The BIA's Flawed Reasoning in Matter of N-A-I-
In its recent precedent decision in Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017), the Board of Immigration Appeals held that when one who was granted asylum adjusts his or her status under section 209(b) of the I&N Act, their asylum status automatically terminates. The Board further held that as a result, the restriction under section 208(c) of the Act, preventing the removal of an asylee to the country from which he or she was granted asylum, no longer applies. Although this decision hasn’t received much attention, I believe it warrants discussion, as the conclusion runs contrary to well-established principles of asylum law.
Let’s begin by looking at some basic asylum concepts. The reason refugees are granted asylum is because, in their inability to avail themselves of the protection of their native country, they are essentially stateless. A refugee is one who is outside of his or her country of nationality, and unable or unwilling to return because doing so will result in a loss of life or liberty due to a statutorily-protected ground. One becomes a refugee when these criteria are met; a grant of asylum is merely a legal recognition of an already existing status.
In the same way that one becomes a refugee when the above conditions are met (and not upon a grant of asylum status), one remains a refugee until those conditions cease to exist. This generally happens in one of two ways. Less frequently, conditions may change in the original country of nationality to the extent that the individual can safely return. In the far more common scenario, the asylee eventually obtains citizenship in the country of refuge, at which point he or she ceases to be stateless. Under U.S. immigration law, the only way to get from asylee to U.S. citizen is by first adjusting one’s status to that of a lawful permanent resident. Our laws encourage this step towards citizenship (and an end to refugee status) by allowing one to adjust status one year after being granted asylum. Furthermore, our laws waive several grounds of inadmissibility that apply to non-refugee adjustment applicants, and allow for most others to be waived (with the exception of those convicted of serious crimes or who pose security concerns).
Obviously, the fact that one takes the step towards citizenship of adjusting their status does not mean that they magically cease to be a refugee. The change in their U.S. immigration status does not make them able to safely return to a country where they might face death, rape, lengthy imprisonment,or torture. For that reason, section 208(c)(1) of the Act forbids the return of one granted asylum to the country of nationality from which they fled. The statute makes no mention of this protection terminating upon a change in the asylee’s immigration status; it states that it applies “[i]n the case of an alien granted asylum.”
Section 208(c)(2) of the Act acknowledges that asylum “does not convey a right to remain permanently in the United States.” It then lists the grounds under which asylum status may be terminated. Simply adjusting one’s status to that of a lawful permanent resident does not satisfy any of the listed criteria. Additionally, the Office of the United Nations High Commissioner for Refugees issued an opinion letter indicating that refugee status does not cease when one becomes a lawful permanent resident, “and that acquisition of lawful permanent residence is not a basis for cancellation of refugee status.” In N-A-I-, the Board disposed of this opinion by such a highly informed and respected source by stating in a footnote that “UNHCR’s opinion is not binding on us or controlling as to our construction of the Act.”
The Board did consult the UNHCR Handbook, which has been relied upon by the U.S. Supreme Court, various circuit courts, and the BIA itself as a “useful tool in construing” U.S. obligations under the 1967 Protocol, the binding international treaty which forms the basis of U.S. asylum law. In doing so, the Board in N-A-I- conceded that adjustment of status did not fall within any of the cessation clauses listed under the Protocol. However, the Board focused on a paragraph of the UNHCR Handbook stating that refugee protection need no longer be applied to a refugee who “for whatever reason, no longer wishes to be considered a refugee.” From this, the Board concluded that adjusting one’s status constitutes the voluntary surrender of asylee status. In finding the “surrender” to be “voluntary,” the Board ignored the fact that the asylee is not warned on the Form I-485 or at the adjustment interview that by adjusting status, he or she is terminating asylum status and is thereby exposing his or herself to the possibility of removal to the country from which they sought refuge. Thus, in reaching its conclusion, the Board contradicted the plain meaning of both the statutory language and the language of the UNHCR Handbook, the informed opinion of UNHCR, and common sense.
To support its position that adjustment of status is a voluntary surrender of asylum status, the Board needed to provide an alternative to the purportedly voluntary act. It therefore claimed that one “who prefers to retain the benefits and protections of asylee status, including the restrictions against removal under section 208(c) of the Act, is not obligated to file an application for adjustment of status.” This is a disingenuous statement, as first, no one would prefer to remain a refugee forever, and second, the statute itself states that asylum conveys only a temporary status. Furthermore, the law should not encourage individuals with a direct path to permanent status to instead live their lives in indefinite limbo in this country.
It will be interesting to see whether the United States Court of Appeals for the Fifth Circuit (under whose jurisdiction the present case arose) will decline to accord Chevron deference to the Board’s decision for the reasons stated above.
Copyright 2017 Jeffrey S. Chase. All rights reserved.