INS Advises on Asylee Exception to Unlawful Presence (6-8-99)

Memorandum for Regional Counsel

All Regional and Service Center Directors

Acting Director, Office of International Affairs

From: Bo Cooper

Acting General Counsel

Office of the General Counsel

Michael A. Pearson

Executive Associate Commissioner

Office of Field Operations

Subject: INA 212(a)(9)(B)(iii)(II): Asylee Exception to Unlawful Presence

This memorandum outlines the procedures INS will follow to determine whether an alien qualifies for the statutory exception to inadmissibility under 212(a)(9)(B)(iii)(II) of the Immigration and Nationality Act (the Act) which reads are follows:

Asylees. – No period of time in which an alien has a bona fide application for asylum pending under section 208 shall be taken into account in determining the period of unlawful presence in the United States under clause (i) unless the alien during such period was employed without authorization in the United States.

See Service memoranda 96Act 026 March 31, 1997, 96Act 043 dated June 17, 1997, and 96Act 058 dated September 19, 1997, for additional information regarding the calculation of unlawful presence under section 212(a)(9) of the Act.

 

Client Reviews

 

How shall the Attorney General determine whether an asylum application is “bona fide” and pending for purpose of 212(a)(9)(B)(iii)(II) of the Act?

 

The INS, in its implementing regulations, will define broadly the term “bona fide” as an application having any arguable basis in law or fact. The Service considers the asylum application to be pending during any administrative or judicial review (including review in federal court) of the application.

 

When will the Attorney General determine whether an alien qualifies for the exception for asylees?

 

The INS will make this determination when the issue of admissibility under INA 212(a)(9)(B) is raised at the time of application for a visa, admission at a Port-of-Entry (POE), or in an adjustment of status proceeding before the INS. If the determination of inadmissibility turns solely on whether or not the alien qualifies for the exception at 212(a)(9)(B)(iii)(II) of the Act, the case should be referred to the Headquarters Office of Asylum per the instruction set forth below.

It is important to note that a denial of an asylum claim is not determinative of whether or not the claim was bona fide while it was pending for purposes of section 212(a)(9)(B)(iii)(II) of the Act. Similarly, abandonment of an application for asylum does not mean that the application was not bona fide. The Headquarters Office of Asylum is responsible to make the determination based on the specific facts of each case.

A list of standard questions to be posed to the alien applicant appears as an attachment to this memorandum. The process for making this determination is as follows:

Scenario 1 / Consular Setting

A consular officer may have reason to question whether an alien applicant for a visa is inadmissible under INA 212(a)(9)(B)(i)(I) due to departure from the United States after the accrual of unlawful presence of more than 180 days but less than one year prior to the commencement of proceedings, or under INA 212(a)(9)(B)(i)(II) due to departure from the United States after the accrual of one year or more of unlawful presence, and whether the alien qualifies for any of the statutory exceptions at INA 212(a)(9)(B)(iii). If the consular officer seeks confirmation of the alien’s eligibility for the exception for “asylees” — actually, applicants for asylum – [INA 212(a)(9)(B)(iii)(II)], the request for confirmation that the alien had a pending, bona fide application[1] for asylum shall be referred from the consular post to the Headquarters Office of Asylum with a courtesy copy to the Department of State, Consular Affairs Bureau, Visa Office. The consular officer shall elicit relevant information from the alien about any periods of unlawful employment during the pendency period of any such asylum application. Any period of unauthorized employment will disqualify the alien from the asylee exception, in which case the steps below can be omitted.

What steps will the Headquarters Office of Asylum take upon referral from the consular officer?

1. Check RAPS to see whether the asylum application was filed with an INS Asylum Office. If an affirmative application was filed, locate documents within the local Asylum Office to determine whether the application was bona fide. If no documentation is in the Asylum Office to ascertain this information, check CIS for the location of the Service A-File;
2. If CIS shows the A-File is charged to the District Counsel’s office at an FCO, at the request of HQ Asylum, the District Counsel shall search the Service A-File and forward a photocopy of any I-589, attachments, interview notes, and AO decision on the case to HQ Asylum;
3. If CIS shows the A-File is at a District Office, other than with the District Counsel’s office, a Service Center or at the Federal Records Center, HQ Asylum will request the A-File;
4. HQASM will review the asylum application, supporting documents and/or case assessment, if located;
5. Notify within 60 days from the date of referral the DOS Visa Office of INS determination of bona fides or that the INS has no record of an asylum application; and
6. The consular officers may presume the application for asylum is bona fide if HQ Asylum has not notified the consular post of its findings within 60 days from the date of referral.

 

Scenario 2 / Port-of-Entry

An immigration officer at a POE may have reason to question whether an alien applicant admission is inadmissible under 212(a)(9)(B)(i)(I) due to departure from the United States after the accrual of unlawful presence or more than 180 days but less than one year prior to the commencement of proceedings, or under INA 212(a)(9)(B)(i)(II) due to departure from the United States after the accrual of one year or more of unlawful presence, and whether the alien qualifies for any of the statutory exceptions at INA 212(a)(9)(B)(iii). If the immigration officer seeks confirmation of the alien’s eligibility for the exception for “asylees” – actually, applicants for asylum – [INA 212(a)(9)(B)(iii)(II)], the request for confirmation that the alien had a pending, bona fide asylum application[2] shall be referred through the District Director having jurisdiction over the POE to the Headquarters Office of Asylum. The POE shall elicit relevant information from the alien about any periods of unlawful employment during the pendency period of any such asylum application. Any period of unauthorized employment will disqualify the alien from the asylee exception, in which case the steps below can be omitted.

