-asylum-grant conduct that could be characterized as adverse should be addressed directly. The memorandum identifies certain categories of conduct as relevant to the discretionary inquiry: violations of immigration laws or conditions of status, fraud or false testimony, conduct inconsistent with the purpose of admission or parole, and failure to depart as expected. PM-602-0199, at 5. For an asylee, several of these categories do not naturally apply. Failure to depart, in particular, is structurally inapplicable: the asylee was not expected to depart; the asylee was granted protection from departure. Conduct inconsistent with the purpose of admission likewise does not naturally apply: the purpose of the asylum grant was to allow the asylee to remain in the United States free from the persecution that grounded the grant. If the file contains any item the officer might characterize as adverse, such as an arrest, a tax issue, or a period of unauthorized employment in the years between the asylum grant and § 209(b) eligibility, the submission should address the item directly and place it in the context of the underlying asylum posture.

Fifth, a discretionary factors memorandum can usefully be filed with the I-485 in cases where any adverse factor is in play or where the officer is likely to scrutinize the file. The memorandum should articulate the § 209(b) statutory framework, identify the family-ties, immigration-status-and-history, and moral-character factors PM-602-0199 directs officers to weigh, place the asylee’s history within those factors, and address any adverse items in the file. The memorandum should not assume the § 245(a) framework; it should articulate the § 209(b) framework and place the case within it.

The Refugee Comparison

The express identification of refugee adjustment as non-discretionary in PM-602-0199 footnote 24 produces an asymmetry that bears further reflection. The refugee and the asylee, on the underlying statutory definitions, have established the same protective need. INA § 101(a)(42)(A) defines a refugee as an alien who is unable or unwilling to return to the country of nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum statute applies the same definition to applicants for asylum: an asylum applicant must be a “refugee” within the meaning of § 101(a)(42)(A). INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A). The two populations are, on the substantive protection inquiry, indistinguishable.

The procedural difference is one of timing and posture. Refugees are processed overseas through the U.S. Refugee Admissions Program, screened by the Department of Homeland Security and the Department of State, and admitted to the United States with refugee status already established. Asylees, by contrast, arrive in the United States by various means and apply for asylum here, with the substantive determination made by USCIS or by an immigration judge after the applicant has entered the country.

The statutory architecture has historically reflected this procedural difference by making refugee adjustment mandatory and asylee adjustment discretionary. The historical rationale for the discretionary cast of § 209(b) was, in part, that the asylum grant itself, made within the United States and after the applicant’s arrival, was understood to leave some residual discretionary calibration for the agency to perform at the adjustment stage. That rationale has weakened over time. The 2005 repeal of the asylee numerical cap reflected a congressional judgment that the path to permanent residence for asylees should be cleared rather than constrained. The asylum adjudication process itself has become more rigorous over the decades, with successive layers of credibility, country conditions, one-year filing-deadline, and bar analysis built into the asylum stage of the process.

PM-602-0199’s reframing of § 245(a) discretion as a heightened, “extraordinary-relief” inquiry sits awkwardly against this trajectory. The memorandum’s footnote 24 expressly preserves refugee adjustment as non-discretionary. But by treating asylee adjustment under § 209(b) as subject to the new discretionary framework, or at least by failing to exempt it, the memorandum effectively introduces a meaningful gap between refugees and asylees that the substantive protection inquiry does not support. Practitioners should expect this asymmetry to surface in litigation challenges to denials of § 209(b) adjustment in the months ahead.

Litigation Posture

The litigation framework set out in the first article of this series applies to § 209(b) denials with particular force.6 Three points deserve emphasis.

First, the question whether an officer has applied the correct legal framework to a § 209(b) case, that is, the framework of § 209(b) itself calibrated to the asylee population rather than the § 245(a) framework, is a question of law. An officer who has imported the § 245(a) framework into a § 209(b) case has applied the wrong legal standard, and the denial is reviewable on that ground regardless of the discretionary caption. The safe harbor preserved by Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225 (2020), and Wilkinson v. Garland, 601 U.S. 209, 217–25 (2024), is precisely the vehicle.

Second, the question whether an officer’s discretionary denial has, in substance, effected a termination of asylum status without following the procedures required under section 208(c)(2) is a question of law. If an officer’s denial rests in part on a determination that country conditions have changed such that the asylee could now safely return, and the agency has not followed the termination procedures of 8 C.F.R. § 208.24, the denial is reviewable as a procedural failure. Cf. Pinho v. Gonzales, 432 F.3d 193, 200–04 (3d Cir. 2005) (eligibility determinations remain reviewable under the Administrative Procedure Act in district court).

Third, the question whether an officer has failed to address the asylee’s protective posture at all, that is, whether the denial recites generic § 245(a) adverse factors without addressing the asylum-based context, is a question of reasoned decisionmaking under 8 C.F.R. § 103.3(a)(1)(i) and under the memorandum’s own explicit requirement that discretionary denials include “an analysis containing the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors in the decision.” PM-602-0199, at 6. A § 209(b) denial that recites generic § 245(a) factors without engaging the asylum-based context is a denial that has failed the memorandum’s own reasoned-decisionmaking requirement.

Conclusion

PM-602-0199 applies textually to § 209(b) asylee adjustment. The memorandum’s footnote 24 expressly identifies refugee adjustment under § 209(a)(2) as non-discretionary, and by negative implication asylee adjustment under § 209(b) sits within the memorandum’s reach. The memorandum’s discretionary framework, however, has no traction in the § 209(b) context. The framework’s central rhetorical move, the framing of consular processing as the ordinary course and adjustment as the extraordinary alternative, presupposes the availability of an alternative that does not exist for the asylee population. The asylee, by definition, cannot return to the country of nationality to consular process without facing the very persecution the United States granted asylum to prevent.

