Refugee Status and Removal Proceedings

The Board of Immigration Appeals (BIA) recently issued a precedent decision that addressed removal proceedings for aliens that entered the United States as refugees. Matter of D-K, 25 I&N Dec. 761 (BIA 2012). In the Matter of D-K, the BIA first determined “that a refugee who has not adjusted status to that of a lawful permanent resident (LPR) may be placed in removal proceedings without a prior determination by the Department of Homeland Security (DHS) that the alien is inadmissible.” Id. This decision overruled prior BIA precedent set in the Matter of Garcia-Alzugaray, which held exclusion proceedings had been improperly initiated against the alien as “the former Immigration and Naturalization Service (INS) failed to terminate the alien's refugee status or determine him to be inadmissible as an immigrant after examination under oath by an immigration officer.” Id. at 763-764 citing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986). The BIA found the reversal was necessary as the Federal Regulations pertaining to refugees had been “amended to streamline the adjustment process, making the decision whether to interview a refugee seeking permanent resident status a discretionary determination for DHS.” Id. at 764.

The BIA further relied upon the fact that neither the Immigration and Nationality Act (INA) §209 nor the Federal Regulations “explicitly state that termination of refugee status is necessary before an alien is placed in removal proceedings.” Id. In the Matter of Smriko, the BIA relied upon 8 C.F.R. §209.1(e) to conclude “that a refugee who had adjusted status could be placed in removal proceedings even though his status as a refugee was never terminated.” Id. citing Matter of Smriko, 23 I&N Dec. 836, 839-840 (BIA 2005). Specifically, the BIA focused on the fact that INA §239 “refers to 'the alien' and does not distinguish between aliens who are refugees and other aliens.” Matter of Smriko, 23 I&N at 838. As such, the DHS may properly initiate removal proceedings against an alien who is a refugee without taking the preliminary step of determining the alien is inadmissible to the United States.

The second issue addressed by the BIA was whether a refugee placed in removal proceedings should be subject to charges of deportability/ removability or inadmissibility. The BIA determined that when removal proceedings are initiated against an alien who entered the United States as a refugee the charges against the alien in the Notice to Appear should be removability under INA §237 rather than charges of inadmissibility under INA §212. Id. Pursuant to INA §237(a) “any alien in and 'admitted' to the United States shall be removed if the alien falls within one or more specific enumerated classes of deportable aliens.” Id. at 765. An “admission” is defined as “the lawful entry of an alien into the United States after inspection and authorization by an immigration officer.” INA §101(a)(13)(A). Refugees are admitted into the United States at the discretion of the U.S. Government. Any alien who believes he or she qualifies for refugee status “may apply for 'admission' with the DHS or consular office in the area he or she is located.” Id. at 766 citing 8 C.F.R. §207.1(a) and 8 C.F.R. §207.2(a).

In the Matter of D-K, the BIA acknowledged “the conditional nature of a refugee's status.” Id. at 767 (emphasis in the original). An alien's admission as a refugee is conditional due to its impermanent and contingent nature. The BIA nonetheless specifically held “to the extent that the pertinent language is ambiguous, we believe that a construction recognizing that a 'conditional admission' is nevertheless a form of 'admission' for purposes of section 237(a) of the Act would best comport with the overall structure of the statute.” Id. at 768. In making this conclusion, the BIA focused on the fact that a refugee makes “a lawful entry into the United States after inspection and authorization by an immigration officer.” Id. at 769. While a refugee must be reinspected after a year “for admission in a different status, that of a lawful permanent resident, this requirement does not undermine his or her initial admission as a refugee under section 207 of the Act.” Id. As such, the BIA concluded a refugee was “present in the United States pursuant to a prior admission and any charges in the notice to appear must be based on the grounds of deportability under section 237 of the Act.” Id. Thus, a refugee who ultimately becomes an LPR will be “admitted” twice. The first admission will be a conditional admission as a refugee pursuant to INA §207. The second admission will occur after reinspection and adjustment of status to an LPR pursuant to INA §209(a). After each “admission”, the alien would be subject to removal proceedings under deportability charges not inadmissibility.