While the Office of Headquarters Asylum is reviewing the specific facts of the case, the POE may proceed with any action relating to the exercise of discretion to refuse admission if there is another statutory basis of inadmissibility, permit withdrawal, or grant parole for deferred inspection.

 

What steps shall the Service take?

 

1. The District Director having jurisdiction over the POE shall check CIS for location of any applicable Service A-file;
2. If CIS shows the A-File is charged to the District Counsel’s office at an FCO, at the request of HQ Asylum, the District Counsel shall search the Service A-File and forward a photocopy of any I-589, attachments, interview notes, and AO decision on the case of HQ Asylum;
3. If the A-file is charged to another unit within the District in question, the District Director shall forward the file to the Headquarters Office of Asylum;
4. The Headquarters Office of Asylum shall request Service A-file if CIS shows the FCO is at a Service Center; another District or Suboffice, or a Federal Records Center;
5. The Headquarters Office of Asylum shall review asylum application, if located; and
6. The Headquarters Office of Asylum shall notify the District Director having jurisdiction over the POE whether the asylum application has been located and whether it was bona fide.

 

Scenario 3 / Adjustment of Status before the Service

An immigration officer may have reason to question whether an alien applicant for adjustment of status is inadmissible under INA 212(a)(9)(B)(i)(I) due to departure from the United States after the accrual of unlawful presence of more than 180 days but less than one year prior to the commencement of proceedings, or under INA 212(a)(9)(B)(i)(II) due to departure from the United States after the accrual of one year or more of unlawful presence, and whether the alien qualifies for any of the statutory exceptions at INA 212(a)(9)(B)(iii). If the immigration officer seeks confirmation of the alien’s eligibility for the exception for “asylees” — actually, applicants for asylum – [INA 212(a)(9)(B)(iii)(II)], the request for confirmation that the alien had a pending, bona fide asylum application[3] shall be referred through the District Director or Service Center Director having jurisdiction over the adjustment proceeding to the Headquarters Office of Asylum. The Service Center Director shall elicit relevant information from the alien about any periods of unlawful employment during the pendency period of any such asylum application. Any period of unauthorized employment will disqualify the alien from the asylee exception, in which case the steps below can be omitted.

It is important to note that the bars under section 212(a)(9)(B) do not apply in the case of an alien who has accrued sufficient time unlawfully present but who has not departed the United States. In the adjustment of status scenario, it is critical to examine the record to determine whether the alien departed the United States after having accrued sufficient time unlawfully present.

 

What steps shall the Service take?

 

1. The District Director or Service Center Director shall check CIS for location of any applicable Service A-file;
2. If CIS shows the A-File is charged to the District Counsel’s office at an FCO, at the request of HQ Asylum, the District Counsel shall search the Service A-File and forward a photocopy of any I-589, attachments, interview notes, and AO decision on the case of HQ Asylum;
3. If the A-file is charged to another unit within the District in question, the District Director shall forward the file to the Headquarters Office of Asylum;
4. The Headquarters Office of Asylum shall request Service A-file if CIS shows is a Service Center, District or Sub-office or a Federal Records Center;
5. The Headquarters Office of Asylum shall review asylum application, if located; and
6. The Headquarters Office of Asylum shall notify the District Director or Service Center Director having jurisdiction over the application for adjustment of status whether the asylum application has been located and whether it was bona fide.

 

Scenario 4 / Adjustment of Status before the Immigration Judge

In the event the alien has filed an adjustment of status application in the first instance before an immigration judge and the applicant is before the immigration judge, the issue of whether the application is the bona fide of the asylum application and admissibility and eligibility for adjustment of status rests with the Executive Office of Immigration Review.

 

Who is the Point of Contact for additional information?

 

For additional information concerning the construction of unlawful presence or the statutory exceptions under 212(a)(9)(B)(iii) of the Act, please contact Sophia Cox, Adjudications Officer, at 202/514-3228. For additional information about asylum issues or referrals to the Headquarters Office of Asylum, please contact Karlee Arey at 202/307-2180. For additional information about the District Counsel review of Form I-589, please contact Susan Houser, Office of the General Counsel, at 202/514-2895.

Attachment

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Footnotes:

 

[1] The fact that the Service granted advanced parole to the alien to return to the United States to pursue the asylum claim is not determinative that the asylum application is “bona fide.”

[2] Id.

[3] Id.

 

 

Attachment

 

Standard Questions for Aliens Seeking Exception to Inadmissibility Based on INA 212(a)(9)(B)(iii)(II)

 

1. When did you live in the United States?
2. Where did you live in the United States (city and state)?
3. Did you work while living in the United States? If so, were you authorized by the Immigration and Naturalization Service (INS) to work in the United States?
4. If yes, what type of work authorization document did you receive from the INS?
5. When did you file an asylum application in the United States?
6. Where did you file your asylum application?
7. What is your complete name, date of birth and A#?

 

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