The practical implications are substantial. The § 209(b) adjustment package should be built on the § 209(b) framework, not the § 245(a) framework with humanitarian overlay. Asylee applicants should be prepared for the three categorical questions emerging in the field, but their answers should be tied to the asylum-based posture of the case rather than to generic § 245(a) equities. Officers who import the § 245(a) framework into § 209(b) adjudication have applied the wrong framework, and the resulting denials should be vulnerable on review. Officers who, in substance, relitigate the asylum grant through an unfavorable discretionary exercise have bypassed the termination procedures of section 208(c)(2), and the resulting denials should be vulnerable on that procedural ground as well.

The asylee population, in short, is uniquely protected by the statutory architecture that brought them to permanent-residence eligibility in the first place. The professional task is to defend asylee adjustment cases on that architecture, with full attention to the specific features of § 209(b), and to build the record at the agency level so that the architecture is preserved for review if review becomes necessary.7

  1. The prior articles in this series are Alexander J. Segal, Discretion Is Not a Shield for Legal Error in Adjustment of Status Adjudications; Alexander J. Segal, Adjustment of Status After PM-602-0199: Early Field Reports and the New Line of Interview Questioning; and Alexander J. Segal, What PM-602-0199 Says and What It Does Not Say: A Close Reading. The close-reading article identified the § 209(a)/§ 209(b) asymmetry as one of the few things the memorandum decides expressly, by virtue of footnote 24’s explicit identification of § 209(a)(2) as non-discretionary, and noted that the asymmetry would be the subject of a forthcoming article in the series. This is that article.
  2. The original numerical cap, codified at INA § 209(b) before the REAL ID Act, limited the number of asylees who could adjust to permanent residence in any fiscal year to 10,000 (initially 5,000 under the 1980 Refugee Act, raised to 10,000 in 1990, and ultimately repealed in 2005). The cap had produced multi-year backlogs in asylee adjustment, with eligible asylees waiting years for an adjustment number to become available. The repeal cleared that backlog and reflected a congressional judgment that the available pathway for asylees should be unobstructed.
  3. The point is not that consular processing is theoretically impossible for an asylee. Some asylees acquire derivative citizenship in third countries, marry nationals of third countries and acquire third-country nationality, or are otherwise able to consular process in a country other than the country of nationality. Those cases are exceptions to the general rule. For the typical asylee, whose only nationality is the nationality of the country in which the persecution was suffered, consular processing is structurally unavailable. The memorandum’s framing of consular processing as the “ordinary” course addresses the general case, not the exceptional one.
  4. The Policy Manual treatment of asylee adjustment is at USCIS Policy Manual, vol. 7, pt. M (Asylee Adjustment), and elaborates the eligibility requirements, the discretionary considerations, and the documentation requirements specific to the § 209(b) framework. Practitioners building the § 209(b) submission should consult the chapter directly, in addition to the memorandum. The Policy Manual chapter remains the operative agency text on § 209(b) adjudication and has not been amended by PM-602-0199.
  5. The termination grounds at 8 C.F.R. § 208.24(a) are: (i) a showing of fraud in the asylum application such that the alien was not eligible for asylum at the time it was granted; (ii) acquisition of a new nationality, and protection from the country of new nationality; (iii) voluntary availment of the country of nationality’s protection by returning to that country; (iv) acquisition of permanent resettlement in another country; (v) fundamental change in country conditions such that the alien no longer has a well-founded fear of persecution; and (vi) commission of certain enumerated criminal acts or security grounds. Each ground has its own evidentiary and procedural requirements, and a § 209(b) discretionary denial that, in substance, rests on any of these grounds without following the termination procedures has bypassed the regulatory framework Congress and the agency erected for the purpose.
  6. The litigation framework is set out in detail in Alexander J. Segal, Discretion Is Not a Shield for Legal Error in Adjustment of Status Adjudications, and is summarized briefly here. The principal authorities are Patel v. Garland, 596 U.S. 328, 339–40 (2022) (pure factual findings within discretionary judgments are unreviewable); Guerrero-Lasprilla v. Barr, 589 U.S. 221, 225 (2020) (mixed questions of law and fact reviewable as questions of law under the safe harbor); Wilkinson v. Garland, 601 U.S. 209, 217–25 (2024) (application of statutory standard to established facts at the eligibility step is a mixed question); Bouarfa v. Mayorkas, 604 U.S. 6 (2024) (discretionary decisions insulated from review under § 1252(a)(2)(B)(ii) but nondiscretionary statutory determinations remain reviewable); and Pinho v. Gonzales, 432 F.3d 193, 200–04 (3d Cir. 2005) (eligibility determinations remain reviewable under the APA where the determination rests on a contested legal interpretation).
  7. For practitioners with a substantial client base of asylees from the former Soviet Union, the Caucasus, and Central Asia, the § 209(b) adjustment issue is particularly acute. Many such asylees were granted asylum on grounds (political opinion, religion, membership in a particular social group based on opposition to organized criminal or governmental targeting) that, with the passage of time, may produce continued or even worsened country conditions. The discretionary submission for such asylees should engage these country conditions directly, with the understanding that the asylum grant remains the agency’s prior finding of well-founded fear and that the § 209(b) adjudication is not the procedural vehicle for revisiting that finding.